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Donald L. Corbin, Justice.
Appellant, Tony Lamont Cooley, appeals a judgment of the Pulaski County Circuit Court convicting him of robbery, residential burglary, felon in possession of a firearm, two counts of aggravated robbery and two counts of theft of property. The circuit court tried appellant and sentenced him as a habitual offender with four or more prior felonies to concurrent sentences resulting in a term of fifty years in the Arkansas Department of Correction. Appellant’s sole point of error in the proceedings below is the failure of the judgment to reflect the trial court’s statement from the bench that he receive jail credit for one year and three days. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2).
The state does not dispute that appellant is entitled to the jail credit pursuant to Ark. Code Ann. § 5-4-404 (Repl. 1993). According to the state, the judgment does not reflect the jail credit due to a clerical mistake. Consequently, the state does not object to modification of the judgment to reflect the credit. The state does argue, however, that appellant did not seek relief from the trial court prior to filing this appeal and therefore suggests the case should be remanded for modification.
Appellant contends we should address his argument, even though it is made for the first time on appeal, either because he received an illegal sentence or because, pursuant to Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), he did not have an opportunity to review the judgment before it was filed. Neither of these arguments has merit for the reasons discussed below.
First, an illegal sentence is one that is illegal on its face. Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989). When the sentence given is within the maximum prescribed by law, as was appellant’s sentence, it is not illegal on its face. Id. Second, regardless of whether appellant had an opportunity to review the judgment before it was filed, he certainly had an opportunity to review it after it was filed and seek correction of the judgment below pursuant to A.R.Cr.R Rule 37 since no appeal was pending.
In the conclusion of his brief, appellant cites Arkansas Code Annotated § 16-65-119(b) (1987) as authority for this court to modify the judgment on appeal. However, subsection (c) of that statute provides that the proceedings to obtain modification shall be by appeal as prescribed by law. It is well-settled law that issues raised for the first time on appeal are not considered by this court. E.g., Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994). Therefore, section 16-65-119(b) does not authorize modification on appeal when there was no request for modification below.
This court has previously decided that a request for jail time credit is a request for modification of a sentence imposed in an illegal manner. Delph, 300 Ark. 492, 780 S.W.2d 527; see Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995). A claim that a sentence was imposed in an illegal manner must be raised in a petition filed with the circuit court under Rule 37. A.R.Cr.P. Rule 37.2(b); Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995) (per curiam) (citing Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam)). No such petition was filed in this case.
Because modification of the sentence is the only issue raised on appeal, and because both parties agree as to the correction of the sentence, we are somewhat inclined to modify the judgment and affirm as modified. See Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979), and Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). However, neither Abbott nor Walters considered Rule 37 and its application or effect. Rule 37 requires that the merits of the modification of the sentence be determined by the circuit court. Therefore, we feel constrained to dismiss the appeal rather than modify the judgment.
Appellant is not left without a remedy, however. As applied to this case, Rule 37.2(c) provides that if an appeal was taken of the judgment of conviction, a petition for relief under the rule must be filed with the circuit court within sixty days of the issuance of the mandate or dismissal of the appeal. Thus, appellant has sixty days from this dismissal to seek correction of his sentence which was imposed in an illegal manner.
The appeal is dismissed. | [
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Donald L. Corbin, Justice.
Appellants, National Enterprises, Inc. (“NEI”), and Horace M. and Betty J. Nix, appeal the order of the Garland County Chancery Court denying their post-judgment motion to intervene in this foreclosure action pursuant to ARCP Rule 24. Jurisdiction of this appeal is properly in this court as a case in which the interpretation or construction of Rule 24 is in question. Ark. Sup. Ct. R. l-2(a)(3). Because we affirm the chancellor’s threshold determination that the motion to intervene was untimely, we need not address other arguments raised in this appeal. Employers Nat’l Ins. Co. v. Grantors to the Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 936 (1993); Cupples Farms Partnership v. Forrest City Prod. Credit Assoc., 310 Ark. 597, 839 S.W.2d 187 (1992).
The decision as to the timeliness of a motion to intervene belongs to the trial court and is not reversed absent an abuse of discretion. Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Cupples Farms Partnership, 310 Ark. 597, 839 S.W.2d 187. With respect to post-judgment motions to intervene, the general rule is that “intervention will be allowed only upon a strong showing of entitlement by the applicant or a demonstration of unusual and compelling circumstances and the courts have shown a strong reluctance to grant intervention after a final judgment.” UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 102, 752 S.W.2d 36, 38 (1988). Accord Arkansas Dep’t of Health v. Westark Christian Action Council, 319 Ark. 288, 890 S.W.2d 582 (1995); Arkansas Best Corp., 317 Ark. 238, 878 S.W.2d 708. We find that appellants have not met that test.
Appellee, Union Planters National Bank of Memphis, commenced this foreclosure action in 1988 with respect to certain real and personal property referred to as the Lake Hamilton Resort and Conference Center, formerly known as the Hot Springs Sheraton (the “Hotel”). The foreclosure action was based upon a mortgage and security agreement made on August 12, 1983, between appellee, as mortgagee, and Painter’s Point Development Company Limited Partnership (“Painter’s Point”), as mortgagor, and filed for record on August 12, 1983. In 1990, the chancellor entered a foreclosure decree that awarded a money judgment for appellee against Painter’s Point, declared appellee’s interest superior to all other interests in the Hotel, and mandated the sale of the Hotel by public auction; a subsequent order confirmed the sale of the Hotel to appellee.
On July 7, 1994, appellants filed their motion to intervene, seeking intervention as a matter of right under Rule 24. Appellants filed a complaint for intervention on August 30, 1994. In their pleadings, appellants alleged that NEI owns the unsold timeshare units and the Nixes are time-share unit owners in a condominium located on property that is adjacent to and surrounded by the Hotel (the “Condominium”). Appellants claimed an interest in the Hotel, for purposes of Rule 24, based primarily upon a written agreement purporting to create a nonexclusive license for the benefit of certain time-share unit owners in the Condominium with respect to the Hotel (the “License Agreement”). Appellants alleged that their interest in the Hotel, pursuant to the License Agreement, entitled them to notice and to be made parties to the foreclosure action, that appellee’s failure to do so operated as a fraud against them, and, therefore, the foreclosure sale and decree should be set aside pursuant to ARCP Rule 60.
The License Agreement was made on June 20,1985, between Lakeshore Resort and Yacht Club Limited Partnership (“Lakeshore”) and Painter’s Point. The License Agreement extended to and included the successors and assigns of each signatory. The License Agreement expressly conveyed the use, enjoyment and benefit of all recreational amenities and twenty unidentified parking spaces owned by Painter’s Point and employed in the operation of the Hotel to Lakeshore as an irrevocable nonexclusive grant of license. The License Agreement recited that the use of the recreational amenities and parking facilities would be extended to each timeshare condominium purchaser that purchased from Lakeshore. A memorandum of agreement, subsequently executed by. Lakeshore and Painter’s Point, acknowledged the terms of the License Agreement.
After a hearing, the chancellor dismissed appellants’ motion to intervene by order filed on October 31, 1994. This appeal arises therefrom.
Entitlement to intervene as a matter of right requires that the applicant establish a sufficient interest in the property that is the subject of the action. UHS of Arkansas, Inc., 296 Ark. 97, 752 S.W.2d 36. Here, the chancellor ruled that appellants failed to timely exercise a sufficient interest in the Hotel. We cannot find that the chancellor’s ruling was clearly erroneous. First, the record fails to provide any proof of appellants’ purported time-share ownership interests in the Condominium, e.g., a document of title, or that their purported ownership interests were acquired from Lakeshore, and, therefore, were subject to the License Agreement. Second, the record reveals that the License Agreement was entered into after the date of recordation of appellee’s mortgage and security agreement. See Amstar/First Capital, Ltd. v. McQuade, 42 Ark. App. 185, 187, 856 S.W.2d 326, 327 (1993) (“It has long been the law in this State that nothing can be done by the mortgagor, subsequent to the execution of a valid mortgage, which can impair the rights of the mortgagee.”) Third, the record reveals that, in separate litigation between NEI and the Hotel’s apparent current owner, Lake Hamilton Resort, Inc., the chancellor held that the License Agreement did nothing more than create a license without any estate or interest in the Hotel; the record fails to reveal that any appeal therefrom was perfected.
An additional factor in establishing entitlement to intervene as matter of right is whether the applicant’s interest is adequately represented by the existing parties to the litigation. UHS of Arkansas, Inc., 296 Ark. 97, 752 S.W.2d 36. An interest is adequately represented when the interest of a party to the litigation is identical or not significantly different from that of the proposed intervenors. Id. The record reveals that Lakeshore was named and duly served with a summons as a party-defendant by appellee in the foreclosure proceedings, but made no appearance. Logically, as a signatory to the License Agreement and appellants’ purported predecessor-in-title with respect to the Condominium, its interest in the Hotel was identical to or not significantly different from that of appellants. Appellants, however, do not address the issue of whether their interest was adequately represented by Lakeshore for purposes of Rule 24.
Although the foreclosure action proceeded to judgment approximately four years before their motion to intervene was filed, appellants argued that they acted timely because the Nixes attempted to intervene shortly “after they were denied access to utility services and the use of recreational factualities [sic] as part of their time share unit” and because NEI did not acquire its interest in the Condominium until May 1994. We do not consider this argument due to appellants’ failure to provide any proof of the date of acquisition of their purported ownership interests in the Condominium, or of any denial of their alleged rights under the License Agreement. Appellants also argue that they and more than one thousand other condominium unit owners will be left “landlocked” and deprived of the use and enjoyment of their property if they are denied their alleged rights under the License Agreement. However, the record reveals that in the above-mentioned related litigation filed by NEI, the chancellor granted an easement by way of necessity for purposes of ingress and egress to NEI’s property. Further, appellants’ argument that their loss of the use of the unspecified recreational amenities and twenty unidentified parking spaces granted under the License Agreement constitutes an “unusual and compelling” circumstance is not persuasive.
The chancellor deemed the motion to intervene untimely. On this record, we find no abuse of discretion. The ruling is affirmed.
Rule 24 provides, in pertinent part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that .the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
National Enterprises, Inc. v. Lake Hamilton Resort, Inc., Garland County Chancery Court Case No. 94-705. Order entered August 30, 1994, as abstracted. | [
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Per Curiam.
Appellants have filed a motion to stay the enforcement of the order of the chancery court declaring void Acts 1 and 2 of the First Extraordinary Session of 1995 and enjoining the December 12,1995 special election called pursuant to Act 1 of the First Extraordinary Session of 1995. Appellants’ motion for stay is hereby granted. The parties are requested to brief the subject matter jurisdiction issue. The briefing schedule previously set will be followed such that subject matter jurisdiction may be briefed in the reply briefs due November 29, 1995.
Glaze, J., concurs.
Dudley and Newbern, JJ., dissent. | [
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David Newbern, Justice.
This is a workers’ compensation case decided by a tie vote of the Court of Appeals. Cook v. Recovery Corp., 50 Ark.App. 49, 900 S.W.2d 212 (1995). The appellant, Danny Cook, was injured while employed simultaneously by the appellees, City of Osceola and Recovery Corporation. He claimed benefits from each employer. The Workers’ Compensation Commission held Mr. Cook’s maximum permanent total disability benefits to be 66 2/3% of the average combined wages of his two employers. Given the statutory benefits cap at the time of the injury, the benefits were limited to $226.11 per week. Had the Commission not combined the wages but considered them separately, the benefits would have been $153.28 from the City and $146.03 from Recovery Corporation. Neither award would have exceeded the cap, so Mr. Cook would have received $299.31. The issue is the meaning in these circumstances of “average weekly wage,” as that term is used in Ark. Code Ann. § 11-9-518 (1987). We agree with the prevailing Court of Appeals opinion which affirmed the Commission’s ruling.
Mr. Cook supervised city incinerator employees. Recovery Corporation hired him to supervise its employees who worked at the incinerator disposing of medical waste in accordance with a contact with the City. For an eight-hour shift Mr. Cook was paid by )oth the City and Recovery Corporation, with one paycheck from he City and a separate paycheck from Recovery Corporation.
The injury occurred when Mr. Cook inhaled formaldeyde fumes. The parties agree that at the time he was injured, Mr. look was a “joint employee” of the City and Recovery Corpoition. A definition of “joint employment” can be found in IB arson’s Workmen’s Compensation Law, § 48.41 at 8-553 (1995):
Joint employment occurs when a single employee, under contract with two employers, and under simultane ous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or closely related to, that for the other.
If an employee is engaged in “joint employment,” meaning performing for and under the control of two employers at the same time, the liability for workers’ compensation benefits is joint. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W.2d 397 (1977). See also Ridgeway Pulpwood v. Baker, 1 Ark.App. 214, 646 S.W.2d 711 (1983).
Section 11-9-518(a)(1) provides: “Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident. . . .”
Section 11-9-518 has been interpreted by the Court of Appeals in the context of multiple employers of an injured employee, but not in a case like the one now before us. In two cases, the claimant was an employee of two employers, but the work was separable. Hart’s Exxon Service Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark.App. 1980); Curtis v. Ermert Funeral Home, 4 Ark. App. 274, 630 S.W.2d 57 (1982). In each of those cases it was held that the employer for whom the employee was providing services at the time of the accident was responsible but that the second employer was not. The decisions were based on statutory language, now codified in Ark. Code Ann. §§ 11-9-102(19) (Supp. 1993) and ll-9-518(a)(l) (1987), referring to the “average weekly wage” as that “earned by the employee under the contract of hire in force at the time of the accident.” In Marianna School Dist. v. Vanderburg, 16 Ark.App. 271, 700 S.W.2d 381 (1985), Ms. Vanderburg was employed by the Marianna School District as a bus driver. During hours between the morning and afternoon bus runs, she was employed by the District, under a separate contract, as a cafeteria worker. She sustained a compensable injury while driving a bus. Although there was no statute allowing it, the Court of Appeals held the wages of the two employments were to be combined to determine average weekly wage. The Curtis case was distinguished on the ground that the District paid a single workers’ compensation premium for the employee and there was no second employer who would be unfairly treated by having to compensate an employee for an injury not related to the contract with that employer.
No one has attempted or suggested sorting out precisely for whom Mr. Cook was performing his job when the accident occurred and thus limiting him to recovery from one employer only. By engaging in joint employment, Mr. Cook gets the benefit of joint liability of his two employers for workers’ compensation benefits, but he is unwilling to accept the burden imposed by the cap which is exceeded when the wages are combined.
The law in effect at the time of Mr. Cook’s injury required that the statutes be interpreted liberally to accomplish the remedial purpose of the Workers’ Compensation Act. Ark. Code Ann. § ll-9-704(c)(3) (1987). Nothing about limiting compensation to a maximum amount prescribed in the Act violates the remedial purpose of the Act. There was no requirement that a case be decided in favor of a claimant when the law was clearly stated in a manner not supportive of his or her claim. The fact that it may be paid by two employers inflicts no ambiguity upon the term “average weekly wage.”
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Per Curiam.
In response to appellee’s motion for disqualification, Justices Robert H. Dudley, Tom Glaze, and Donald Corbin recuse but not for any of the reasons set out in her motion. Appellee’s attorney, J. L. Wilson, was sanctioned in federal court as a result of a criminal conviction and is now the subject of disciplinary proceedings before the State Professional Conduct Committee and disbarment proceedings before the Phillips County Circuit Court which have been remanded to federal court. Because these named justices intend to seek Rule 11 sanctions to be imposed against attorney J. L. Wilson and his attorneys for filing a no-merit petition in federal court, we recuse. | [
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Tom Glaze, Justice.
Appellant Ira Russey was convicted by a jury of first-degree murder of his wife and sentenced to forty years’ imprisonment. His sole point for reversal is that the trial court abused its discretion by allowing into evidence a police officer’s testimony regarding a domestic violence incident which occurred between Ira and his wife, Diane, before the date he shot and killed her.
The state’s evidence showed that, sometime in April of 1994, Diane left Ira, and moved into her mother’s, Ruby Irvin’s, house. Ira had professed his love for Diane, and wanted her to return to him. On June 2, 1994, Ira observed Diane in a car with a man named “Greg,” and later that same day, Ira waited for Diane at Diane’s mother’s house. Diane arrived in her mother’s car and an argument ensued between her and Ira. Diane fled back into the car where Ira broke the windows and hit Diane in the face, causing her to be taken to the hospital. On the morning of June 3, Diane swore out a warrant for Ira’s arrest.
The state also presented testimony by other witnesses, Diane’s grandmother, Mozella Ward, and Margaret Thomas, that Ira had said nobody else could have Diane and that he was going to kill her. In fact, both the state and Ira agree that, early on the morning of June 5, 1994, Ira took his loaded shotgun to Mrs. Irvin’s house and confronted Diane about her having been with Greg. Ira testified that he had not intended to shoot Diane, but when she said, “Don’t you worry about what me and Greg were doing,” he said, “My mind snapped — I went to throw the shotgun and that’s how I shot her in the arm.” Ira further related the shot “blew out the bottom part of her arm,” and then he left the scene. Diane was hospitalized, but died on June 18, 1994. At trial, Ira claimed the shooting was accidental.
The state also called Detective Lawrence Welborn as a witness to testify concerning a disturbance call which had taken place on April 27, 1994 — thirty-nine days prior to the June 5 shooting. Over Ira’s objection, the trial court permitted Welborn to testify that, when he responded to the April 27 disturbance call at the Russey’s residence, he had observed a loaded shotgun lying on a bed, and he unloaded it and returned it to Ira. Diane gathered her clothes and left the house. During his direct examination, Welborn was shown the shotgun Ira used in shooting his wife, and he said that it was the same gun he had seen at the April 27 incident.
In this appeal, Ira urges that the state offered Welborn’s testimony only for the purpose of showing Ira’s propensity for violence. He also argues that, if this testimony had any relevance, it was to show Ira was “in the vicinity of a shotgun,” and such evidence was more prejudicial than probative because the state had other means of proving Ira had access to a gun.
Here, the state was. required to prove Ira killed his wife with the purpose of doing so. Ark. Code Ann. § 5-10-112(a)(2) (Repl. 1994). This court has recognized that intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Although A.R.E. Rule 404(b) prohibits evidence of other crimes, wrongs, or acts to prove the character of a person, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).
Because Ira claimed he shot his wife accidentally on June 5, Detective Welborn’s testimony concerning the April 27 domestic violence call was relevant to show lack of mistake or accident on Ira’s part. At the very least, Welborn’s testimony showed, by fair inference, that Ira and his loaded shotgun necessitated a call and an investigation by the police. Moreover, that disturbance involved the same shotgun Ira used only five weeks later when he shot and killed his wife. Also, based on the cir cumstances, we cannot say Welborn’s testimony was unduly prejudicial.
For the above reasons, we affirm. | [
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Per Curiam.
Appellant Dan Morrissey was convicted in a bench trial in 1994 of attempted rape and sentenced to seven years imprisonment; no appeal was taken. Morrissey has filed a timely motion for belated appeal. See Rule 2(e) of the Revised Rules of Appellate Procedure — Criminal; A.R.Cr.P. Rule 36.9 (predecessor of Rule 2(e)). When a good reason for the omission is shown by affidavit, this Court may act upon and decide a case in which the notice of appeal was not given. Rule 2(e) of the Revived Rules of Appellate Procedure — Criminal; A.R.Cr.P. Rule 36.9 (superseded); see also Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994) (decided under A.R.Cr.P. Rule 36.9).
In the instant case, Morrissey contends his failure to file a timely notice of appeal was predicated on erroneous advice by his trial counsel. Morrissey’s affidavit states that he strongly expressed to his trial counsel his desire to appeal. However, according to the affidavit, Morrissey’s counsel informed him that he stood the risk of being again charged with rape, rather than only attempted rape, where he could face a life sentence. Morrissey also submits he was advised that appealing his sentence would be futile because he would go before the same judge. Morrissey avers that his trial counsel did not advise him that the trial judge could sentence him to a harsher sentence only if some additional conduct had occurred since the sentencing.
In sum, Morrissey submits that his trial counsel’s advice constituted ineffective assistance of counsel and such a reason constitutes good cause for the failure to file a notice of appeal. Morrissey’s trial counsel, Ed Webb, has not responded to the motion. However, there is no indication that Mr. Webb was ever served with a copy of the motion. Consequently, we remand this case to the trial court for an evidentiary hearing and Findings of Fact and Conclusions of Law on the question of whether Morrissey knowingly waived his right to appeal the conviction. See Salam v. State, 300 Ark. 630, 781 S.W.2d 30 (1989). | [
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Per Curiam.
The Arkansas Bar Association, by and through its Lawyer Referral Service Committee, has petitioned this court pursuant to Ark. Code Ann. § 16-22-101 (a) (Repl. 1994) for approval of the operation of its Lawyer Referral Service. The Arkansas Bar Association seeks approval of a referral fee of ten percent of any fee over $500.00 collected by an attorney who receives the fee as a result of a referral given by the Arkansas Bar Association’s Lawyer Referral Service.
It has been a longstanding custom and practice for the court to refer requests of this nature to our respective committees for study, comment, and recommendations to the court. Accordingly, the Arkansas Bar Association’s petition is referred to the Committee on Professional Conduct. The committee is to furnish the court within a reasonable period of time its recommendations as to the ethics of the proposal.
Dudley, J., concurs. | [
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Per Curiam.
In 1993 appellant Michael Thomas Hamilton was found guilty of manslaughter and sentenced to a term of ten years imprisonment. We affirmed. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). The mandate of this court was issued on May 19, 1995. On August 1, 1995, seventy-four days after the mandate was issued, appellant filed in the trial court a petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (b) (1) (Supp. 1993). The petition was denied, and the record has been lodged on appeal. The appellee seeks by motion to have the appeal dismissed on the ground that the petition filed in the trial court was untimely.
The motion is granted and the appeal dismissed as it is clear that the appellant could not prevail on appeal. This court has consistently held that an appeal of the denial of post-conviction relief will be dismissed where it is clear that the appeal is wholly without merit. Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).
Criminal Procedure Rule 37.2 (b) provides in pertinent part that all grounds for post-conviction relief from a sentence imposed by a circuit court must be raised in a petition under Rule 37. Arkansas Code Annotated § 16-90-111 (Supp. 1993) is in conflict with Criminal Procedure Rule 37 in that it permits claims for post-conviction relief to be raised under the statute. The statute permits a circuit court to reduce a sentence within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment of conviction. In contrast, Criminal Procedure Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued by the appellate court affirming the judgment.
Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved in favor of our rules. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994); see also Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (July 10, 1995; motion requesting publication of Per Curiam opinion granted September 11, 1995). The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition for post-conviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As appellant did not file his petition for post-conviction relief within the sixty-day period set by Rule 37 to file such a petition, the petition was untimely. Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).
Motion granted; appeal dismissed. | [
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Robert H. Dudley, Justice.
This is an interlocutory appeal from the certification of a class. See Ark. R. App. P. 2(a)(9). We affirm the certification. The facts are that Susan Montgomery filed a class-action complaint in which she alleged that Cheqnet Systems, Inc., committed multiple violations of the Fair Debt Collection Practices Act. See 15 U.S.C. § 1692 (1994). Cheqnet filed a motion to dismiss in which it contended that Montgomery failed to meet the requirements for class certification pursuant to Ark. R. Civ. P. 23. Montgomery filed an amended class-action complaint, again alleging that Cheqnet committed multiple violations of the Fair Debt Collection Practices Act. Montgomery’s allegation that is pertinent to this interlocutory appeal is that Cheqnet violated 15 U.S.C. §§ 1692e(2)(A) and 1692f(l) by collecting $10 more than it was entitled to collect under Arkansas law for returned checks. Section 4-60-103 (Repl. 1991) of the Arkansas Code Annotated provides a maximum collection fee of $15.00 per returned check, and Montgomery’s complaint alleges that Cheqnet collected or attempted to collect a fee of $25.00 on each returned check. In her amended complaint, Montgomery alleges that she represents the class of debtors who had been, continued to be, and would be adversely affected by the actions and omissions of Cheqnet. Cheqnet filed an answer to the amended complaint and objected to the motion to certify the class. Cheqnet contended that Montgomery did not pay the alleged overcharge for her returned check; therefore, her claim was not typical of the proposed class.
At the hearing on certification, Montgomery limited the class-certification request to the issue involving overcharge for returned checks as a violation of the federal Fair Debt Collection Practices Act. She called an assistant attorney general as her first witness. Cheqnet objected to testimony by the assistant attorney general on the ground that the attorney general’s office had obtained Cheqnet’s records through a civil investigation demand, and the attorney general is prohibited from publicly disclosing those records. See Ark. Code Ann. § 4-88-111 (Repl. 1991). After an extended colloquy between counsel for both parties, the witness, and the trial judge, the court sustained Cheqnet’s objection. This first colloquy covers five pages in the transcript. After the trial court’s ruling, counsel, the witness, and the trial court again engaged in a lengthy colloquy, four pages of transcript this time, and the following exchange occurred:
THE WITNESS: Your Honor, as a result of those written complaints that were received, Ms. Mikeless issued a civil investigative demand, which is basically a pre-litigation discovery tool.
THE COURT: And found they were doing this across the board.
THE WITNESS: Yes, sir.
THE COURT: Okay. Sure.
THE WITNESS: And that there were roughly over 3,000 —
THE COURT: Yeah, I knew —
THE WITNESS: — consumers that had been overcharged.
Counsel did not specifically object to the statement and did not move to strike it from the record.
Montgomery testified generally as to the underlying facts of the case, her involvement in the case, and her qualifications as class representative. Cheqnet called its general manager who testified that Cheqnet was in the process of repaying the individuals who had been overcharged. The witness testified that the repayment was pursuant to an agreement between Cheqnet, the Attorney General, and the State Board of Collections. During closing arguments, Cheqnet’s attorney stated that appellant had already started to send notices and repay the individuals it had overcharged. The following then occurred:
THE COURT: You’re talking between, say, thirty and $50,000.00.
MR. CROSS: Probably at a minimum.
THE COURT: Just roughly guessing, like I say, if there’s three to 5,000 people and maybe more, you know, out there. I’m just concerned that your client has the resources to do that. I don’t know that he does. He may. I don’t know.
Well, in any event, —
At the close of the hearing the court took the matter under advisement.
On March 6, 1995, the trial court held another hearing and ruled that the class would be certified. A third hearing was held on April 4, 1995, to determine the particulars of the order certifying the class and to discuss notice provisions and discovery of potential class members. The trial court entered the order certifying the class on April 5, 1995. The order defined the class as “all of those persons from whom Cheqnet Systems, Inc., attempted to collect, or actually collected, a $25.00 service fee per returned check.”
Cheqnet first argues that the trial court erred in allowing the assistant attorney general to testify to the number of people Cheqnet had overcharged since the information came to the attorney general’s office as a result of a civil investigation demand. The argument contains a fallacious assumption because the trial court did not make a ruling when the evidence came in. The only ruling made by the trial court was to sustain Cheqnet’s objection to the admission of documents taken in the attorney general’s civil investigation. The testimony about the number of people involved came four transcript pages later, and it came in when the assistant attorney general volunteered the information without objection, and without a motion to strike. Rule 103 of the Arkansas Rules of Evidence provides that when evidence is admitted, as this evidence was, the record must reflect a “timely objection or motion to strike . . . stating the specific ground of objection” or else any question about its admission is waived. Ark. R. Evid. 103(a)(1); Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). The evidence came in without objection and without a motion to strike. Thus, the trial court committed no error, and except in circumstances not material to this case, we do not reverse a trial court absent some error. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). In addition, Cheqnet’s attorney admitted the same information to the trial court. A party cannot admit a fact to the trial court, and then on appeal contend that the case must be reversed because that fact was not proven. Vin son Elec. Supply, Inc. v. Poteete, 321 Ark. 516, 905 S.W.2d 831 (1995). Cheqnet next argues that the trial court erred in certifying the class in this action. This court reviews class certification under an abuse of discretion standard. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); see also Union Nat’l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992) (noting the “longstanding rule that the trial judge has broad discretion in matters of class certification”).
Rule 23 of the Arkansas Rules of Civil Procedure provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Ark. R. Civ. P. 23(a). Rule 23 was amended to its present version by per curiam order in 1990. In re Changes to the Arkansas Rules of Civil Procedure, 304 Ark. 733 (1990). However, many of the principles found in cases prior to the amendment still apply. Union Nat'l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992).
The numerosity requirement is met. We have held that 184 class members were enough to satisfy the numerosity requirement. See Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In the present case, the proposed class possibly consists of 3,000 persons. While the exact number of the proposed class may not have been proved, “[t]he exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.” Brewer v. Friedman, 152 F.R.D. 142, 143 (N.D. Ill. 1993).
Rule 23(a) requires common questions of law or fact. Ark. R. Civ. P. 23(a)(2); International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). This requirement is met. Common questions of fact concern whether appellant charged $25 per dishonored check. Common questions of law concern the legality of appellant’s charging $25 per dishonored check and the applicability of the federal Fair Debt Collection Practices Act. These questions apply to the entire class of those individuals who were overcharged by appellant.
The third requirement under Ark. R. Civ. P. 23(a), the requirement of typicality, was fully addressed by this court in Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991). In that case, we quoted H. Newberg, Class Actions, § 3.13 (1985), as follows:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
Id. at 121, 813 S.W.2d at 243. The court in Summons further stated, “Although the Summonses’ allegations as to their injuries and damages are different from those they describe for other members of the class, their claims are typical in the sense that they arise from the alleged wrong to the class which includes the wrong allegedly done to them, and that is sufficient.” Id. The same can be said for the case at bar. Montgomery’s injuries and damages arise from the same wrong allegedly committed against the class — the collection or attempt to collect for dishonored checks in violation of Arkansas statutory law. The fact that the injuries and damages suffered as a result of the alleged wrongdoing may vary among class members does not make this action fail the typicality requirement, and the fact that Montgomery did not actually pay the overcharge does not keep her claim from being typical of the class since the class is defined as those persons from whom appellant collected or attempted to collect a $25 service fee per returned check. Cheqnet’s argument that Montgomery was not damaged involves a fact question that is common to all class members from whom appellant attempted unsuccessfully to collect $25.
Cheqnet argues that Montgomery cannot “fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). In Union National Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), we wrote that “the representative must simply ‘display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.’” Id. at 198, 823 S.W.2d at 882 (citations omitted). At the hearing on the motion to certify, Montgomery testified that this case concerned a violation of the Fair Debt Collection Practices Act and that the violation was overcharging people by $10.00. She testified that she was interested in pursuing the action. She testified that although she relocated to Florida, she stayed in regular contact with her attorney and that the case could only be maintained as a class action because “on an individual basis, this case isn’t much,” but that as a class action it could make a difference. Appellee’s testimony demonstrates more than the minimum requirements required under Barnhart. See also Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991).
Finally, this action also meets the requirements under Ark. R. Civ. P. 23(b) that the common question of law or fact predominate over individual questions and the maintenance of a class action is the superior method of handling the adjudication of the controversy. The question of predominance of common questions and superiority are “very much related to the broad discretion conferred on a trial court faced with them.” Summons v. Missouri Pac. R.R., 306 Ark. 116, 123, 813 S.W.2d 240, 243 (1991).
In summary, the trial court did not abuse its discretion in finding that a class action is a superior method of handling this controversy.
Affirmed.
Jesson, C.J., not participating. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Kelly Sean O’Neill, was convicted in municipal court of a violation of the implied consent law, codified at Ark. Code Ann. § 5-65-205 (Repl. 1993). O’Neill appealed his case to circuit court, and in a bench trial, the circuit judge affirmed his conviction and suspended his driver’s license for six months. His sole point of error on appeal is that the circuit court erred in not declaring the implied consent statute unconstitutional. We affirm.
The case was tried on a stipulation of facts. O’Neill conceded that officers had reasonable cause to request that he submit to a chemical test. Rather, he asserted at trial below as he does now on appeal that the implied consent statute has three different penalty provisions depending on the state of residence of the offender and the status of his driver’s license, and that these provisions are violative of the due process clause of Ark. Const, art. 2, § 8, and the equal protection clause of Ark. Const, art. 2, § 3 and § 18. O’Neill also complains that the statute allows for enhanced penalties for an Arkansas resident who has a valid driver’s license and prior violations, while there are no enhanced penalties for subsequent offenses committed by a resident without a license or a nonresident. Finally, O’Neill asserts that the statute is unconstitutional because it provides that a nonresident’s driving privileges may be suspended indefinitely. See Ark. Code Ann. § 5-65-205(e)(l) (Repl. 1993).
We recently disposed of these very arguments in Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995). In examining the implied consent statute under a rational basis standard, we observed that, while the legislature has created varying penalties for violation of the statute’s mandates, possession of an Arkansas driver’s license carries with it the implied obligation to abide by state driving laws. Id. at 648. We further recognized that both Arkansas residents who drive without a valid driver’s license and nonresidents who drive while their license or driving privilege is under suspension are subject to additional punishment. See Ark. Code Ann. § 27-16-301 and § 27-16-303 (Repl. 1994). Taking these factors into consideration, we concluded that the varying punishments of the implied consent statute were not devoid of a legitimate purpose. Id. at 649.
Like the appellant in Cook, O’Neill has no standing to challenge the validity of § 5-65-205(e)(l), which provides that a nonresident’s driving privileges may be suspended indefinitely. O’Neill, who was an Arkansas resident at the time of the offense, has not suffered injury as a result of this provision, nor does he belong to a class which is prejudiced by the law. Id.
For the reasons set out in the Cook case, we affirm the decision of the circuit court. | [
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David Newbern, Justice.
Raymond Wade Watson was convicted in a trial to the court without a jury of driving while intoxicated, first offense, and failure to maintain control of his motor vehicle. He was ordered to report to the Ozark Guidance Center (OGC) for presentence evaluation for the purpose of compilation of an Arkansas Highway Safety Program presentence report in accordance with Ark. Code Ann. § 5-65-109(a) (Repl. 1993). Upon advice of his counsel, Mr. Watson declined to report to the OGC. The Trial Court sentenced him to a fine and incarceration for 30 days with credit for time served and 29 days suspended.
Mr. Watson was held in contempt for his failure to attend the OGC, and his driving privilege was suspended until such time as he “elects to undergo that screening.” He contends the contempt ruling was in error because he should have had a jury trial on that issue and because his participation in the presentence procedure would violate his right not to incriminate himself. He also contends it was error to sentence him prior to receiving the presentence report. We uphold the contempt ruling and reverse and remand for resentencing upon receipt of the report.
1. Contempt
Mr. Watson was not entitled to a trial by jury with respect to the contempt citation because it was remedial and coercive in nature. We discussed the distinction between this kind of order and a punitive or criminal contempt citation in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). In that case, we found a fine to be punitive, but we pointed out the United States Supreme Court decision Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988), in which the remedial nature of a coercive contempt order was emphasized with the adage, “And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’” Mr. Watson had waived his right to a jury in the underlying proceeding, and that poses no issue in this appeal.
Mr. Watson’s refusal to obey the order was based on his counsel’s advice. His counsel argued to the Trial Court that Mr. Watson’s participation in the compilation of the presentence report would violate his privilege against self incrimination. The argument is based on § 5-65-109(c) which states “The report shall include, but not be limited to, the offender’s driving record, an alcohol problem assessment, and a victim impact statement where applicable.” His contention is that revelations by him in response to questions on those matters could cause an increase in his sentence.
In Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985), we rejected an argument that a presentencing report could violate one’s right not to incriminate oneself and said, “the act does not require a defendant to take any action whatever in response to the State’s proof or to the presentence report....” Evidently the issue was slightly different in that case, as the quoted holding does not address Mr. Watson’s point that requiring him to participate could violate his rights.
In People v. Baker, 526 N.E.2d 157 (Ill. 1988), the Illinois Supreme Court faced a similar issue. The situation was somewhat different in that the Illinois statutes provided for a presentence report but did not require it. It was held that, because the report was permissive only, it was improper for the Trial Court to have held the defendant, who refused to participate, in contempt. It was pointed out, however, that the privilege against self incrimination may be invoked during an evaluation intended to lead to a presentence report. The Illinois Court of Appeals had held that it was unnecessary for the defendant to attend the presentence evaluation in view of his right not to answer questions which could be incriminating. That holding was rejected in the Illinois Supreme Court’s decision.
The mere possibility that Mr. Watson may be asked questions, the answers to which may have the effect of causing the Trial Court to sentence more harshly than it otherwise might, does not excuse violation of the Trial Court’s order that he report to the agency charged with the responsibility of conducting an evaluation. His self-incrimination argument was, at best, premature. The contempt ruling was proper.
2. The sentence
Section 5-65-109(b) provides, “The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.” Mr. Watson argues that, as there has been no presentence report, it was a violation of the statute and error for the Trial Court to have sentenced him. The State responds that the violation was “invited error,” and thus it may not form the basis of a reversal, citing Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).
In the Morgan case a criminal defendant disrupted a trial and then asked the Trial Court to declare a mistrial. We held that “one who is responsible for error cannot be heard to complain of that for which he was responsible.” The problem with applying that rule in this case is that it would obviate the need for, and thus be inconsistent with, the contempt order. Section 5-65-109(b) clearly states that, in a bench trial, the court “shall not” pronounce sentence until the presentence report has been received. If we were to hold that Mr. Watson could be sentenced without a presentence report because he invited the error, we would contradict the mandatory language of the statute.
The Trial Court has taken action to see to it that a presentence report is received. In these circumstances, we reverse the sentence and remand the case for resentencing upon receipt by the Trial Court of the Arkansas Highway Safety Program report.
Affirmed in part, reversed in part, and remanded.
Glaze and Brown, JJ., dissent. | [
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David Newbern, Justice.
In the summer of 1993, 23 young ostriches belonging to the appellants, Don and Kathy Caplener, died. The Capleners sued Bluebonnet Milling Company (Bluebonnet) which manufactured the feed they had fed the ostriches. They also sued the feed wholesaler, Fry’s Reproductive Center (Fry’s), and the retailer, English Lawn, Garden & Feed (English). The Trial Court entered summary judgment in favor of the defendants. The Capleners contend summary judgment was inappropriate as a genuine issue of material fact remained whether defective feed caused the deaths of the Ostriches. We affirm due to the failure to produce evidence that the feed caused the ostriches to die. We also affirm on cross-appeal the Trial Court’s refusal to award attorney’s fees to the prevailing parties and his denial of English’s request for indemnification for litigation expenses from Bluebonnet.
Mr. Caplener’s deposition testimony was that his ostriches, which ranged in age from one month to four months, were being fed Bluebonnet Chick Starter. Between May 28, 1993, and June 9, 1993, four bags of the feed were purchased from English and used. On June 16, 1993, some of the ostriches began to show symptoms of illness.
Dr. James W. Mills, a veterinarian, executed an affidavit on September 9, 1993. He said he was called to treat the birds. He initially prescribed antibiotics and electrolytes and then flushing with water. The birds did not respond to the treatment. Dr. Mills then recommended changing to a different brand of feed. None of the treatments succeeded. From postmortem operations Dr. Mills discovered the feed had impacted in the birds’ stomachs and that caused their deaths. He stated, “blood tests . . . showed normal cultures . . . and no bacteria or infection present which could have caused death.”
The Capleners had a laboratory analysis performed on a sample of the feed which had been left in a feed pan after most of the Bluebonnet feed had been removed. The results from the first sample sent to the laboratory were negative, but a second sample contained four parts per billion of aflatoxin. It is undisputed that aflatoxin, in concentrated amounts, can be lethal to ostriches. According to Mr. Caplener’s deposition, lettuce or boiled eggs had been sprinkled on the Bluebonnet feed occasionally to encourage the birds to eat.
The complaint alleged the feed was adulterated due to the presence of aflatoxin. It was amended to add the allegation of failure to warn and, after the motion for summary judgment was filed, it was amended to allege liability based on the feed being indigestible.
In a deposition, Dr. Mills contradicted his earlier affidavit. He admitted that both e. coli and klebsiella pathogens were found in the intestines of the ostriches, and that death by bacterial pathogen could not be ruled out. His deposition testimony was also internally contradictory. At one point, Dr. Mills opined that the birds died from feed impaction, but in another part of his deposition, he stated he could not give a definite opinion as to why the birds died. Finally, when questioned on the quality of the feed, the following colloquy occurred:
MR. MEEKS [counsel for Bluebonnet]: What caused the impaction?
DR. MILLS: I don’t know the answer to that.
* 3= *
MR. MEEKS: Okay. Well, I guess what I’m asking: Are you going to testify at trial that there was something wrong with the food and that caused them to impact?
DR. MILLS: No, because I don’t know that there was anything wrong with the food.
MR. MEEKS: Okay.
DR. MILLS: And I can’t stand up and say that the food was bad. No, I can’t do that.
On August 15, 1994, Fry’s and English filed a joint motion for summary judgment. Bluebonnet moved for summary judgment on the same day. Both motions were based on the Capleners’ failure to produce evidence that the feed proximately caused the deaths of the birds. Attached to Bluebonnet’s motion were excerpts from the depositions of Dr. Mills and Richard Plant, a chemist who had examined some of the leftover feed and found low levels of aflatoxin. Mr. Plant said he was not an expert on the effects of aflatoxin on ratites and that he did not know how much aflatoxin it would take to kill an ostrich. He stated that his opinion was based simply on the fact that toxins are known to vary widely in their concentration within a batch of feed. He also stated that he was not going to testify that aflatoxin killed the birds. Also attached were affidavits from Dr. John Reagor, the head of the Texas Diagnostic Toxicology Department, and Dr. Karen Hicks-Alldredge, a veterinary expert on the care of ratites. Both concluded, based on the deposition testimony in the record, that the birds did not die from aflatoxin poisoning.
With their response to the motion for summary judgment the Capleners filed a second affidavit of Dr. Mills, dated August 17, 1994, in which he stated, in contrast to his deposition testimony, “I believe that there was something wrong with the commercial feed that prevented it from digesting properly. As I testified, I did not test the feed and could not say in what way the feed was defective.”
The Trial Court granted a motion by Bluebonnet to strike Dr. Mills’s second affidavit and granted the defendants’ motions for summary judgment. The Capleners moved for reconsideration. Attached to the motion, in addition to Dr. Mills’s two affidavits and excerpts from his deposition testimony, were several customer complaint forms which showed that other ostrich farmers had complained of molded feed. The Trial Court denied the motion for reconsideration.
The Trial Court also refused to award attorney’s fees and refused to order Bluebonnet to indemnify English and Fry’s for the cost of the litigation. The Capleners appeal from the summary judgment. Bluebonnet and English appeal from the denial of attorney’s fees, and English appeals from the denial of indemnification.
1. Material fact issue
When summary judgment is sought, the Trial Court must decide if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ark. R. Civ. P. 56(c); Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995); Forrest City Mach. Works v. Mossbacher, 312 Ark. 578, 851 S.W.2d 443 (1993).
Among the attachments to Bluebonnet’s summary judgment motion were excerpts from Dr. Mills’s deposition testimony as well as testimony of the toxicology expert who said the postmortem evidence did not indicate the ostriches died from aflatoxins. Also included was testimony of the ratite expert who concluded there was insufficient information to identify the specific cause of death of the ostriches.
Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof to demonstrate a remaining genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). When a party cannot present proof on an essential element of the claim, the moving party is entitled to judgment as a matter of law. Id.
In response to the motion for summary judgment, the Capleners were required to produce some evidence which would raise a material question of fact as to whether the feed manufactured by Bluebonnet caused the impaction. They submit that the second affidavit of Dr. Mills, in which he stated the feed was “indigestible,” was sufficient to create a fact issue as to whether the feed caused the birds to die. We hold that the Trial Court correctly excluded the second affidavit when considering the motions for summary judgment.
Our summary judgment rule, Ark. R. Civ. P. 56, is virtually the same as F.R.C.P. 56. The General Assembly adopted the Federal Rule 56 initially by Act 123 of 1961, and we continued to follow the federal model upon adoption of the Arkansas Rules of Civil Procedure which became effective in 1979. As we do with others of our rules modeled on the federal rules, we refer to federal court decisions in our interpretation of Rule 56. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 837 (1992); Short v. Little Rock Dodge, 297 Ark. 194, 795 S.W.2d 104 (1988).
While we have not addressed the issue, federal courts have held that an affidavit which is inherently and blatantly inconsistent with prior deposition testimony may not be used to establish a question of fact to ward off the granting of a summary judgment motion. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540 (9th Cir. 1975); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969); Vanlandingham v. Ford Motor Co., 99 F.R.D. 1 (N.D. Ga. 1993). See also Jacobs v. Fire Ins. Exch., 42 Cal.Reptr.2d 906 (Cal.App. 3 Dist. 1995). These cases indicate that a subsequent affidavit may perhaps be used to explain internally inconsistent deposition testimony, see Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980); however, as the Court said in the Perma Research case, “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Although Dr. Mills’s deposition testimony was not a model of clarity, he stated definitely that he did not know what had caused the Capleners’ ostriches to die and did not plan to testify on the subject. In his later affidavit he said the birds died because there was something wrong with their feed which caused it to impact. The contradiction is direct, and we hold it was not error for the Trial Court to disregard Dr. Mills’s second affidavit.
In addition to Dr. Mills’s affidavits, the Capleners presented other evidence in their motion for reconsideration that Bluebonnet and its distributors had received other complaints about feed having mold, being in “clumps,” and being discolored. Even if that evidence were to be appropriate for consideration at the late date it was presented, it was insufficient to raise an issue of fact whether the feed eaten by the Capleners’ ostriches cause their deaths.
2. The evidence standard
The Capleners also argue the Trial Court used the wrong standard in determining whether to grant the motion for summary judgment. The contention is based on the Trial Court’s letter ruling in which he wrote, “There is no substantial evidence why [the ostriches] died. There is no substantial evidence the feed was defective or that it caused the deaths.” In responding to the Capleners’ motion for reconsideration, the Trial Court did not use the term “substantial evidence,” but it did appear in the order granting summary judgment.
Generally, a trial court looks for substantial evidence when determining whether to grant a motion for a directed ver diet. See Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995); See also Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). We have, however, said that if the defendant conclusively shows that some fact essential to the plaintiff’s cause of action is wanting and the plaintiff is unable to offer substantial evidence to the contrary, a summary judgment is proper. See Tillotson v. Farmers Ins. Co., 276 Ark. 450,637 S.W.2d 541 (1982); Lee v. Doe, 274 Ark. 457, 626 S.W.2d 353 (1981); Akridge v. Park Bowling Ctr., Inc., 240 Ark. 538, 401 S.W.2d 204 (1966). Our use of the term “substantial evidence” in opinions describing the evidence which must be produced in response to a motion for summary judgment was ill advised. Substantial evidence is that which is sufficient to compel a conclusion one way or the other and which induces the fact finder to go beyond mere suspicion or conjecture. Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995); Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993).
As discussed above, the standard to be applied in summary judgment cases is whether there is evidence sufficient to raise a fact issue rather than evidence sufficient to compel a conclusion on the part of the fact finder. Although it was wrong for the Trial Court to have used the term “substantial evidence,” some of our prior cases notwithstanding, the error was not prejudicial. As noted in the first segment of this opinion, the Capleners were unable to present evidence to show that a defect in the ostrich feed supplied by the defendants was the cause of the birds’ deaths; thus no genuine issue of material fact remained to be decided. We do not presume that prejudice has resulted from a trial court’s error, and we will not reverse for error unless prejudice is demonstrated. People’s Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). See also Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994); Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993); Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992).
3. Attorney’s fees
Bluebonnet and English argue that the Trial Court should have awarded attorney’s fees based on Ark. Code Ann. § 16-22-308 and pursuant to Ark. R. Civ. P. 11. The statute provides:
In any civil action to recover on an open account, state ment of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
The award of attorney’s fees is discretionary under the statute. Little Rock Wastewater Util. v. Larry Moyer Trucking, 321 Ark. 303, 902 S.W.2d 760 (1995). Neither party cites authority or presents argument indicating that the Trial Court abused his discretion. Absent such authority or argument, we find no abuse of discretion in denying attorney’s fees pursuant to the statute.
Rule 11 requires an attorney to make a reasonable inquiry into the law prior to signing a pleading, motion, or other paper. The rule states, in part, “If a pleading, motion or other paper is signed in violation of this rule, the court... shall impose upon the person who signed it... an appropriate sanction, which may include an order to pay . . . the amount of the reasonable expenses incurred.” Ark. R. Civ. R 11; Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994). The Trial Court has discretion in determining whether a violation occurred. Whetstone v. Chadduck, supra; See also Bratton v. Gunn, 300 Ark. 140, 111 S.W.2d 219 (1989). Only if this discretion is abused will we reverse. Whetstone v. Chadduck, supra; Ward v. Dapper Dan Cleaners and Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). The Trial Court did not find a violation of Rule 11, and there is simply no evidence that the determination was an abuse of discretion.
English makes the separate contention that it was entitled to attorney’s fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1994) which provides for award of an attorney’s fee when a claim is brought absent a justiciable issue. The statute describes a claim lacking a justiciable issue as one commenced “in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party’s attorney knew, or should have known, that the . . . claim . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument of an extension, modification, or reversal of existing law.”
Had discovery shown the feed which impacted the ostriches’ stomachs to have been defective, perhaps by a greater presence of aflatoxin, an issue might have arisen as to how it appeared in the feed, and that could have raised questions about its handling and storage by English. There has been no showing of bad faith or harassment or that the claim was without “any reasonable basis.”
4. Indemnity
English submits that it is entitled to indemnification under Ark. Code Ann. § 16-116-107 (1987). The statute provides that “a supplier of a defective product who was not the manufacturer shall have a cause of action for indemnity from the manufacturer of a defective product arising from the supplying of the defective product.” [Emphasis added.]
When the language of a statute is plain and unambiguous, we give the language its plain and ordinary meaning. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993); City of Fort Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1992). In this instance, the defective product claim has failed.
Affirmed.
Glaze and Brown, JJ., dissent. | [
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Robert H. Dudley, Justice.
Kurt Butcher was admitted to the Bar of Arkansas in 1974. Ten years later, in August 1985, because of complaints of former clients filed against him with the Committee on Professional Conduct, he asked us to accept the surrender of his license. We accepted the surrender of his license by per curiam order on September 30, 1985. Nine years later, in January 1994, he petitioned the Board of Law Examiners for reinstatement to the Bar. The Board conducted a hearing to determine whether petitioner was “of good moral character and mentally and emotionally stable.” See Rules Governing Admission to the Bar XIII. The Board, by a six-to-five vote, recommended to this court that it reinstate petitioner. We deny the petition for reinstatement.
I.
At the time petitioner surrendered his license he admitted in a verified pleading to this court:
1. That he had represented Donald and Lela Faye DeShields and told them he was waiting for a trial date. In truth, their case had been dismissed.
2. That Franklin G. and Geraldine Roth employed him to dissolve a corporation. He accepted service of process for a suit filed against his clients and did not tell them they had been sued.
3. That Aaron Don Gaylor employed him in two separate legal matters and paid fees for both. Petitioner apparently did nothing.
4. That Joseph C. Fisher employed him in a contested case. He failed to notify Fisher that he was to give a deposition. The trial court imposed sanctions against Fisher, and it was necessary for Fisher to employ other counsel.
5. That Clarence A. and Betty I. Leis employed him for some corporate law work, but he did not timely complete the work. The Leises alleged that consequently they were forced to file a Chapter 11 petition in bankruptcy court. Petitioner’s actions were such that the bankruptcy court entered a $10,000 nondischargable judgment against petitioner.
6. That five counts of felony theft of property by deception were filed against petitioner by former clients in the Circuit Court of Yell County.
7. That two counts of felony theft by deception were filed against petitioner in the Circuit Court of Washington County.
In addition to the foregoing violations of the Rules of Professional Conduct, a civil judgment in the amount of $5,000 was outstanding against appellant. However, that judgment, unlike the nondischargable bankruptcy judgment, implies no breach of responsibility to a client.
The two counts of felony theft by deception filed against petitioner in Washington County were subsequently dismissed upon a request by the prosecuting attorney. The prosecutor’s request was based on the opinion of Dr. Roy Ragsdill of the Arkansas State Hospital that petitioner lacked capacity to appreciate the criminality of his conduct.
Petitioner pleaded nolo contendere to the five counts of felony theft in Yell County and was given a suspended imposition of sentence and one year’s probation.
Both civil judgments against petitioner remain unsatisfied. Upon learning that petitioner had applied for reinstatement, Clarence Leis, one of petitioner’s former clients, wrote the Board, in part, as follows:
What makes me think that he has not learned his lesson or is sorry for what he has done is that he has asked someone else to call me to drop charges on him. If he had any compassion or was sorry, he would have called me or other members of my family and talked to us about it himself.
II.
As early as 1977, petitioner was diagnosed as having a bipolar disorder, formerly known as a manic-depressive disorder, and essential hypertension. He took lithium and thorazine to control the disorder, but in 1983, upon advice of a physician who was not his treating physician, he discontinued the medication. He lapsed into a manic depressive psychosis by early 1984. Petitioner testified to the Board that he has been generally stable since 1985, and that he has strictly followed the treatment prescribed by his treating physiatrist. He states that he now has a full awareness of his affliction and its possible effect upon potential clients should he be allowed to return to the practice of law.
Dr. Edwin C. Jones, petitioner’s treating physiatrist, states that petitioner is presently competent to practice law from the perspective of treatment of the bipolar disease. Petitioner states that he desires to remain free of the adverse effects of his disorder and that he will follow the prescribed plan of medication. He has submitted a substantial number of letters supporting his reinstatement. The letters are from judges, business people, and friends.
III.
The separation of powers provisions of the Constitution of the State of Arkansas inherently places the responsibility of regulating the practice of law in this court. Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108, 155 S.W.2d 697, 701 (1941). In addition, Amendment 28 expressly places the responsibility in this court. Ark. Const, amend. 28.
The standards governing readmission are settled. A practice of law is a privilege and not a right. In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). The lawyer who has lost his or her license has the burden of proof at the readmission hearing. Rules Governing Admission to the Bar XIII. Once a lawyer has lost his license to practice law, either through surrender or disbarment, there is a presumption against readmission. In re Admission of Anderson, 312 Ark. 447, 851 S.W.2d 408 (1993). The protection of the public and the honor and integrity of the legal profession are the “overriding” considerations in readmission cases. Rehabilitation of the disbarred lawyer is given only “due” consideration. Hurst, 202 Ark. at 1109, 155 S.W.2d at 701. A position of trust, and sometimes an actual fiduciary relationship, exists in an attorney-client relationship. For our legal system to function properly, a client must be able to have trust in his or her counsel, and it is the responsibility of this court to see that the public can have that trust. Anderson, 312 Ark. at 453, 851 S.W.2d at 411.
Petitioner has made good progress in the rehabilitation of his disorder, and we commend him in those efforts. His medical testimony shows that, from the perspective of his bipolar disorder, he is now competent to practice law. However, there was no direct proof that a bipolar disorder causes one- to act in deceptive or dishonest manner. The proof showed that petitioner’s mental stability is restored while he is on medication, but there was no proof that he is morally fit to practice law. Petitioner’s proof before the Board fell short of overcoming the presumption against readmission.
Even if petitioner’s proof can be said to constitute some proof of restored moral fitness, it would be given only due consideration. The public trust and integrity of the Bar would be given overriding consideration, and we are not convinced that the public trust would be satisfied by the readmission of petitioner.
Finally, for the guidance of the Board and the Bar we note that even if petitioner had overcome the presumption against readmission and had made a strong showing of moral rehabilitation, it would not mean that he was competent to prac tice law, or that we would necessarily approve immediate reinstatement. The Board can recommend conditions upon which an attorney might be reinstated. Rules Governing Admission to the Bar XIII. The Board might make a recommendation such as reinstatement upon receiving favorable continuing medical reports, or some other appropriate condition. However, when a former attorney has been out of the law practice for a considerable amount of time, ten years in this case, it is not likely that we would order immediate reinstatement to the Bar. Rather, it is more likely that he or she would only be deemed morally fit to take the bar examination once again and, if he or she passed the exam, then the license could be reinstated.
Petition denied. | [
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Andree Layton Roaf, Justice.
Appellant Ollis X. Heard was convicted of delivery of a controlled substance, two rocks of crack cocaine, and sentenced as an habitual offender to seventy years imprisonment. On appeal he argues that the trial court erred in 1) denying his motion for directed verdict based on insufficiency of the evidence, 2) ruling that his Batson motion based on the state’s peremptory challenge of one black juror was untimely, 3) failing to require the state to provide racially neutral reasons for the peremptory challenge of the black juror, and 4) failing to grant a mistrial when the state improperly introduced evidence of a prior extraneous offense. We affirm the conviction.
Officer Willie Pegues of the Hot Springs Police Department testified that while he was working with the Texarkana Police Department as an undercover agent on the evening December 6, 1990, he observed Ollis Heard and Michael Chappell leaving a Texarkana club. Pegues testified that when he called Heard over to his car and asked him about some “rocks,” Heard pointed to Chappell and stated “that was his man.” Chappell approached Heard and stated “he needed some more.” Chappell and Heard walked towards a van, and Pegues observed Heard “take something out of his pocket and give it to Chappell.” Chappell returned to Pegues’ vehicle with five rocks in his hand. Officer Pegues testified that, after he witnessed Heard hand something to Chappell, Chappell walked to Pegues’ vehicle without putting his hand in his pocket. Pegues selected two rocks and paid Chappell $40.00. Chappell then walked back to Heard, and Pegues observed Chappell hand Heard “something green,” which he determined to be money. The two rocks purchased by Pegues were analyzed and found to contain cocaine base.
Appellant first argues that the trial court erred in denying his motion for directed verdict based on insufficient evidence. At the conclusion of the state’s case, appellant moved for a directed verdict on the basis that there had been no evidence that he either transported or delivered a controlled substance to another party or that he had received any money or anything of value in exchange for such a delivery. The trial court denied the motion. Appellant presented the testimony of Chappell, who denied that he had sold drugs for appellant. Appellant renewed his motion for directed verdict; the trial court again denied the motion. The state then moved to introduce several exhibits from Chappell’s case file through an employee of the prosecutor’s office, stating:
Judge, probably not even in rebuttal, but I guess since the Defendant has rested, the State would offer in rebuttal the exhibits that we talked to you about that we want to do for a limited purpose and I think I will probably call Wanda Winchester up to testify for the State outside the presence of the jury.
(Emphasis added.) Appellant objected to the introduction of the exhibits and to the testimony of the witness on several grounds, including the failure of the state to provide the exhibits and the identity of the witness during discovery. The state responded, “Rebuttal evidence . . . not required to expose that during discovery.” (Emphasis added.) The trial court overruled the appellant’s objection, and the state called its witness, who then testified and was cross-examined by appellant’s counsel concerning the state’s exhibits. Appellant objected to the introduction of the exhibits; the trial court admitted one exhibit and sustained appellant’s objection to the four remaining exhibits. The appellant did not make any further motion for directed verdict after the close of the state’s rebuttal.
As Heard failed to renew his motion for directed verdict after the rebuttal testimony presented by the state, he is precluded from challenging the sufficiency of the evidence on appeal. See Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). The failure of a defendant to move for a directed verdict at the close of the case waives any question pertaining to the sufficiency of the evidence. Id.; Ark. R. Crim. P. 36.21(b). We have concluded that the plain language of the rule requires a renewal after rebuttal evidence is presented, and we interpret the rule strictly. Christian, supra.
Appellant contends the state did not present “rebuttal” evidence because the state had either forgotten to introduce the exhibit during Chappell’s testimony or wanted to introduce it out of the hearing of the jury. Appellant further argued the exhibit admitted had “little, if any, relevance to the issue of whether there was sufficient evidence to convict Appellant of the offense of delivery of a controlled substance.” Clearly, the exhibit was evidence and it was admitted after Heard had rested his case. Thus, appellant did not renew his motion for directed verdict “at the close of the case,” and we do not reach the merits of his argument.
Appellant next argues the trial court erred in ruling that his Batson challenge was untimely and in failing to require the prosecutor to provide racially neutral reasons for the exercise of a peremptory challenge against a black juror. There were two blacks on the jury panel. The prosecution used its only peremptory challenge to strike one and the other was seated as a juror. At the conclusion of voir dire, but prior to the jury being sworn, appellant’s counsel requested that the record reflect that Heard is a black male and the state exercised a peremptory challenge against a black female. He requested that the state provide a racially neutral reason as to why a peremptory challenge was exercised against the black juror. The trial judge denied the motion as untimely and further stated he was “convinced that the state did not systematically exclude blacks as the very next juror was of the black race and was accepted by the state as a member of this jury.”
In Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991), we discussed objections made pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and stated that “[s]o long as the objection is made before the jury is sworn, we regard it as timely.” As Heard objected prior to the jury being sworn, his Batson challenge was timely.
In Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995), we recently set out the procedures which are to be followed when a Batson objection is raised:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a facially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
(Quoting Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).) We have stated a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.
Although the trial judge incorrectly concluded Heard’s motion was untimely, he went on to state that he was “convinced that the state did not systematically exclude blacks as the very next juror was of the black race and was accepted by the state as a member of this jury.” In Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), we concluded that the presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant. Further, we have commented that the best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members. Gilland v. State, supra; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).
Here, the state’s sole peremptory challenge was exercised to excuse a black juror; however, the very next juror was also a black woman and was accepted by the state. Furthermore, when this juror was seated, the state still had peremptory challenges remaining. See Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).
We hold the appellant failed to make a prima facie case that racial discrimination was the basis of the juror challenge. Granted, the prosecution’s use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). However, the one peremptory strike of a black prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient. See Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995); sec also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). Accordingly, the trial court’s finding that there was no systematic exclusion is not clearly against the preponderance of the evidence.
Appellant finally argues the trial court erred in failing to grant a mistrial when the prosecutor improperly introduced evidence of a prior extraneous offense. Michael Chappell testified on behalf of the appellant and denied that he had ever sold or delivered cocaine for appellant. During the state’s cross-examination of Chappell, the prosecutor asked, “Were y’all at the same penitentiary together?” Counsel for appellant objected and moved for a mistrial; Chappell did not answer the question. The state asserted it was simply asking how Chappell knew the defendant in order to establish that they had planned Chappell’s testimony. The trial court denied the defendant’s motion for mistrial and ordered the state to make no further reference to the witness knowing the defendant in the penitentiary.
On appeal, appellant asserts the state made a purposeful attempt to interject in the case that he was currently incarcerated on other convictions, the trial court did not admonish the jury, and the statement was “highly prejudicial.” In reviewing the denial of motion for mistrial, among the factors we consider are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).
Any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Declaring a mistrial, however, is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected: the trial court has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). The trial court is in a better position to determine the effect of the remark on the jury and here the court concluded the reference was insufficient to warrant a mistrial. See Cupples v. State, supra.
Further, 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. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). We have concluded that an admonition is sufficient to cure a reference a witness made to a defendant’s “previous record.” Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). Similarly, in the instant case, an admonition would have been sufficient to cure the error. The appellant failed to request this relief; however, it was clearly his obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993).
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Andree Layton Roaf, Justice.
This case involves a question concerning the law of torts. Appellant, Affiliated Foods Southwest, Inc., is an Arkansas cooperative that sells groceries to its member shareholders at wholesale. Appellees Fletcher B. Moran and Thomas K. Moran operated a member grocery store in Mena, Moran’s Foodland, Inc. (Moran’s), which obtained groceries from appellant on open account. This case arose from an action filed by appellant against appellees as guarantors of a promissory note owed by Moran’s, after the grocery store had been placed in bankruptcy and sold. The appellees responded that appellant had acted in bad faith and filed a counterclaim for the amount appellant sought in its complaint against them. In a non-jury trial, the circuit judge found that appellees owed the unpaid balance due on the promissory note but also granted the appellees’ counterclaim in an equal amount to offset appellant’s award.
The appellant appeals from this judgment asserting the trial court erred in granting the counterclaim and in basing its opinion on a finding of bad faith on the part of appellant. We agree that the trial court erred and reverse.
a. Facts
Moran’s became a member of the appellant cooperative in 1986, and at that time established an open account for the purchase of inventory from appellant. Appellant filed a Uniform Commercial Code (UCC) financing statement in 1986, taking a security interest in Moran’s inventory of groceries and other merchandise, and in proceeds from sale of the collateral. By 1990, the open account had grown to $124,000, which was of concern to appellant. The $124,000 debt was set up as a promissory note with weekly payments of $627.00; appellees were required to personally guarantee this note. Moran’s was allowed to continue purchasing groceries on open account; appellees were not at any time required to guarantee the open account. In 1992, appellant refiled its financing statement taking a security interest in Moran’s equipment in addition to the inventory and cash collateral.
Moran’s continued to experience financial difficulties, and by the fall of 1992, although the balance due on the promissory note had been reduced to approximately $67,000, the open account had grown to $132,000. The appellees attempted to sell the store in October 1993 to two employees of a rival Mena grocery store, which was also a member/customer of appellant. This attempt was unsuccessful when, according to the testimony of appellees and the prospective purchaser, appellant reneged on the agreement to finance the purchase a few days before it was to be consummated and the purchasers were unable to obtain financing elsewhere.
Appellees contacted appellant on December 8, 1993, and advised that they could no longer continue to operate the store and requested that appellant pick up the inventory. According to the testimony of appellees, the inventory at that time was sufficient to pay off the indebtedness; however, employees of appellant ordered them to continue operation of the store and stated that appellant would assist in finding a purchaser. Appellees closed the grocery store about three weeks later after an inventory reduction sale, and Moran’s was placed in bankruptcy on January 4, 1994. The bankruptcy trustee later abandoned interest in the inventory and equipment of Moran’s to appellant. It was sold for $48,000, and all of the proceeds applied toward the unguaranteed open account.
In response to the complaint filed by appellant to collect the $64,000 balance due on the guaranteed promissory note, appellees acknowledged liability on the note but raised a number of defenses, including bad faith. Appellees also filed a counterclaim, in which they alleged that appellant became a partner in the business, or became an agent of appellees, by refusing to take merchandise (inventory) when offered and by directing appellees to continue operation of the grocery store, and that appellant caused the loss it complained of by accepting, then withdrawing, an offer by a third party to purchase the inventory.
After hearing the testimony, the trial court found that there was evidence that appellant acted in bad faith, stating:
But, it’s here for me to believe or not that Affiliated willfully and in bad faith, failed to go through with the financing for [the purchaser]. Now, they don’t have any obligation to do it, but once they start, then - and if they’re acting in bad faith which I think there’s some evidence of, I think it’s clear that — to me anyway, that they didn’t go through with it because they didn’t want to incur the wrath of another customer. I think that gives the Morans a defense.
Now, the Morans got themselves into a situation and I don’t know whose fault it was, I don’t think they were made to borrow the money at gun point by Affiliated, but having gotten into that situation, I believe Affiliated was — had some obligation to help them out and didn’t do so.
b. Tort of Bad Faith
On appeal Affiliated argues, and appellees concede, that we have limited the tort of bad faith to insurance cases. American Health Care Providers, Inc. v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994); Quinn Cos. v. Herring Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989); Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983). We have said that “a claim based on the tort of bad faith must include affirmative misconduct by the insurance company, without a good faith defense, and that the misconduct must be dishonest, malicious, or oppressive . . .” and cannot be based on negligence or bad judgment but upon actual malice, “that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge.” Aetna Casualty & Surety Co., supra. Nevertheless, appellees suggest that the relationship of the parties is one of a wholesale vendor selling goods to a retail vendor and that the appellant also assumed the role of a “lender,” consequently the UCC requirement of “good faith” dealings provides a basis for affirming the trial court in this instance. Arkansas Code Annotated § 4-1-203 (Repl. 1991) provides: “Every contract or duty within this subtitle imposes an obligation of good faith in its performance or enforcement.” Good faith is defined as “honesty in fact in the conduct or transaction concerned.” Ark. Code Ann. § 4-1-201 (Supp. 1993).
We have considered the general good faith requirement found in § 4-1-203 and its predecessor, Ark. Stat. Ann. § 85-203 on three occasions. Adams v. First State Bank, 300 Ark. 235, 778 S.W.2d 611 (1989) (bank exercised right of set-off); Sullins v. Thrift Plan, Inc., 255 Ark. 655, 501 S.W.2d 781 (1973) (repossession and sale of automobile by secured creditor); Farmers Equip. Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972) (repossession and sale of tractor by secured creditor). However, we agree with appellant that failure to exercise good faith raises the issue of breach of contract and is not present in the instant case. Here, the only contract at issue between the parties is the promissory note; appellant did not contract with Moran’s, the appellees, or the prospective purchasers of Moran’s to finance the purchase of Moran’s by the third-party purchasers. Also, it is well settled that a holder of a promissory note has no duty to accept an offer of the collateral pledged by the maker of the note in lieu of payment; appellant accordingly was under no obligation to accept the inventory from the grocery store in order to discharge the debt owed on the promissory note. See Moore v. Luxor (North American) Corp., 294 Ark. 326, 742 S.W.2d 916 (1988); Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982).
Appellees’ contention that the appellant ordered them to continue to operate the store, and in so doing, became a partner in the business is without merit. Appellant’s employee testified that he merely advised appellees to keep the store open because they were attempting to sell it and a going concern would have a higher value. Appellee Fletcher Moran testified that he considered this advice an “order” because the business inventory was used as collateral for the debt owed to appellant and he was trying to get them to come down and recover their merchandise. The burden of proving a joint venture rests on the party asserting the relationship, and it is generally understood that the relationship of borrower and lender does not establish a joint venture. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990).
Finally, appellant’s employee testified that the purpose of the promissory note was to clear the sizeable open account which was due immediately, and to give the appellees additional time to pay off the account, but that Moran’s continued to “go downhill.” He stated that although appellants had no obligation to find a buyer for Moran’s, they did try to assist them by sending several people who were interested in the store to Moran’s. He testified that “Basically we were trying to help Moran’s out to get them out of the store before they lost any more money.” In sum, appellees presented no evidence that the appellant was dishonest in its dealings with them concerning the promissory note.
We reverse and remand to the trial court for entry of judgment in favor of appellant and dismissal of the appellees’ counterclaim. | [
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Donald L. Corbin, Justice.
Appellants, Secretary of State Sharon Priest and State Treasurer Jimmie Lou Fisher, appeal the order of the Pulaski County Chancery Court declaring void Acts 1 and 2 of the First Extraordinary Session of 1995, and enjoining the December 12, 1995 special election called by Governor Jim Guy Tucker pursuant to the Acts. Appellees, Jennifer Polk and Randall L. Bynum, and Intervenor Steve Clark, as citizens, residents, taxpayers, and qualified voters of this state, have cross-appealed. Jurisdiction of this appeal is properly in this court as the constitutionality of legislative acts is challenged. Ark. Sup. Ct. R. l-2(a)(3).
PROCEDURAL HISTORY
Act 1 of the First Extraordinary Session of 1995 established procedures for calling a constitutional convention subject to ratification by the people of the State of Arkansas, for drafting a new constitution, and for submitting a proposed new constitution to the voters. Act 2 of the First Extraordinary Session of 1995 appropriated $1,100,000.00 from the State Central Services Fund to finance the convention and pay expenses of delegates. Both acts contained emergency clauses stating they would be effective from the date of passage and approval. The acts were approved by the Governor on October 19, 1995.
Pursuant to Act 1, the Governor issued a proclamation providing a filing period from October 23, 1995, through November 2, 1995, for persons desiring to be elected delegates to the convention. The Governor’s proclamation also set December 12, 1995, as the date for the statewide special election for ratification of the call of the convention and election of thirty-five convention delegates from existing state Senate districts. Also pursuant to Act 1, the President Pro Tempore of the Arkansas Senate and the Speaker of the Arkansas House of Representatives nominated ten senators and sixteen representatives as delegates to the convention. According to the proposed ballot form in Section 4 of Act 1, the names of these twenty-six appointed delegates would appear on the ballot form for the voters to approve as a block of delegates along with the call of the convention.
Appellees filed a complaint in chancery court on October 24, 1995, seeking a declaration that Acts 1 and 2 were encroachments on the rights of the people in a manner prohibited by Article 2, §§ 1 and 29 of the Arkansas Constitution of 1874 (“the Arkansas Constitution”), challenging the emergency clauses of Acts 1 and 2, and challenging the ballot form proposed in section 4. The complaint alleged that, due to the foregoing violations, any public funds expended on the election or convention would result in an illegal exaction pursuant to Article 16, § 13 of the Arkansas Constitution. The complaint also sought injunctions to restrain appellant Priest from certifying the ballot title or the name of any delegate on the December 12, 1995 special election ballot, to restrain appellant Priest from certifying the results of the December 12, 1995 special election if it is held, and to restrain the expenditure of public funds for the special election on December 12, 1995, for the convention, and for the publication of any document proposed by the convention.
On November 13, 1995, the chancellor granted the motion to intervene of Intervenor Clark. Intervenor Clark’s motion sought intervention as a taxpayer and voter for the purpose of addressing an additional argument with respect to the constitutionality of the challenged legislation. Specifically, Intervenor Clark contends Act l’s procedure for selecting the twenty-six appointed delegates to the proposed convention violates the one-person, one-vote principle.
On November 16, 1995, the chancellor granted the motion to intervene of Intervenor Marilyn M. Zornik, as natural guardian and next friend of Anna Margaret Zornik, a minor. Anna Margaret Zornik is diagnosed with Down’s syndrome and receives health care services under this state’s federally-funded Medicaid program. Intervenor Zornik sought intervention for the purpose of developing the record as regards the effect of the chancellor’s order upon her ability to protect her daughter’s entitlement to continued Medicaid services, in light of the recent judicial invalidation of Amendment 68 to the Arkansas Constitution on supremacy clause grounds. Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d, 60 F.3d 497 (8th Cir. 1995). Specifically, Intervenor Zornik contends the December 12 election should proceed.
On November 13, 1995, appellant Priest certified the ballot for the special election of December 12, 1995.
The parties and chancellor agreed to an expedited proceeding in the chancery court. They submitted the case to the chancellor on stipulated facts. The parties also stipulated that subject-matter jurisdiction existed in the chancery court. The chancellor held a hearing on November 14, 1995, and, in a ruling from the bench, found merit only in appellees’ allegation that the emergency clause was invalid for failure to state facts constituting an emergency. The chancellor found that, due to time limitations expressed in Act 1, the invalid emergency clause rendered the entire act void. The chancellor therefore determined an illegal exaction would result if funds were expended for the election on December 12, 1995, and enjoined the election by written order entered on November 17, 1995. This appeal and cross-appeal are from that order.
We granted the parties’ motions to expedite this appeal, and we allowed Vincent C. Henderson, II, a candidate for delegate to the proposed convention, to file a brief as amicus curiae in support of appellants. By per curiam order filed on November 28, 1995, we granted appellants’ motion to stay enforcement of the chancellor’s order pending this appeal.
SUBJECT-MATTER JURISDICTION
The parties stipulated that chancery court had subject-matter jurisdiction of this case pursuant to Article 7 of the Arkansas Constitution and Ark. Code Ann. § 16-13-304 (Repl. 1994). It is well-settled that subject-matter jurisdiction cannot be waived and cannot be invoked by consent of the parties. Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). A court has a duty to determine if it has subject-matter jurisdiction of the case before it. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994). When the trial court lacked subject-matter jurisdiction, the appellate court also lacks jurisdiction. First Pyramid Life Ins. Co. v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970). Accordingly, the question of subject-matter jurisdiction is one that this court is obligated to raise on its own. Id.
Our review of the case law on this issue leads us to conclude that the question of subject-matter jurisdiction is determined by the characterization of the case. When a case is characterized as one involving political rights, this court has held that jurisdiction lies exclusively in circuit court. Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967); see Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230 (1913) (quoting In re Sawyer, 124 U.S. 200 on the distinction between political rights, defined as those which involve the power to participate directly and indirectly in the establishment or management of government, and civil rights, defined as those which consist in the power to acquire and enjoy property). However, when a case is characterized as an illegal-exaction case, we have held that jurisdiction lies concurrently in chancery and circuit courts because the constitution does not assign jurisdiction of illegal-exaction
cases. Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995). While the concurrence characterizes this case as one involving political rights solely cognizable in circuit court, such a view overlooks other allegations in the complaint, such as the challenge to the emergency clause and the challenge to the ballot title or ballot form. We have addressed challenges to emergency clauses, ballot titles, and ballot forms that were brought in chancery court. McCuen v. Harris, 321 Ark. 458. 902 S.W.2d 793 (1995) (addressing ballot-title challenge); Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995) (addressing emergency-clause challenge); Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980) (addressing challenge to ballot form for submission of proposed constitution of 1980).
It is well-settled that when a court of equity acquires jurisdiction for one purpose, it retains jurisdiction for all purposes, provided the original object of the suit is clearly within equity’s jurisdiction and there is no adequate remedy at law. Dugan v. Cureton, 1 Ark. 31 (1837). This is an expression of equity’s “clean-up” doctrine. However, this court has held that when a suit includes a request for an injunction to prevent an illegal exaction, the adequacy of the legal remedy is immaterial because Article 16, § 13 of the Arkansas Constitution itself confers the right to an injunction with respect to an illegal exaction. Townes v. McCollum, 221 Ark. 920, 256 S.W.2d 716 (1953). On that basis, this court held in Townes that equity jurisdiction existed to enjoin officers of the executive branch from expending public funds to hold an unauthorized election. Id.
Catlett was a suit to enjoin an election, but did not allege an illegal exaction. Moreover, Catlett only involved rights pertaining to political parties and their compliance with allegedly unconstitutional election laws and did not include any other type of issue, such as an emergency-clause or ballot-title issue. Similar to Catlett, Townes was a suit to enjoin an election. However, unlike Catlett, Townes also involved a claim that the election would result in an illegal exaction. Thus, the present case is factually more similar to Townes than Catlett.
The present case has multiple aspects and therefore cannot be characterized solely as an election-contest case or one involving only political rights. It is also an illegal-exaction case, an emergency-clause case, and a ballot-title case, each of which could properly be brought in chancery court. Therefore, we conclude, chancery court had subject-matter jurisdiction of this case.
DIRECT APPEAL
EMERGENCY CLAUSE — AMENDMENT 7
Appellants contend the chancellor erred in holding the emergency clauses in Acts 1 and 2 were invalid. The emergency clause of Act 1 states in its entirety:
SECTION 18. EMERGENCY. It is hereby found and determined by the General Assembly that there is an immediate and urgent need for constitutional revision in Arkansas. Since many parts of the Constitution of Arkansas are archaic, obsolete, and unrelated to the needs and demands of the citizens for good government in both the state and local governments; and since the number and types of changes needed are not suitable for piecemeal amendment of the present Constitution; an emergency is hereby declared to exist, and this Act is declared to be necessary for the immediate preservation of the public peace, health and safety and shall be in full force and effect from and after its passage and approval.
An emergency clause has a significant effect on the people’s reserved right of referendum and is therefore expressly controlled by Amendment 7 to the Arkansas Constitution. Burroughs, 319 Ark. 530, 893 S.W.2d 319. Amendment 7 establishes the right of referendum by stating that the legislative power of the people is vested in the General Assembly, but the people reserve the power “to approve or reject at the polls any entire act or any item of an appropriation bill.” Ark. Const, amend. 7. By operation of Amendment 7, the people have until ninety days after adjournment of the legislative session to file a referendum petition. Any measure referred to the people by referendum petition remains in abeyance until voted upon. Id. The General Assembly is authorized to make an act effective immediately “[i]f it shall be necessary for the preservation of the public peace, health and safety” by enacting an emergency clause. Id. However, it is necessary that the General Assembly “state the fact which con stitutes such emergency.” Id. These requirements of Amendment 7 were observed by this court in Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939).
Most recently we have held that:
[I]t is a matter of legislative determination whether an emergency exists that requires the enactment of an emergency clause, but pursuant to Amendment 7, it is a judicial determination whether facts constituting an emergency are stated.... [A]n emergency clause which does not state a fact that constitutes an emergency is invalid... . [T]here must be some statement of fact to show that a “real emergency existed.”
Burroughs, 319 Ark. 530, 533, 893 S.W.2d 319, 320-21 (quoting Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937) (citations omitted)). The test for determining if a real emergency has been stated is whether reasonable minds might disagree as to whether the enunciated facts state an emergency. Id. If so, the emergency clause is upheld; if not, then the emergency clause is invalid. Id. Emergency is defined as “some sudden or unexpected happening that creates a need for action.” Id. at 535, 893 S.W.2d at 321.
The chancellor applied the aforementioned test and concluded the emergency clause in Act 1 did not state facts demonstrating a real emergency and therefore was invalid. The chancellor ruled further that the emergency clause could not be severed from Act 1 while still giving full effect to its other provisions and therefore declared Act 1 void. The chancellor ruled that she need not reach the emergency clause in Act 2 because Act 2 must “suffer the same fate and is thus void.”
Appellants contend the emergency clause of Act 1 enunciates two statements of fact. First, appellants rely on the statement that “many parts of the Constitution of Arkansas are archaic, obsolete, and unrelated to the needs and demands of the citizens for good government in both the state and local governments.” Second, appellants rely on the statement that “there is an immediate and urgent need for constitutional revision in Arkansas.... since the number and types of changes needed are not suitable for piecemeal amendment of the present Constitution.” The chan cellor concluded these two statements did not state an emergency because they did not describe a sudden or unexpected happening creating a need for action.
The emergency clause at issue in this case is very similar to the one upheld in Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957), where the General Assembly passed an act to establish a new form of city government for all cities of the first and second class. The emergency clause at issue in Burroughs, relied upon by the chancellor, stated that a new procedure was needed for calling special meetings of the West Memphis City Council and was held invalid. Our decision today is a catalyst to understanding and reconciling the Burroughs and Mann cases, two cases that when read separately appear to be inconsistent, but are not upon further examination. The scope of the proposed governmental reform is what distinguishes those two cases, and aligns the instant case with Mann rather than with Burroughs. Mann and the instant case both call for an entirely new form of government, while Burroughs only called for a modification of the existing government proposed by outgoing members of the governing body for obvious political reasons.
Everyone may not agree that the need for a new constitution, as described in the emergency clause of Act 1, is a real emergency. However, that is not the test. The test is whether reasonable people might disagree as to whether an emergency is stated. Burroughs, 319 Ark. 530, 893 S.W.2d 319. In reviewing our recent case of Burroughs, we realize that it did not fully explore the methodology that this court has historically used to analyze emergency clauses, although it did apply the historical analysis in invalidating the emergency clause due to the obvious political motivation of the outgoing councilmen. In Jumper v. McCollum, 179 Ark. 837, 840, 18 S.W.2d 359, 361 (1929), this court stated that “[i]f the fact which constitutes the emergency is recited, and if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding.” (Emphasis added.) Thus, it is evident that this court’s more recent cases on emergency clauses have failed to mention that we examine them to determine whether reasonable minds might differ as to the truth of the factual data alleged by the legislative body. Therefore, the instant case pre sents us with an opportunity to reconcile Burroughs, Mann, and Jumper within the scope of the proposed reforms.
The fact that our current constitution is archaic and obsolete and cannot be updated without sweeping reform states an emergency. In so ruling, we observe that the General Assembly does not operate in a vacuum and that recent litigation in this court and federal courts has called wide-spread attention to at least four far-reaching problem areas in our state government caused by our existing constitution. E.g., Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693,_S.W.2d_(1996) (public-school funding); Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d 60 F.3d 497 (8th Cir. 1995) (Medicaid funding); Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995) (county sales tax); Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993) (equipment purchases by local government). In addition, there is at least a fifth problem area in our state government caused by our constitution’s provisions for challenging initiated and referred measures and proposed constitutional amendments that was illustrated by the rash of expedited litigation in this court prior to the November 1994 general election. E.g., McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994) (per curiam) (sales tax); Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994) (per curiam) (succession and vacancies in office); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994) (softdrink tax); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994) (casino gambling); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (worker’s compensation); Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994) (charitable bingo and raffles); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (state lottery). With these reported cases in mind, and the statements of fact in Act l’s emergency clause, the legislature was clearly attempting to cure at least five deficiencies in our state government, while at the same time being expressly limited to referring only three constitutional amendments to the people. Ark. Const, art. 19, § 22. Therefore, we find truth to the statement in the emergency clause that piecemeal amendment to the constitution is not suitable.
Thus, we conclude, as this court concluded in Mann, that reasonable people might disagree that the facts stated in Act l’s emergency clause concerning the need for a new constitution did state an emergency. The chancellor’s ruling to the contrary is therefore reversed, as is her ancillary ruling enjoining the election as an illegal exaction.
The amicus curiae raises an argument that Amendment 7 does not apply to this case at all because Act 1 was not an exercise of the legislative power; rather it was an exercise of the people’s powers under Article 2, §§ 1 and 29 of the Arkansas Constitution. We do not consider this argument because the amicus curiae cannot enlarge the issues beyond those raised by the pleadings of the parties in the lower court. City of Little Rock v. AT&T Communications of the Southwest, Inc., 316 Ark. 94, 870 S.W.2d 217 (1994); Moorman v. Pulaski Co. Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981).
CROSS-APPEAL
THE PEOPLE’S INHERENT POWER TO ABOLISH AND REFORM GOVERNMENT PURSUANT TO ARTICLE 2, §§ 1 & 29 AND
ARK. CODE ANN. §§ 7-9-301 TO -312 (REPL. 1993)
Appellees, as cross-appellants, challenge the chancellor’s ruling that, excluding the emergency clause, Act 1 is not an unlawful encroachment on the peoples’ rights in Article 2, §§ 1 and 29 of the Arkansas Constitution.
Article 2, sections 1 and 29 provide as follows:
1. Source of power.
All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.
29. Enumeration of rights of people not exclusive of other rights — Protection against encroachment.
This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein dele gated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.
Relying on these sections of the constitution, Article 19, § 22 of the Arkansas Constitution, Amendment 7 to the Arkansas Constitution, Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975), and Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970), appellees essentially contend that the power to rewrite the constitution can only be exercised by the people, not by the legislature. The holding of Pryor was very narrow and has not been expanded to the degree argued by appellees. The holding that the proposed limitations on the constitutional convention at issue in that case were encroachments on the people’s rights in violation of Article 2, § 29, was expressly based on the lack of a provision for ratification by the people. See Pryor, 258 Ark. at 192, 523 S.W.2d at 202. In contrast, Act 1 does provide that both the call of the convention and the proposed document be ratified by the voters. Therefore Pryor does not control this case. Likewise, Harvey does not control this case. While Harvey does stand for the clear and correct proposition that it is the people’s right to reform their constitution and the people have not given that right to any branch of government, Harvey does not prohibit the legislature from calling a convention and submitting the call to the people. The chancellor’s ruling on this issue is affirmed.
In addition, appellees claim Acts 1 and 2 conflict with sections 7-9-301 to -312, which establish a procedure for calling a constitutional convention, selecting delegates, filling delegate vacancies, conducting the convention, and submitting the proposed constitution to the voters. Intervenor Clark also raises an argument that the appointment of convention delegates by the Speaker and President Pro-Tempore invade the inherent right of the people as expressed in Article 2, §§ 1 and 29. The chancellor did not rule on these issues, thus leaving them unresolved below and therefore not preserved for appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).
BALLOT TITLE / BALLOT FORM
Appellees, as cross-appellants, contend that the ballot title or ballot form of Section 4 of Act 1 is misleading because it does not include any of the terms of Act 1, such as the nomination of appointed delegates and the filing deadlines for elected delegates, among others. Appellees also contend the ballot form is misleading because it does not allow a voter to approve the calling of the convention, yet reject any or all of the twenty-six appointed delegates. The ballot form is stated in Section 4 of Act 1 and reads as follows:
(1) “For calling a Constitutional Convention to propose a new Constitution for the State of Arkansas, as provided in Act_of the Acts of the First Extraordinary session of the Eightieth (80th) General Assembly of 1995, and subject to the terms of that Act, and electing the nominated Convention delegates listed below:”
(Names of 26 nominated delegates from the General Assembly)
(2) “Against calling a Constitutional Convention.”
Relying on Riviere, 270 Ark. 206, 604 S.W.2d 560, the chancellor ruled that the people would be able to ratify the terms and restrictions of Act 1 at the December 12 special election even though the terms and restrictions are not expressly disclosed in the ballot form. The chancellor therefore concluded the ballot form was not misleading.
The form of the ballot proposed by a constitutional convention cannot be misleading. Riviere, 270 Ark. 206, 604 S.W.2d 560. Constitutional convention ballot forms must submit proposals “for approval or rejection” or “for adoption or rejection” as required by section 7-9-310, formerly Ark. Stat. Ann. § 2-112, Harvey, 248 Ark. 35, 450 S.W.2d 281, and Pryor, 258 Ark. 188, 523 S.W.2d 199. Riviere, 270 Ark. 206, 211, 604 S.W.2d 560, 562. Riviere holds that, when a vote is taken in the form of “For X” and “Against X,” any limitations associated with a convention’s proposal or any change from a general election to a special election is ratified in the vote. Id. Since the ballot form at issue here is in the for-against format, we cannot say the chancellor erred in interpreting Riviere and holding the ballot form at issue is not misleading.
As for appellees’ argument that the form is misleading because it does not allow voters to vote for the calling of the convention without also voting for all twenty-six appointed delegates, that issue was not ruled upon by the chancellor. It was appellees’ burden, as cross-appellants, to obtain a ruling on that issue. Brumley, 320 Ark. 310, 896 S.W.2d 860. Their failure to obtain the ruling left the matter unresolved, which operates as a waiver of the issue for purposes of appeal. Id.
SUBMISSION OF CALL FOR CONVENTION TO PEOPLE BY LEGISLATURE
Appellees, as cross-appellants, argue that Amendment 7 prohibits the legislature from referring to the people the calling of the convention, as provided for in Section 4 of Act 1. Appellees are absolutely correct in contending that the General Assembly is prohibited from referring to the people any “measure” except constitutional amendments as provided for in Article 19, § 22 of the Arkansas Constitution and other exceptions provided for in the constitution that are not applicable here. However, the General Assembly is not referring Act 1 to the people, and, as the chancellor ruled, Section 4 of Act 1 is not a “measure” the submission of which is prohibited by Amendment 7. Act 1 prescribes procedures for a constitutional convention to be ratified by the people. We cannot say the chancellor erred in this regard.
ONE PERSON, ONE VOTE
Intervenor Clark, as cross-appellant, challenges the chancellor’s ruling that the one-person, one-vote principle does not apply to constitutional conventions. Intervenor Clark cites no source for the one-person, one-vote principle other than Article 2, §§ 1 and 29. The chancellor observed that other jurisdictions have concluded that the principle does not apply to constitutional conventions because such conventions do not make laws but merely propose new ones to voters for approval or rejection. The chancellor also observed that the case upon which Intervenor Clark relied heavily, State of West Virginia v. Gore, 143 S.E.2d 791 (1965), was a well-reasoned case. However, because this is an issue of first impression in this state, the chancellor chose to follow the lead of other jurisdictions. See, e.g., Stander v. Kelley, 250 A.2d 474, cert. denied, 395 U.S. 827 (1969).
On appeal, Intervenor Clark again relies on Gore, 143 S.E.2d 791, and Forty-Second Legislative Assembly v. Lennon, 481 P.2d 330 (1971). Both cases are clearly distinguishable due to the differences in the West Virginia, Montana, and Arkansas Constitutions. West Virginia’s Constitution has an express provision that “[e]very citizen shall be entitled to equal representation in the government, and, in all apportionments of representation, equality of numbers of those entitled thereto, shall as far as practicable, be preserved.” W. Va. Const. art. 2, § 4. Montana’s Constitution requires that the number of delegates to a constitutional convention be the same as its state house of representatives and be elected in the same manner as state representatives. Mont. Const, art. 19, § 8. There are no analogous or similar provisions in the Arkansas Constitution. We observe that the United States Supreme Court has not held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution applies to state elections when the persons elected do not perform public functions. See Hadley v. Junior College Dist., 397 U.S. 50, 56 (1970). This court held in Riviere that a constitutional convention is not a coordinate branch of government. Riviere, 270 Ark. 206, 604 S.W.2d 560. Therefore, we conclude the one-person, one-vote principle does not apply to constitutional conventions in this state. The chancellor’s ruling is affirmed in this regard.
The order is reversed on direct appeal because the chancellor erred in enjoining the special election. The order is affirmed on cross-appeal. The case is remanded to the chancery court for entry of an order consistent with this opinion.
Chief Justice Jesson and Associate Justice Brown join in this opinion to reverse and remand on direct appeal. Associate Justice Glaze concurs, joining the decision to reverse the case on direct appeal, but contending the case should be dismissed. Associate Justices Dudley, Newbern, and Roaf dissent, voting to affirm on direct appeal. Thus, while this is a plurality opinion declaring the law in this case, there is indeed a majority decision to reverse the chancellor’s decision on direct appeal.
The mandate in this case shall issue immediately.
Glaze, J., concurs.
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Robert H. Dudley, Justice.
The State sought forfeiture of a Chevrolet van that was allegedly used to transport drugs, but was notified that there was a first lien against the van in excess of its market value. The State then sought forfeiture of some of appellees’ other assets that were not mortgaged. The trial court dismissed the action. We reverse and remand for further proceedings.
Much of our discussion of this case in our decisional conference involved the procedure below and whether the State was required to make a proffer of evidence to preserve its point of appeal. Consequently, we first discuss the procedure below in detail.
On July 1, 1994, the State gave appellees Mike and Debbie Gray notice that it had seized their Chevrolet van and the telephone and citizens’ band radio inside it, and intended to cause the van to be forfeited because it had been used to facilitate the transportation of drugs. See Ark. Code Ann. § 5-64-505 (Repl. 1993). Appellees responded by filing a notice of “Judicial Referral of Forfeiture” on the ground that the van was mortgaged to a bank and the outstanding debt was $5,058.09. Appellees attached a copy of the note and the security agreement and the certificate of title that reflected the bank’s existing lien. Appellees additionally pleaded that the van was used by appellee Debbie Gray in her business and that irreparable harm would be caused if it were not returned to her.
On August 24, 1994, the case was called for trial by the trial court, and the State moved for a continuance. The trial court granted the continuance, but ordered the van returned to appellees pending a determination of forfeiture. The trial court then set the trial for October 3, 1994, directed the parties to establish the value of the van as of August 24, rather than the date of trial, and ordered the attorneys to file pretrial briefs on the issue of any substitution of assets for the van no later than October 3, 1994.
On October 3, 1994, the State filed a petition for substitution of assets and a supporting memorandum of law. The State alleged that appellee Mike Gray used the van in selling or receiving a controlled substance; consequently, the van was subject to forfeiture under Ark. Code Ann. § 5-64-505. However, the State admitted that a valid lien existed in the amount of $5,058.09 and that a forfeiture action was subject to the first lien. The State then contended that, because the van was subject to the prior interest, it was entitled to forfeiture of any of appellees’ other property up to $4,500, the fair market value of the van, in accordance with Ark. Code Ann. § 5-64-505(o). Appellees filed a brief the same day in which they contended that the State was not entitled to substitute property in place of the van; rather, the State was entitled to forfeiture of only that property listed as subject to forfeiture in Ark. Code Ann. § 5-64-505(a)(1)—(6).
The proceeding on October 3 did not commence with the trial court asking if the parties were ready for trial. Rather, the court asked for argument only on the forfeiture issue, as follows:
The Court: Let’s do an argument on that forfeiture. Let’s see if I’m going to decide it now.
Mrs. Huff [Deputy Prosecuting Attorney]: On the brief?
The Court: Yeah. Just give me an oral argument on it. All right, this is on the forfeiture and the vehicle has been returned?
During the arguments, the State and appellees stipulated to the fact that the van was encumbered by a prior security interest and the security interest exceeded the fair market value of the van. Appellees’ counsel then stated:
And the issue then, Your Honor, becomes whether or not the state can substitute other collateral or assets of the defendant in lieu of that property sought to be forfeited if that property is encumbered to an extent to where there is no value left for the drug task force to seize.
In summary, the issue before the trial court was whether the State could substitute any other assets of appellees up to the value of the van if the State proved that the van was subject to forfeiture. If the court ruled that the State could substitute other assets, then, presumably, the State would have proceeded with its evidence. However, the court did not decide the substitution issue. From the following colloquy at the end of the hearing, it can be seen that the trial court was unwilling to address the merits of the case before it reached a decision on the substitution issue:
The Court: Well, I’m going to take this home and study on it just a bit.
Mr. Castleman [Appellees’ attorney]: Without even filing any criminal proceedings?
The Court: Yes, sir. I’m going to study on this thing because that’s, without any cases, that’s a pretty big jump.
Mrs. Huff [Deputy Prosecuting Attorney]: If we find any other law, can we supplement it?
The Court: You sure can. I’d like to see it.
Mr. Castleman: I would also, your Honor.
The Court: That’s, that’s pretty stout.
Mr. Castleman: May we be excused for the day, Your Honor?
The Court: Yes, why not?
On February 10, 1995, or over four months later, the trial court denied the State’s petition for asset substitution and dismissed the State’s case for forfeiture. The trial court found that the van was encumbered by a prior security interest which was greater than the value of the van, and reasoned that, if the applicable statute did not provide for substitution of other assets, there was no point in proceeding with evidence about either forfeiture or the substitution of assets. As a result, the trial court dismissed the action.
Appellees contend that the State is procedurally barred from raising its point on appeal, which involves the substitution issue, because it did not proffer evidence in the trial court to prove that it was entitled to forfeiture of the van. Appellees cite A.R.E. Rule 103(a)(2). The argument is not persuasive.
The trial court asked for briefs on the issue of forfeiture and the substitution of assets, asked for arguments on that issue, heard arguments on that issue, took that issue under advisement, and subsequently ruled on that issue as a matter of law. Even though appellees did not move for summary judgment and that term was never used, the trial court’s ruling was tantamount to a summary judgment in favor of appellees.
Arkansas Rule of Evidence 103 applies to rulings on evidence. Subsection (a)(2) provides that when an objection to evidence has been sustained, the proponent of that evidence must make a proffer of evidence to preserve the issue. Here, the trial court never asked the parties if they were ready to try the case on the merits or if they wished to present evidence. The trial court did not make any evidentiary rulings. It is obvious that the trial judge thought that, if he should rule as he ultimately did, there was no need to try the case on its merits. The cited rule of evidence is not applicable to a hearing that was limited to the construction of a statute as a matter of law. Thus, we reach the State’s point of appeal.
The State contends that the trial court erred in denying, as a matter of law, its petition requesting substitution of “any other property” owned by the appellees when the van was exempt from forfeiture because it was encumbered by a bona fide security interest. The argument is well taken.
Arkansas Code Annotated § 5-64-505 (a) provides in pertinent part:
(a) The following are subject to forfeiture:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2), but:
(iv) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.
In the present case, appellees’ van was seized and a notice of seizure for forfeiture and a lis pendens were filed pursuant to 5-64-505(a)(4). Appellees filed a notice of judicial referral and raised the objection that the van was encumbered by a security interest as excepted from forfeiture by Ark. Code Ann. § 5-64-505(a)(4)(iv). Appellees’ objection to forfeiture of the van was well taken.
The State then requested the trial court to allow it to substitute any other property of appellees for the van since the van was not subject to forfeiture. The State relied on Ark. Code Ann. § 5-64-505(o), which provides:
(o) The court shall order the forfeiture of any other property of a claimant or defendant up to the value of the claimant’s or defendant’s property found by the court to be subject to forfeiture under subsection (a) of this section if any of the forfeitable property had remained under the control or custody of the claimant or defendant and:
(6) Is subject to any interest exempted from forfeiture under this subchapter.
Ark. Code Ann. § 5-64-505(o) (Repl. 1993) (emphasis added).
In interpreting statutes, this court gives words their ordinary meaning and, at the same time, attempts to give effect to the legislative intent. State v. Johnson, 317 Ark. 226, 228, 876 S.W.2d 577 (1994). The adjective “any” means “all” or “every” or “of every kind.” The word “other” means different or distinct from that already mentioned, additional, or further. The word “property” means that which belongs to a person. Black’s Law Dictionary, 94 (6th ed. 1990). The words “any other property” used in subsection (o) mean additional property of any kind owned by the defendant.
In addition to giving effect to the plain meaning of the words used in the statute, this interpretation complies with the stated purpose of the act. The comment to section 505 of The Uniform Controlled Substances Act provides:
Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by drug traffickers in committing violations under this Act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility.
Section 5-64-505 of the Arkansas Code Annotated was amended by Act 1050 in 1991 to add subsection (o). The addition of subsection (o) to the statute provides an effective safeguard, because without the provision, drug traffickers could encumber their property that would become subject to forfeiture under 5-64-505(a) and completely evade the forfeiture provision. Thus, interpreting subsection (o) to apply to all assets, whether or not listed in subsection (a), complies with the intent of the General Assembly.
The Ninth Circuit Court of Appeals interpreted a comparable federal statute in a like manner. In United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994), the court addressed the substitution of assets as provided in 21 U.S.C. § 853(p) (1994). In that case, the defendant was charged with violating conspiracy, bank fraud, wire fraud, money laundering, and forfeiture statutes. The government obtained a temporary restraining order freezing assets valued at $1,745,500 that would be subject to forfeiture if the defendant were convicted of money laundering. Part of the amount frozen was released, and then a second amount was again frozen. Ultimately, there were two preliminary injunctions freezing the amounts of $745,000 and $272,500. The parties agreed that the assets were not connected to the money laundering charges. The issue was whether the government could restrain substitute assets prior to conviction. The court held that the government could not restrain substitute assets prior to conviction, but in so holding stated:
Finally, the law provides that if, upon conviction, forfeitable assets are unreachable by the government, the court shall order the forfeiture of substitute assets: property of the defendant that is not connected to the underlying crime. 21 U.S.C. § 853(p).
While it is clear that upon conviction the government may seize substitute assets if the forfeitable assets are unavailable, the question in this case is whether the government may restrain substitute assets prior to conviction.
Id. at 362. Section 853(p) of 21 U.S.C., which was being applied, contains wording similar to Ark. Code Ann. § 5-64-505(o), the provision at issue in this case.
In summary, we hold that under Ark. Code Ann. § 5-64-505(o), the State may proceed to seek forfeiture of “any other assets,” even though they are not connected to the underlying crime, when forfeitable assets used in the underlying crime are unreachable under the provisions of Ark. Code Ann. § 5-64-505 (a)(4)(iv) (Repl. 1993).
Reversed and remanded for proceedings consistent with this opinion. | [
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Andree Layton Roaf, Justice.
This is an interlocutory appeal from the granting of the State’s motion to transfer appellant Ronald Collins’ case from juvenile to circuit court. We affirm the trial court’s decision to grant the motion to transfer.
On July 15, 1994, Ray Shoptaw, a criminal investigator with the Garland County Sherriff’s Office, was conducting surveillance from an unmarked police car parked in front of the house next door to appellant’s home in Hot Springs. Mr. Shoptaw testified that there had been numerous burglaries and thefts from homes in the area, and that appellant and his brother were considered by his office to be suspects in these burglaries. Shortly after noon, Mr. Shoptaw saw appellant, age 16, his brother and another adult male come out of appellant’s home with nothing in their hands, and walk into some nearby woods; about an hour and a half later, he heard gunshots and muffled voices coming from the same area of the woods. A short while later, Mr. Shoptaw saw appellant and his two companions walk out of the wooded area carrying something in their hands. All three were arrested for residential burglary and searched incident to their arrest. One of appellant’s companions had a .22 caliber revolver and numerous pieces of jewelry wrapped in an article of clothing, a pair of gloves and a large screwdriver. Appellant’s brother had a .22 derringer and a pair of gloves with a diamond ring inside one glove. The arresting officers found a pair of gloves and a pistol holster on the appellant. The jewelry, guns and holster were later identified as items stolen in the burglary of a residence in the area. The companion of the Collins brothers admitted to officers that the three had committed this burglary and another burglary on the previous day. Appellant was out on bond for a pending burglary charge at the time of his arrest.
On August 4, 1994, the transfer hearing was conducted; the arresting officer, appellant’s probation officer and appellant’s mother testified at this hearing. At the conclusion of the hearing the trial court made the following ruling:
THE COURT: Based upon the testimony that I’ve heard, I find that there is clear and convincing evidence that this matter should be transferred to the Circuit Court of Garland County, Arkansas.
I make the following findings: that first, this is indeed a serious offense. As I recall, there are just Y and A above a Class B felony, which is what the defendant’s charged with. That there apparently were firearms involved, if not directly, at least collaterally; that this offense would appear to be part of a repetitive pattern of conduct on the part of the defendant. In fact as I see from the record here, this charge was alleged to have occurred while the defendant was charged with another Class B felony, the one to which he had pled last Thursday. And that repetitive pattern then would demonstrate that this individual may be beyond, or is in fact beyond the current rehabilitation available in this state.
That, coupled with the history of the defendant, his traits and maturity, all of which bear upon his prospects for rehabilitation, the Court finds that there is clear and convincing evidence to transfer this matter to Circuit Court. The bond will remain the same.
Appellant’s sole argument on appeal is that the trial court’s finding, by clear and convincing evidence, that appellant should be tried as an adult was clearly erroneous and against the preponderance of the evidence.
We have repeatedly stated that if a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). Clear and convincing evidence is “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). We will not reverse the trial court’s decision on transfer unless we determine the decision was clearly erroneous. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).
Arkansas Code Annotated § 9-27-318 (Repl. 1993) provides that in deciding whether to transfer the case or to retain jurisdiction, the court in which the criminal charges have been filed shall consider the following factors:
(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, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.
In making its decision, the lower court is not required to give weight to each of the statutory factors, Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994), and proof need not be introduced by the prosecutor against the juvenile on each factor. Walker at 400.
The evidence adduced at appellant’s transfer hearing was as follows. Appellant’s probation officer, Robert Evans, recounted that appellant had been in and out of court on numerous occasions. In April, 1992, appellant was charged with third-degree battery; that case was dismissed with the appellant consenting to pay costs. Appellant’s first conviction was in September, 1993, for failure to appear and for obstructing governmental operations; appellant agreed, once again, to pay costs and received probation and a suspended sentence. Appellant’s record also contained a probation violation for failing to report and for leaving the county. At the time of his arrest, appellant had been charged with another burglary which had been transferred from circuit court to juvenile court, and was out on bond for that offense.
Mr. Evans testified that as a probationer, appellant was not at all cooperative and reported in only sporadically and his parents also failed to insure that he reported in as required. Further, counseling was available to appellant, but he had not availed himself of this service. Appellant had not been to the training school, but Mr. Evans opined that, considering appellant’s degree of noncooperation, neither counseling nor the training school would do him any good.
Appellant argues that there is countervailing evidence to the appellant’s alleged failure to cooperate while on probation. Appellant’s mother testified that at times he did not have transportation to make the ten-mile trip to the probation office, his younger sister had frequent surgery and dealing with her medical problems was a family priority, and there had been a death in the family which necessitated a trip out of state. Appellant also argues that the only attempt at rehabilitation was to place him on probation, he had only one felony adjudication, he had no weapon when arrested and there was no evidence that violence was involved in the offense with which he was charged. He further contends his family situation contributed to his lack of maturity; his mother testified that appellant had not completed the eighth grade and that he had failed either the seventh or eighth grade twice.
We considered similar facts and arguments in Sebastian, supra; we said that where there was evidence that the current felony charges were part of a repetitive pattern of offenses and where past efforts at rehabilitation in the juvenile court system have not been successful, these factors alone prevented us from holding the trial court’s ruling on the transfer motion was clearly erroneous, even though no violence was used in the commission of the offense. Also, in Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994), we determined that even though appellant was not accused of personally using a weapon in crimes that involved a pistol and gunfire, his association with the gunman in committing the alleged robberies and thefts was enough to satisfy the violence criterion.
Here, the trial court, in considering the factors outlined in § 9-27-318, found that appellant was charged with a serious offense, a class B felony, that there were firearms involved at least collaterally, that the offense appeared to be part of a repetitive pattern of conduct which would demonstrate that appellant was beyond the current rehabilitation available, and that appellant’s history, traits and maturity also reflected adversely upon his prospects for rehabilitation. We cannot say the trial court was clearly erroneous in finding that there was clear and convincing evidence presented at the hearing to support transfer of this case to circuit court.
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Bradley D. Jesson, Chief Justice.
The appellant, Alfred W. Boeckmann, appeals from a decree of the Cross County Chancery Court, in which the chancellor declared that an equal partner ship existed between the parties for the operation of a tire business, and appointed a receiver. His sole point on appeal is that the evidence presented below was insufficient to support the chancellor’s finding that a partnership existed. The Court of Appeals certified the case to this court pursuant to ARAP 2(a)(7), which allows for an appeal from “an interlocutory order appointing a receiver,” and Ark. Sup. Ct. R. l-2(a)(12), which provides that this court has jurisdiction of interlocutory appeals permitted by ARAP 2. We affirm and remand.
Facts
On April 20, 1993, appellee Harlon Chris Mitchell filed a complaint in Cross County Chancery Court. In the complaint, he alleged that sometime prior to September 11, 1992, he and the appellant, Alfred W. Boeckmann, had entered into a verbal agreement whereby both parties would be equal partners in the ownership and management of Town & Country Tire & Auto, a tire business located in Wynne, Arkansas. According to Mitchell, as a part of this agreement, he and Boeckmann restructured the principal loan on the business by executing a note on September 11. Mitchell further alleged that he and Boeckmann agreed that they would have equal access to the business checking account, and that he was added as a signatory to the existing account. The two operated under this agreement for approximately six months until Boeckmann, without any advance notice, shut down the business, closed out the checking account, and had Mitchell removed from the premises by police.
In his complaint, Mitchell asked that the chancellor declare that a partnership existed and appoint a receiver to take immediate control of the business and for an accounting. In Boeckmann’s answer, he denied the existence of a partnership. According to Boeckmann, he placed Mitchell’s name on the note to help him establish a line of credit and put his name on the checking account to allow Mitchell to pay bills in his absence.
The chancellor conducted a hearing on May 12, 1993. Mitchell testified that in September of 1992, he was working on a farm with Boeckmann’s relatives when he learned of Boeckmann’s desire to sell his tire business. According to Mitchell, Boeckmann told him he would sell the business for $25,000.00. While Mitchell tried to get profit and loss statements from Boeck mann, all he could obtain was a profit and loss tax form, which he took to Cross County Bank. The bank denied the loan. Mitchell claimed the denial was due to Boeckmann’s failure to supply him the necessary financial documentation, while Boeckmann claimed the loan was denied because of Mitchell’s bad credit. It was Mitchell’s testimony that after the bank denied the loan, he and Boeckmann verbally agreed to an equal partnership arrangement. The two men then restructured the outstanding business loan. A fixed rate commercial promissory note was offered into evidence, indicating that the note was executed by Town & Country Tire & Auto as borrower, and Alfred W. Boeckmann and Harlon Chris Mitchell each as “owner.” Also admitted into evidence was a business checking account card listing Boeckmann as owner, and Mitchell and Carolyn Carter, secretary of the business, as authorized signatures.
According to Mitchell, at Boeckmann’s request for his tax purposes, no written partnership agreement was to be executed until the end of the year. In the meantime, Mitchell was to learn the tire business. Between September 1992 and April 1993, both parties worked at the business. During this period, Mitchell drew $250.00 per week and would write his own checks, while Boeckmann drew $160.00 per week, plus payment of medical insurance, truck insurance, personal taxes, and a gas allowance, the total of which was approximately $250.00 per week.
Problems developed between Mitchell and Boeckmann in February of 1993. Mitchell refused to sign a written agreement regarding the business relationship, claiming that it was not the original agreement. Soon thereafter, Boeckmann, without Mitchell’s knowledge, paid off the bank note and had Mitchell’s name removed from the signature card. When Mitchell refused to leave the premises of the business, Boeckmann called police.
Rick Phillips, an employee of Cross County Bank, testified that, by signing the September 11 promissory note, Boeckmann and Mitchell became jointly and severally liable for the total amount of the loan, or $18,508.62. Boeckmann’s home was listed as the security on the note.
Boeckmann testified that no partnership arrangement ever existed. According to Boeckmann, he agreed to sell one half of the business’s inventory to Mitchell for $15,000.00, but that the agreement fell through when Mitchell could not obtain the loan. He stated that he thought it would help Mitchell’s credit if he put Mitchell’s name on the note. It was Boeckmann’s position that Mitchell was an employee, and that he paid Mitchell a $250.00 weekly salary, as well as worker’s compensation, hospital insurance, and social security. Boeckmann agreed that there was some discussion regarding Mitchell purchasing a 10 percent partnership interest, but that there was never any discussion regarding an equal partnership interest. Boeckmann’s testimony was corroborated by his brother, attorney Joe Boeckmann.
On June 1, the chancellor issued a letter opinion indicating that, while the evidence was close, Mitchell had proved by a preponderance of the evidence that a partnership had been formed between the parties. In making this determination, the chancellor gave due consideration to the bank official, Rick Phillips, and the documentary evidence presented. The chancellor granted Mitchell’s request for an accounting, and requested briefs on the issue of whether it was necessary to appoint a receiver. On July 8, a temporary decree was filed, incorporating the chancellor’s letter opinion. In a letter brief submitted by Boeckmann on July 23, he objected to the appointment of a receiver. On February 9, 1994, the chancellor entered a supplemental decree, stating that a partnership existed, and appointing Jim Luker as receiver. In this decree, Luker was vested with authority to require either party to make available to him any documents pertaining to the business, including financial or bank statements. Boeckmann filed a notice of appeal on March 10.
Appellate court jurisdiction
The record does not show that an accounting has been completed. In fact, it indicates that Mitchell has filed two petitions for contempt since the decree at issue was entered. In these petitions, Mitchell complains that Boeckmann has not cooperated with the receiver in providing the necessary documents. The chancellor scheduled hearings on these petitions. In a subsequent decree, the chancellor appointed an accountant to perform a complete accounting of the partnership, and set the case for review. Thus, the order from which Boeckmann appeals is not a final judgment. Arkansas Rule of Appellate Procedure 2(a)(7) provides for an appeal from “an interlocutory order appointing a receiver.” Prior to the adoption of this rule, orders appointing receivers were appealable pursuant to statute. See Ark. Stat. Ann. § 27-2102 (Repl. 1979). Rule 2(a)(7) superseded this statute. In the Matter of Statutes Deemed Superseded by the Arkansas Rules of Appellate Procedure, 290 Ark. 616, 717 S.W.2d 491 (1986).
While the order from which Boeckmann appeals includes the appointment of Jim Luker as receiver, he does not specifically challenge this appointment. Instead, Boeckmann claims that the chancellor erred in her underlying ruling that an equal partnership existed.
Arkansas Rule of Civil Procedure 66 provides that courts of equity “may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper.” We have observed that the appointment of receivers is ordinarily exercised “in conjunction with a pending proceeding, and rarely as a means in itself, but whenever unusual circumstances warrant.” Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). Stated another way, receivership is ancillary to some proceeding over which the court has jurisdiction. Id. at 362. In Chapin, we discussed the inherent discretion of chancellors to appoint receivers, while recognizing that this power should be exercised with restraint and caution:
The power to appoint a receiver is, of course, a harsh and dangerous one. Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929). ‘The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction, or that the claimants in possession are excluding another party from rights which the latter has in the land.’ Saylor v. Hilton, 190 Ky. 200, 226 S.W.2d 1067 (1921).
286 Ark. at 364. The appointment of a receiver is a significant step and can affect the substantial rights of the parties. It follows that review of the propriety of such an appointment be immediately available. This protection is provided by permitting interlocutory appeals of such orders. In reviewing these interlocutory appeals, it is necessary to include a review of the underlying issues which form the basis for the appointment of the receiver. We have similarly interpreted ARAP 2(a)(4), which provides for an appeal from “[a]n order which strikes out an answer, or any part of an answer,” to include this court’s review and ruling “on all issues dependent upon the stricken answer.” Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365, cert. denied, 115 S.Ct. 489 (1994); Arnold Fireworks Display Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). Thus, we will address the issue of whether the chancellor erred in determining that an equal partnership existed.
Existence of partnership
The Uniform Partnership Act is codified at Ark. Code Ann. § 4-42-101 et. seq. (Repl. 1994). A partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” § 4-42-201(1). However, as we recognized in Zajac v. Harris, 241 Ark. 737, 410 S.W.2d 593 (1967), the term “partnership” is not easily elucidated:
The business association that is known in the law as partnership is not one that can be defined with precision. To the contrary, a partnership is a contractual relationship that may vary, in form and substance, in an almost infinite variety of ways.
241 Ark. at 738. Thus, we have said that the primary test of a partnership between the parties is their actual intent to form and operate a partnership. Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974); Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S.W.2d 625 (1962). See also Purser v. Kerr, 21 Ark. App. 233, 730 S.W.2d 917 (1987). The existence of a partnership need be proved only by a preponderance of the evidence. Brandenburg v. Brandenburg, supra. In his brief, Mitchell asserts that we must determine whether there was substantial evidence to support the chancellor’s findings. This is not the correct standard of review. We review chancery cases de novo, and will reverse only if the chancellor’s findings of fact are clearly erroneous. Sunbelt Exploration Co. v. Stephens, 320 Ark. 298, 896 S.W.2d 867 (1995); Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).
The facts before us are distinguishable from those in Morrow v. McCaa Chevrolet Co., 231 Ark. 497, 330 S.W.2d 722 (1960), which Boeckmann cites in his brief. In Morrow, the appellant sought to establish that a partnership existed, yet admitted that an employer/employee relationship existed between himself and the appellee. Morrow also testified that he considered himself to be a sharecropper rather than a partner. His position was simply that because he received half of the profits from the business, he should have been declared a partner. We rejected appellant’s argument on the well-established principle that the sharing of profits alone does not make one a partner. 231 Ark. at 500. In the case before us, there was more evidence offered than the mere sharing of profits, and Mitchell denied that an employer/employee relationship existed.
While Boeckmann offered testimony that no partnership agreement was ever made and that he put Mitchell’s name on the loan to help his credit, the chancellor, who was in the best position to determine the credibility of the witnesses, evidently concluded that Mitchell was the more credible witness. In making her ruling, the chancellor specifically referred to the documentary evidence and to the testimony of the banker, Rick Phillips. In light of this evidence, we cannot conclude that the chancellor’s findings were clearly erroneous.
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Per Curiam.
Petitioner Boswell, Tucker & Brewster requests that a Writ of Prohibition be entered against the Honorable Phillip Shirron, a circuit judge who sits in the Seventh Judicial District of Arkansas. The petition alleges that Judge Shirron presided in a case styled Berry v. St. Paul Fire and Marine Insurance Company, which was concluded on May 19, 1995; that the senior member of the petitioning law firm met with Judge Shirron after the trial to discuss “concerns of specific improprieties” regarding the conduct of Judge Shirron during that trial; that following that meeting and on May 25, 1995, Judge Shirron entered a Uniform Order to transfer “all cases” in which the petitioner law firm represented any party to the other divisions of the Seventh Judicial District; that on June 1, 1995, petitioner law firm filed a motion for a new trial in the Berry case; that on June 2, 1995, Judge Shirron set aside his May 25, 1995 Uniform Order by means of a second Uniform Order. Petitioner now contends that once Judge Shirron recused from all Boswell Firm litigation, he lost jurisdiction over the firm cases and could no longer preside over those cases in his judicial capacity.
We direct that the parties brief this issue and in doing so provide this court with a full record and recitation of the material facts. We have only scant information before us today. For example, the alleged improprieties against Judge Shirron and the status of the Berry trial and the judge who presided over that trial are not part of the record filed with this court. Moreover, the Attorney General has not responded to the prohibition petition on behalf of Judge Shirron.
The Clerk of this court will set the briefing schedule. | [
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Tom Glaze, Justice.
Appellant Jamel Jackson brings this appeal in response to the Pulaski County Circuit Court’s denial of his former jeopardy-based motion to dismiss two counts of capital felony murder, a predicate felony charge of aggravated robbery, first- and second-degree battery charges, and a theft charge. The appeal asserts that the state prosecutor engaged <in misconduct with the intention of goading Jackson into moving for a mistrial. The court denied the motion, and we agree.
On December 17, 1993, Jamel Jackson and co-defendant Shawn Wilson arrived at a residence, No. 17 Dawn Court, in Little Rock, where Grandville Broadway, Alvin Frazier, James Fairchild and Clinton Lewis were present. Fairchild permitted Jackson and Wilson entry into the home. A series of events occurred inside which culminated in the shooting and killing of Broadway and Frazier, and the wounding of Lewis before Lewis escaped out the back door.
Jackson’s jury trial was set for September 26, 1994, but by agreement, his trial was reset for February 13, 1995, because of the unavailability of the medical examiner. The state twice more asked for a continuance, without objection, because of Fairchild’s and Lewis’s unavailability as witnesses.
By the time of the trial on April 5, 1995, Lewis had been located, but Fairchild’s whereabouts remained unknown. As a result of Fairchild’s absence, the prosecutor moved to nolle pros the second-degree battery and the theft charges, since the state had intended to use Fairchild’s testimony to prove these crimes, as well as the aggravated robbery charge which the state alleged led to Broadway’s and Frazier’s deaths. With Fairchild being unavailable and Lewis now having been located, the prosecutor moved to amend the information to name Lewis as a victim of the aggravated robbery charge. Defense counsel objected to the state’s request to name Lewis, and the trial court sustained his objection, stating the state’s request was a material change and untimely.
Because of Fairchild’s continued absence and the trial court’s ruling that the state could not utilize Lewis to prove its case, the prosecutor decided to prove its case against Jackson by using co-defendant Wilson as a witness. Wilson had previously entered a guilty plea to these crimes. At Jackson’s trial, the prosecutor, during opening statement, told the jury that Wilson would testify to matters surrounding the alleged crimes. Defense counsel moved for mistrial, stating Wilson claimed the state had never asked him to be a witness, Wilson had stated he would not be a witness, and in fact, if he was called as a witness, Wilson said he would take the Fifth Amendment. Because Wilson chose not to testify, the trial court determined Jackson had been prejudiced by the prosecutor’s opening statement and granted Jackson’s mistrial motion. The trial court then reset a new trial date for April 25, 1995.
Because Fairchild was still absent and Wilson refused to testify, the state again amended its information renewing its earlier strategy using Lewis’s testimony showing he was a victim of the aggravated robbery which was the predicate felony of the capital murders of Broadway and Frazier. The state also amended its information, restating the second-degree battery and theft charges it had nolle prossed at the April 5 trial.
Jackson objected to the state’s newly amended information and moved double jeopardy had attached. Jackson alleged that the state’s amended information exemplified the real reason why the state had made its prejudicial remarks during its opening statement at the April 5 trial. In sum, Jackson claims that, at the April 5 trial, the state mentioned it intended to use Wilson to prove its case when the state knew Wilson would not testify, and also knew it could not use Lewis as a witness, as well. Jackson further asserted that because Wilson and Lewis were not available, the state needed the court to declare a mistrial so as to avoid another continuance, which would have allowed Jackson to be released for jeopardy reasons under the nine-month speedy trial rule.
In Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994), this court relied upon Oregon v. Kennedy, 465 U.S. 667 (1982), which stated the following:
Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
Id. at 676; Espinosa v. State, 317 Ark. 198, 202, 876 S.W.2d 569, 571 (1994). The Supreme Court further held that the examination of the intent of the prosecutor calls for the court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. Oregon, 465 U.S. at 675.
The central issue here is whether the record supports the trial court’s finding that the prosecutor acted in good faith when, during opening statement, he proclaimed that the co-defendant Wilson would offer testimony in proving its case against Jackson. We believe the objective facts and circumstances favor the state. At a hearing on this issue, the prosecutor explained that during an interview with Wilson on February 7, 1995, Wilson provided a factual recitation or statement inconsistent with his guilty plea. The prosecutor promptly alerted defense counsel concerning Wilson’s inconsistent statement and defense counsel, in turn, joined the prosecutor in further interviewing Wilson. Both the prosecutor and defense counsel quickly had a hearing before the trial court where the prosecutor voiced concern to the judge regarding whether by putting Wilson on the stand to testify consistently as to what he said in the interview, the prosecutor would be suborning perjury, causing a mistrial and double jeopardy to attach. Wilson testified that two months prior to the April 5 trial, the prosecutor had visited him in jail and asked Wilson if he were called as a witness, what would he testify to. Wilson further admitted that it was possible that it was discussed that he was listed as a witness in Jackson’s case. Wilson further related that never, during any conversation with the prosecutor, or anytime prior to the trial, had Wilson indicated to either counsel that he was going to claim his Fifth Amendment rights. The prosecutor asserted that his intent was to put Wilson on the stand for the limited purpose of showing Wilson was with Jackson when the crimes were committed and afterwards the two of them fled the state together. Along with this testimony, the prosecutor intended to utilize Wilson’s earlier guilty plea to show Wilson’s prior inconsistent statement, and his plea testimony describing the events surrounding the crimes.
The above facts alone support the prosecutor’s assertion that he in good faith believed that Wilson would testify as the prosecutor stated during his opening statement at the April 5 trial. In addition, we hold the record also supports the trial judge’s determination that the prosecutor had no intention of goading Jackson into moving for a mistrial.
In conclusion, Jackson invites this court to adopt two other state jurisdictions that have adopted a broader standard than that required under Oregon v. Kennedy. He suggests double jeopardy should attach when prosecutorial conduct is performed with indifference as to whether a mistrial would result. While we doubt the broader standard would benefit Jackson in the circumstances in this case, we reject Jackson’s invitation, especially since in our recent decision in Espinosa we adopted the standard in the plurality decision of Oregon v. Kennedy.
The court responded to the prosecutor’s concern by stating that he did not think there was any subornation of perjury, but that Wilson’s statement would be governed by the rules of evidence as to prior inconsistent statements, and that the point is one to be taken up if and when it arises at trial. | [
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Per Curiam.
Petitioner, Todd Taylor, by his attorney, Henry C. Morris, has filed a motion for rule on the clerk. His attorney admits that he prematurely filed the notice of appeal in this cause and the mistake was on his part. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4.
We will treat petitioner’s motion as one for a belated appeal which we grant upon counsel’s admission of error. We direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. Woods v. State, 316 Ark. 705, 873 S.W.2d 563 (1994). | [
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Robert L. Brown, Justice.
This appeal raises the issue of whether a declaration of automobile insurance issued with a substituted vehicle requires a second rejection of no-fault insurance under Ark. Code Ann. § 23-89-203 (Repl. 1992). We conclude that it does, and we reverse the decision of the circuit court and remand.
On March 6, 1992, appellant Alice Fimpel entered into a contract for automobile insurance with appellee State Automobile Mutual Insurance Company. The contract covered Fimpel’s 1974 Nissan B210. At the time the policy was executed, Fimpel rejected no-fault and uninsured motorist coverages. Sometime after that date, Fimpel replaced the 1974 Nissan B210 with a 1978 Oldsmobile Ninety-Eight. A six-month declaration effective March 8, 1994, and showing the 1978 Oldsmobile as a covered vehicle was issued to Fimpel by State Automobile. State Automobile did not propose no-fault coverage for the substituted vehicle, and Fimpel never withdrew her rejection of that coverage.
On July 24, 1994, Alice Fimpel was involved in an accident while driving her 1978 Oldsmobile Ninety-Eight. As a result of the accident, Fimpel incurred medical expenses in the amount of $6,417.44. On August 23, 1994, Fimpel made demand on State Automobile for payment of medical benefits under her policy of insurance. She claimed that pursuant to our decisions in Lucky v. Equity Mut. Ins. Co., 259 Ark. 846, 537 S.W.2d 160 (1976), and American Nat’l Prop. & Cas. Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994), coverage existed despite her earlier rejection in 1992. State Automobile refused payment of the claim.
On December 13, 1994, Fimpel filed suit against State Automobile for the payment of $5,000 under Ark. Code Ann. § 23-89-202 (Repl. 1992), a 12% penalty, and attorney’s fees. Fimpel then moved for summary judgment. In her brief in support of her motion, she claimed that an issued declaration by State Automobile with a substituted vehicle amounted to a delivery of a new policy, which triggered the statutory requirement that the coverage be rejected anew. She adduced Lucky v. Equity Mut. Ins. Co., supra, and American Nat’l Prop. & Cas. Co. v. Ellis, supra, as authority for her position. Because no rejection was executed by her at the time of the 1994 declaration, Fimpel maintained that coverage was implied and that she was entitled to a judgment against State Automobile under the policy as a matter of law.
State Automobile also moved for summary judgment. It argued that Fimpel could not recover her medical expenses under the policy because she had expressly rejected no-fault coverage when the policy was originally executed. ITie insurance carrier further argued that Fimpel’s reliance on the Lucky and Ellis opinions was misplaced, as those opinions pertained to uninsured motorist coverage, which is a separate and distinct form of insurance from no-fault. Thus, those cases, according to State Automobile, were not determinative. State Automobile also urged that under the terms of the insurance contract the policy was not a new policy but a continuation of the old. The insurance contract, according to the carrier, expressly contemplated substitution of vehicles and a continuation of the same coverage on those vehicles.
The trial court granted summary judgment in favor of State Automobile and concluded that Fimpel never withdrew her rejection of no-fault insurance. The court further stated:
14. Plaintiff relies on American National Property & Casualty Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994) and Lucky v. Equity Mutual Insurance Co., 259 Ark. 846, 537 S.W.2d 160 (1976) in order to support her request for medical injuries coverage under no-fault insurance. However, Plaintiff’s reliance on said cases is misplaced because such cases deal exclusively with uninsured motorist coverage, not personal injury protection or no-fault coverage. Uninsured motorist coverage and no-fault coverage are separate and distinct types of insurance, governed by separate and distinct statutes. Consequently, as determined by the Arkansas Supreme Court in Aetna Insurance Co. v. Smith, 263 Ark. 849, 854, 568 S.W.2d 11 (1978), cases adjudicating issues involving uninsured motorist coverage are not determinative as to cases involving no-fault coverage due to the disparity between uninsured motorist and no-fault coverages.
15. Further, Plaintiff’s reliance on American National Property & Casualty Co. and Lucky is misplaced in that a new insurance policy was not entered into between the parties at the time Plaintiff substituted her 1978 Oldsmobile 98 for her 1974 Nissan B210. The terms of the Auto Policy contemplate vehicle substitution in paragraph J of the definitional section. The parties have the right to make their own contract and legal effect must be given to all provisions and language contained in an insurance contract which are not contrary to statute or public policy. See Shelter General Insurance Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993); Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). Therefore, since the Auto Policy clearly anticipates the substitution of vehicles, such event does not alter, amend or modify the original contract nor does it cancel or terminate the original contract.
We agree with the trial court that the policy as originally issued with endorsements expressly provided that a substituted vehicle would have the same coverage as the vehicle it replaced. The remaining issue to be resolved, however, is whether the public policy of this State, as expressed in the applicable statutes, is contravened under these facts. More precisely, do the mandatory coverage statutes as construed by our caselaw require a second rejection of no-fault insurance when a declaration of renewal is issued which covers a substituted vehicle?
In Lucky v. Equity Mut. Ins. Co., supra, the issue was whether a policy endorsement covering a substituted vehicle constituted a delivery of insurance for purposes of the Uninsured Motorist Act. The insured rejected uninsured motorist coverage in 1966 on his 1960 Ford pickup but later bought a 1964 Ford pickup. In 1971, a policy endorsement was issued showing the substituted pickup truck, but uninsured motorist coverage was not rejected at that time. In 1973, the insured was injured in a vehicular accident. In refusing to accept the carrier’s argument that one rejection sufficed for all substituted vehicles, we stated:
Such a construction should not be placed upon a public policy statute that expects uninsured motorist coverage to be issued or rejected any time automobile liability insurance is “delivered or issued for delivery in this State.”
Lucky, 259 Ark. at 848, 537 S.W.2d at 162.
In American Nat’l Prop. & Cas. Co. v. Ellis, supra, we followed the Lucky decision in a case which also involved a substituted automobile and policy endorsement, but where the Unin sured Motorist Act had been amended in 1977 to provide that “rejection shall continue until withdrawn in writing by the insured.” See Act 532 of 1977, now codified at Ark. Code Ann. § 23-89-403(b) (Repl. 1992). We decided in Ellis that the intent of the General Assembly for single rejections to apply to substituted vehicles was still not clear. We further concluded that a new contract is entered into when a new declaration occurs which covers a substituted vehicle. Accordingly, uninsured motorist coverage must be rejected at that time.
The coverage involved in the instant case is no-fault coverage which is mandated by the General Assembly, as is uninsured motorist coverage, although it is categorically different in its intent and purpose from uninsured motorist coverage. See Ark. Code Ann. § 23-89-202 (Repl. 1992); Ark. Code Ann. § 23-89-403 (Repl. 1992); see also Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978). At the time of the accident in the instant case, a statute provided for rejection of no-fault coverage by the insured:
(a) The named insured shall have the right to reject in writing all or any one (1) or more of the coverages enumerated in § 23-89-202.
(b) After the rejection, unless the named insured requests coverage in writing, the coverage need not be provided in, nor supplemental to, a renewal policy.
Ark. Code Ann. § 23-89-203 (Repl. 1992).
Though uninsured motorist coverage and no-fault coverage have different purposes, both modes of insurance are mandated coverages which must be offered to prospective insureds. Furthermore, both coverages may only be rejected by the insureds. We have construed the Uninsured Motorist Act in the Lucky and Ellis cases to require a rejection of that mandatory coverage when a new declaration occurs which includes a substituted automobile. We see no reason why that construction should not apply to a second category of mandatory automobile insurance — in this case, no-fault coverage — as well.
It is true that § 23-89-203 in 1994 provided that a rejection will be effective for policy renewals, but that language does not precisely embrace renewals when vehicles have been substituted. Had the General Assembly desired to expand the single-rejection concept to substituted vehicles as well as to simple renewals of existing coverage, it could easily have done so. But it had not done so in 1994. We have stated that when an insurance statute is imprecise, it should be construed against the insurance company. See Ross v. United Serv. Auto. Assoc., 320 Ark. 604, 899 S.W.2d 53 (1995). That principle easily applies to the case at hand. In sum, the 1978 Oldsmobile Ninety-Eight was included in the 1994 declaration sent to Fimpel prior to the accident in question. This equated to delivery of a new policy on the substituted covered vehicle, and a rejection of no-fault insurance was required at that time. Failure to obtain a rejection of the coverage with respect to the 1978 Oldsmobile Ninety-Eight results in no-fault coverage being in effect in 1994 pursuant to § 23-89-202.
We are cognizant of the fact that the General Assembly amended section (b) of § 23-89-203 by Act 527 of 1995 to read in part:
(b) After a named insured or applicant for insurance rejects this coverage, the insurer or any of its affiliates shall not be required to notify any insured in any renewal, reinstatement, substitute, amended, or replacement policy as to the availability of such coverage.
We are further aware that Act 527 amended the Uninsured Motorist Act as well and carried with it an Emergency Clause that found that present insurance laws should be clarified with regard to notifying insureds of no-fault and uninsured motorist coverage when there is a substitution of coverage. Subsequent Acts amending existing statutes may in certain instances clarify the original intent of the General Assembly in those earlier statutes. See Pledger v. Baldar Int'l, Inc., 309 Ark. 30, 827 S.W.2d 646 (1992); Nixon v.H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991); Nathaniel v. Forrest City Sch. Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989). It would, however, be patently unfair to sanction a legislative clarification of a preexisting statute when this court has previously construed the effect of mandatory coverage on substituted vehicles contrary to the purported clarification. Insureds and their representatives are entitled to rely on our decisions interpreting existing law at the time of an accident with out a subsequent clarification by the General Assembly which has the effect of nullifying caselaw. Fimpel was injured in the accident on July 24, 1994. We interpret § 23-89-203, as it existed on that date, in light of our decisions in Lucky v. Equity Mut. Ins. Co., supra, and American Nat’l Prop. & Cas. Co. v. Ellis, supra, respecting mandatory coverage and substituted vehicles. Because of our own construction of the effect of declarations of renewal on substituted vehicles, we decline to utilize Act 527 of 1995 as a gauge for determining prior legislative intent.
The order of the trial court is reversed, and this case is remanded for entry of a judgment consistent with this opinion and for such other proceedings as may be required.
Reversed and remanded.
Jesson, C.J., not participating.
Dudley, J., dissents. | [
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Robert L. Brown, Justice.
This is an appeal by class representatives, Bill Cullum and Darnell Cullum, on behalf of a class of Arkla, Inc. ratepayers. They appeal from an order dismissing their civil law causes of action for lack of subject matter jurisdiction. In doing so, they urge various errors but primarily contend that the circuit court had jurisdiction of the tort actions and of their petition for declaratory relief. We disagree and hold that this litigation constituted an impermissible collateral attack on Arkla rates filed with and approved by the Arkansas Public Service Commission.
The events giving rise to this litigation began in 1982. In that year, appellant Arkla entered into a “Take or Pay Contract” with Jerral Jones and Mike McCoy, the principals of Arkoma Production Company. That contract conveyed drilling rights to Arkoma in certain fields owned by Arkla and provided that Arkla would either buy the natural gas produced at a designated contract price, or not buy the natural gas and pay Arkoma 75% of that contract price. Arkla was foreclosed from renegotiating the price in the contract. The market price of natural gas soon fell. The result was that Arkla was locked into buying natural gas at excessively high prices under the Arkoma contracts which, according to the complaint, threatened its fiscal integrity by 1986. In late 1986, an Arkla subsidiary, Arkla Exploration Company, purchased all the outstanding stock of Arkoma and paid Jones and McCoy $14 million. Arkla and Arkla Exploration Company also assumed the Arkoma debt of $35 million owed to Jones and McCoy. Arkla Energy Resources, a division of Arkla, further agreed to purchase natural gas from Jones and McCoy, and Arkla gave them a promissory note in excess of $24 million to secure payment for that natural gas.
The Arkla/Arkoma transaction has been the subject of two reviews by the Public Service Commission. In 1983, the PSC examined the contract, and on July 30, 1984, it issued a report, finding that the Arkla/Arkoma arrangement was a legitimate business transaction which would not adversely affect Arkla rates. In 1989-90, the Arkoma contract and Arkla buy-out were investigated by the PSC pursuant to a complaint by ratepayers that Arkla had defrauded the PSC with the Arkoma transactions and breached its fiduciary duty to its ratepayers by charging rates that were illegally high. The resulting proceedings involved participation by the State Attorney General, Arkla representatives, and the PSC staff. Various ratepayers represented by attorney Thomas Mars (“Mars ratepayers”) intervened. The Cullums also tried to intervene on behalf of Arkla ratepayers and asserted that Arkla had defrauded the PSC, but the PSC found that the interest of the Cullum ratepayers was adequately represented. After discovery and a hearing, the PSC ordered relief to Arkla ratepayers in excess of $13 million.
The Cullums did not appeal their denial of intervention by the PSC. Instead, they filed an action in federal district court in which they made claims under the U.S. Constitution and Racketeer Influenced and Corrupt Organizations Act (RICO) and raised additional state tort claims for fraud. The federal district court invoked the filed rate doctrine, dismissed the constitutional and RICO claims with prejudice, and dismissed the state tort claims without prejudice. The Eighth Circuit Court of Appeals affirmed. Cullum v. Arkla, Inc., 797 F. Supp. 725 (E.D. Ark. 1992), aff’d, 994 F.2d 842 (8th Cir. 1993).
On August 6, 1993, the Cullums filed the present lawsuit in Independence County Circuit Court as a class action against Arkla, Arkoma, and Seagull Mid-South, Inc., formerly known as Arkla Exploration Company. They alleged fraud on the part of Arkla, Arkoma, and Arkla Exploration Company as well as a conspiracy to commit fraud. They asserted that Arkla failed to disclose that $180 million was being paid to the Arkoma principals as the true cost of the buy-out. In addition, they alleged that Arkla ratepayers were forced to pay inflated rates due to natural gas prices which were artificially doubled in order to generate capital to fund the Arkla buy-out of the Arkoma contract. Finally, they asserted that secret accounts and bookkeeping devices were employed to hide Arkla’s fraudulent scheme and that 5.5 billion cubic feet of natural gas was given to Arkoma as part of the buy-out.
Arkla and the other defendants moved to dismiss the complaint on the theory that it amounted to a collateral attack on Arkla’s rates. They urged dismissal for lack of subject matter jurisdiction and pursuant to the doctrine of res judicata because of previous PSC action. On July 5, 1994, the trial judge wrote the parties questioning whether the circuit court had jurisdiction over a common law action of fraud mounted against a public utility. The judge then asked for briefs on the appropriate measure of damages at issue in the litigation and stated that his analysis of whether this was a rate case or fraud action would turn on the question of the measure of damages. On August 10, 1994, the trial judge issued his letter opinion and found that the circuit court lacked subject matter jurisdiction over the action and also that the action was barred by the doctrine of res judicata. The trial judge further found that the Cullums’ complaint did not allege the necessary elements to sustain the tort claims against Arkla Exploration Company and Arkoma. An order followed, dismissing the cause of action under Rules 12(b)(1) and 12(b)(6) of the Arkansas Rules of Civil Procedure.
The Cullums assert error by the trial judge in his jurisdictional ruling and implore this court to focus on common law civil redress in tort and not the rate-making authority of the PSC. We begin by underscoring that the PSC is a creature of the legislature, and its duties are legislative. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980). It is not a judicial body. Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975). We have held that the judiciary must defer to the expertise of the PSC in rate matters. City of Fort Smith v. Arkansas Pub. Serv. Comm’n, 278 Ark. 521, 648 S.W.2d 40 (1983).
The General Assembly has vested the PSC with the sole and exclusive jurisdiction and authority to determine rates to be charged by public utilities. Ark. Code Ann. § 23-4-201(a)(l) (1987). It is further clear that this jurisdiction extends over rate matters and disputes involving public rights between consumers and public utilities but not to private rights found in tort. Ark. Code Ann. § 23-3-119(a), (d), (f)(1) and (2) (1987); see Ozarks Elec. Coop. Corp. v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990). Hence, to the extent that this matter involves a dispute over rates charged by Arkla, its resolution falls within the purview and jurisdiction of the PSC.
The Cullums contend that their cause of action concerns a private right of action in tort against the appellees. They point to several cases from this court to support their position. Ozarks Elec. Coop. Corp. v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982); Southwestern Elec. Power Co. v. Coxsey, supra; City of El Dorado v. Arkansas Pub. Serv. Comm’n, 235 Ark. 812, 362 S.W.2d 680 (1962); Associated Mechanical Contractors of Arkansas v. Arkansas Louisiana Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955); Southwestern Gas & Elec. Co. v. City of Hatfield, 219 Ark. 515, 243 S.W.2d 378 (1951). Upon review, we are convinced that these cases are easily distinguishable and do not resolve the issue at hand in favor of the Cullums.
The Cullums are correct that the cost of developing and producing oil and gas must be borne by the shareholders of a public utility and not by the ratepayers. Act 175 of 1957, now codified at Ark. Code Ann. § 23-15-104 (1987); City of El Dorado v. Arkansas Pub. Serv. Comm’n, supra. Indeed, none of the expenses associated with a private business owned by a public utility can be passed on to the ratepayers. City of El Dorado v. Arkansas Pub. Serv. Comm’n, supra; Associated Mechanical Contractors of Arkansas v. Arkansas Louisiana Gas Co., supra. The Cullums maintain that the City of El Dorado case as well as other cases cited stand for the principle that any costs associated with natural gas exploration are outside of the ratemaking process and, thus, beyond the exclusive authority of the PSC. They further contend that the General Assembly and this court have separated the PSC’s legislative function of ratemaking from the judicial functions of the courts. See Southwestern Elec. Power Co. v. Coxsey, supra; Southwestern Gas & Elec. Co. v. City of Hatfield, supra. Finally, they point to the case of Ozarks Elec. Coop. Corp. v. Turner, supra, as precedent for the circuit court’s jurisdiction over a case involving excessive charges assessed by a utility against a ratepayer.
The Ozarks Elec. Coop. Corp. v. Turner case is factually different from the case at hand. There, the issue concerned a claim by Ozarks Electric that Turner had tampered with its electric meter and owed the utility $1,500. Turner paid the amount but sued the utility to recover it. The jury awarded Turner $1,250, and Ozarks Electric appealed on the basis that this dispute was solely within the jurisdiction of the PSC. In our decision, we made it clear that this was not a case which questioned the rate paid by Turner. The dispute, rather, was over the assertion that Turner had tampered with the meter, and the issue to be resolved was why, if this was not the case, Turner’s individual meter reading was so low. The cause of action was not brought on behalf of a class or group of utility customers. We held that this was a matter appropriately resolved in circuit court.
The case of Southwestern Elec. Power Co. v. Coxsey, supra, is also not on point. In Coxsey, the issue was whether the PSC had exclusive jurisdiction over a declaratory judgment petition filed by one utility (Carroll Electric) against another utility (Swepco) to determine whether Swepco was servicing an area that fell within the certificate of convenience and necessity which the PSC had issued to Carroll Electric. We noted that the judicial decision hinged on the interpretation of the service area in the franchises issued and established by the PSC. Because Carroll Electric, as the certificate holder, simply sought to have the PSC’s order enforced in court, we held that it had a judicial remedy.
The question before us is whether the tort action brought by the Cullums impermissibly encroaches on the exclusive authority of the PSC to fix rates. We believe that it does. We further agree with the trial judge that the filed rate doctrine resolves the jurisdictional question. The Eighth Circuit Court of Appeals defined the doctrine and explained the purpose behind it in 1992:
The filed rate doctrine “forbids a regulated entity [from charging] rates for its services other than those properly filed with the appropriate federal regulatory authority.” The filed rate doctrine prohibits a party from recovering damages measured by comparing the filed rate and the rate that might have been approved absent the conduct in issue.
The purpose of the filed rate doctrine is to: (1) preserve the regulating agency’s authority to determine the reasonableness of rates; and (2) insure that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require. The Supreme Court recently explained: “The duty to file rates with the Commission . . . and the obligation to charge only those rates . . . have always been considered essential to preventing price discrimination and stabilizing rates.”
H.J. Inc. v. Northwestern Bell Telephone Co., 954 F.2d 485, 488 (8th Cir.), cert. denied, 504 U.S. 957, 112 S. Ct. 2306, 119 L. Ed. 2d 228 (1992) (citations omitted). See also Wegoland, Ltd. v. Nynex Corp., 27 F.3d 17 (2d Cir. 1994); Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992); Cullum v. Arkla, Inc., supra. In H.J. Inc., the H.J. class brought a RICO claim and alleged that the regulatory agency was involved in the fraudulent conduct and conspiracy with the public utility. Because of the alleged involvement of the regulatory agency, the H.J. class argued that the filed rate doctrine should not apply. The Eighth Circuit dismissed the argument and stated:
We are convinced, however, that the underlying conduct does not control whether the filed rate doctrine applies. Rather, the focus for determining whether the filed rate doctrine applies is the impact the court’s decision will have on agency procedures and rate determinations.
H.J. Inc., 954 F.2d at 489. The Court concluded that the damages claimed by the H.J. class could only be measured by comparing the difference between the rate the utility commission originally approved and the rate the commission should have approved absent the conduct of which the H.J. class complains.
The reasoning and the holding of the Eighth Circuit in H.J. Inc. apply with equal force to the case before us. The damages sought by the Cullums could only be gauged by assessing the difference between the rates charged by the PSC and the rates the PSC should have charged absent the pernicious conduct which the Cullums allege. That falls squarely within the proscription of the filed rate doctrine.
This court has not formally adopted the filed rate doctrine, although the General Assembly has enacted a statute which prevents a public utility from charging rates other than those approved by the PSC. See Ark. Code Ann. § 23-4-107 (1987). The policy behind the doctrine, as expressed by the Eighth Circuit in the H. J. Inc. decision, is persuasive in our judgment. That policy looks to the stability, uniformity, and finality inherent in limiting rate charges to what has been filed with the regulatory agency and what has been determined as the reasonable rate by that agency. This is a legislative function delegated by the General Assembly to the PSC. We adopt the filed rate doctrine today and apply it to the case at hand. We hold that the circuit court lacked jurisdiction over the civil causes of action in tort which necessarily required an assessment of damages measured by what was the filed rate with the PSC and what the rate should have been. To do otherwise would permit a direct attack on the authority of the PSC to fix rates.
Because the absence of subject matter jurisdiction in circuit court resolves the matter, we need not reach the Cullums’ remaining points relating to declaratory relief and res judicata. We do observe, however, that the Cullums’ second point alleges error by the trial judge in failing to rule on their request to declare the Arida/Arkoma contracts illegal and void. We have held that it is incumbent upon the affected party to obtain a ruling on a request for relief and failure to do so constitutes waiver. See Oglesby v. Baptist Medical Systems, 319 Ark. 280, 891 S.W.2d 48 (1995); Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993). The Cullums failed to do this on their claim for declaratory relief.
Affirmed.
Jesson, C.J., not participating.
The Cullums do not make this finding a point of their appeal. | [
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David Newbern, Justice.
The issue before us is whether the Pulaski Circuit Court erred in dismissing as untimely an appeal from Little Rock Municipal Court of an order refusing to set aside a default judgment. We hold the appeal should not have been dismissed.
Affirmative Risk Management Corporation (ARM), the appellee, brought a claim against Chris Marcinkowski in Little Rock Municipal Court. Apparently ARM and Mr. Marcinkowski engage in the business of adjusting insurance claims. The action of ARM against Mr. Marcinkowski was for intentional interference with a business expectancy. The complaint alleged that Economy Insurance Company inadvertently notified Mr. Marcinkowski of a claim it intended to have adjusted by ARM and that Mr. Marcinkowski adjusted the claim knowing that it was not intended for him to do so.
The complaint, seeking damages of $3000, was filed August 6, 1993. A default judgment for the full amount sought was entered by the Municipal Court on October 12,1993, although no hearing was held on damages. On October 21, 1993, Mr. Marcinkowski filed an answer to the claim. On November 12, 1993, he moved to have the default judgment set aside and sought a hearing on the reasons for the late answer and the matter of damages awarded in the amount of “$3,000 when the contract was only a $90.00 job.” The motion to set the default judgment aside was denied by the Municipal Court by an order of February 22, 1994.
On March 4, 1994, Mr. Marcinkowski appealed to the Circuit Court the denial of the motion to set aside the default judgment and the refusal of the Municipal Court to hold a hearing on the issue of damages. ARM moved to dismiss the appeal because it was filed more than 30 days from the October 12, 1993 judgment of the Municipal Court. In his brief responding to the motion to dismiss, Mr. Marcinkowski stated:
A hearing was scheduled on February 17, 1994, on Appellant’s motion to set aside the default judgment and for the Appellee to prove his damages. At this hearing the Municipal Court denied Appellant’s motion to set aside the default judgment and refused to hear any evidence concerning Appellee’s alleged damages. It was from this Order that Appellant now appeals. . . . Appellant’s Notice of Appeal from this Order is clearly within the 30 day time limit.
It is clear that Mr. Marcinkowski argued to the Circuit Court that he was appealing from the Municipal Court’s refusal to set aside a default judgment rather than appealing from the judgment and that his appeal from the refusal to set aside was timely.
The Circuit Court held a hearing on ARM’s motion to dismiss the appeal. In the course of the hearing, the Court remarked that the judgment was “bad” because there had been no hearing on damages, and that such a hearing could have been sought in the Municipal Court. The Circuit Court entered an order dismissing the appeal because of failure to appeal the Municipal Court judgment within 30 days from the date of its entry.
In the final paragraph of his brief before this Court, Mr. Marcinkowski states the following:
Appellant’s motion to set aside the default judgment was pursuant to Rule 55(c)(2) of the Arkansas Rules of Civil Procedure which apply to the municipal Court under Rule 10 of the Inferior Court rules. The Circuit Court was in error when it dismissed Appellant’s appeal for being untimely because until February 17, 1994 there was not an appealable order and his Notice of Appeal filed after February was well within the 30 day requirement.
While a part of the argument, including a citation to Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988), is to the effect that the Circuit Court’s default judgment was not a final order, another part is obviously that the appeal from the refusal to set aside the judgment was timely. The Circuit Court’s sole stated basis for dismissing the appeal was its lack of timeliness. In these circumstances we need not be concerned with the argument that the judgment was not a final order because we know the reason for the Circuit Court’s action and we have before us Mr. Marcinkowski’s concurrent argument that the appeal to the Circuit Court was timely.
Rule 9(a) of the Arkansas Inferior Court Rules requires that a judgment of a municipal court be appealed within 30 days from the date of entry of the judgment. See Allred v. State, 310 Ark. 476, 837 S.W.2d 469 (1992); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992). That rule would control this case if the appeal were from the judgment. It is, however, as noted above, an appeal from the order refusing to set aside the default judgment. None of the Inferior Court Rules applies directly to this situation. Rule 10 provides, “Where applicable and unless otherwise specifically modified herein, the Arkansas Rules of Civil Procedure . . . shall apply to and govern matters of procedure ... in the inferior courts of this State.”
Arkansas R. Civ. P. 55(c) states that, “The court may, upon motion, set aside a default judgment,” and it prescribes the bases for doing so, including, “(4) any other reason justifying relief from the operation of the judgment.” It requires that the party seeking to set such a judgment aside “demonstrate a meritorious defense to the action” unless the judgment is void, in which case no such defense need be stated. No time limit for moving to set aside a default judgment is prescribed in the rule.
Reviews of municipal court decisions in circuit courts are de novo. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989). We are tempted to conclude that Mr. Marcinkowski is entitled to no relief because he could have had a complete de novo review of his case had he simply appealed from the Municipal Court judgment instead of filing the belated answer and then moving to set the judgment aside. That, however, would be tantamount to holding that a municipal court defendant who has suffered a default judgment may have no review whatever of a municipal court’s decision on refusal to set aside a default judgment in response to a Rule 55(c) request.
Denial of a motion to set aside a default judgment by a circuit or chancery court is an appealable order. We entertained such appeals, for example, in Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992), and in May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990). We see no reason to deny such appeals from municipal to circuit courts. To do so would be inconsistent with our allowance of such appeals to the Court of Appeals and to this Court from our courts of general jurisdiction, and we can think of no good reason for such an inconsistency.
The Circuit Court must entertain a timely appeal from denial by the Municipal Court of a motion to set aside a default judgment. The Circuit Court is to conduct a de novo proceeding to determine, in accordance with Ark. R. Civ. P. 55(c) whether relief from the operation of the judgment is justified. If no such relief is justified, the matter is ended. If relief is granted, the case will then be treated as any other de novo review of a municipal court judgment.
Reversed and remanded.
Dudley, J., not participating.
Jesson, C.J., dissents. | [
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Bradley D. Jesson, Chief Justice.
We are asked to review an order granting summary judgment in favor of the Arkansas Securities Commissioner. The chancellor ruled that the Commissioner was, as a matter of law, entitled to an injunction prohibiting the appellants from transacting business as a mortgage loan company or loan broker in the State of Arkansas. We find no error and affirm.
In late 1991 and early 1992, appellant Hicks began formation of Allegis Mortgage Company. He made inquiries at the Arkansas Securities Department (“the Department”) regarding registration and exemption requirements. He was given a copy of the Mortgage Loan Company and Loan Broker Act, which is codified at Ark. Code Ann. §§ 23-39-101 to 309 (Repl. 1994). The Act provides that a mortgage loan company wishing to do business in Arkansas must complete an application for registration containing, among other things, the applicant’s audited financial statements, must post a $25,000.00 surety bond, and must have a net worth of not less than $25,000.00. See Ark. Code Ann. §§ 23-39-301 to 305 (Repl. 1994).
On January 27, 1992, Hicks sent a letter to the Department claiming an exemption from the Act’s requirements. He based this claim on the fact that, as of January 23, 1992, Allegis had received approval from the Department of Veterans Affairs (“the VA”) to act as a prior approval lender on VA loans. Indeed, Ark. Code Ann. § 23-39-306(a)(4) (Repl. 1994) provides that a company shall be so exempt if the company is subject to licensing, supervision, or auditing by the VA. Nevertheless, the Department denied the exemption, noting that an auditor’s report submitted by Hicks showed Allegis to be technically insolvent.
At this point, a flurry of correspondence began among Hicks, the Department, and the VA. On February 3, 1992, the VA withdrew its approval of Allegis based on “misrepresentation of your status as a creditable mortgage corporation.” A few days earlier, the VA had received information that hot check charges had been filed against Hicks and that Hicks had failed to pay for office supplies. Next, the Department, citing the company’s insolvency, ordered Allegis and Hicks on February 7, 1992, to cease and desist from any loan mortgage or brokering activity.
Hicks immediately contacted both the Department and the VA in an attempt to explain the company’s situation and to ask for reconsideration. However, the Department maintained its position. The VA (by this time having received a copy of the Department’s cease and desist order) refused to reinstate its approval. The net effect of these events is that, other than the brief period of VA approval between January 23 and February 3, 1992, Hicks and Allegis were not authorized by any regulatory entity to conduct mortgage loan or brokerage business in Arkansas.
On April 14, 1992, the Commissioner filed suit in Pulaski County Chancery Court seeking an injunction against Allegis and Hicks. The petition alleged that the company was engaging in fraudulent business practices, was insolvent, and was doing business without a proper registration or exemption filing. Numerous documents were attached to the petition in which customers complained that they had paid various fees but had not received loans. Documents were also attached that showed that several appraisers and a credit bureau that had performed services for Allegis had not been paid.
The chancellor issued a temporary restraining order (TRO) on April 14, 1992, the same day the petition for injunctive relief was filed. The appellants moved to dissolve the TRO, denying insolvency and fraudulent business practices, and stating that, because Allegis was a VA approved lender, it was exempt from the registration, bond, and net worth requirements of state law. The TRO was temporarily lifted to allow the appellants to close three loans, but it otherwise remained in effect.
In February of 1994, the Commissioner apparently discovered for the first time that the appellants’ VA approval had been revoked on February 3, 1992. An amended petition for a permanent injunction was filed, containing the new allegation that the VA had withdrawn its approval. The appellants filed no response to this petition.
On September 23, 1994, the Commissioner filed his motion for summary judgment, which is the subject of this appeal. The motion set out three reasons why the Commissioner was entitled to injunctive relief as a matter of law: 1) since the appellants never answered the amended complaint, the averments therein were taken as admitted; 2) since VA approval had been revoked, the appellants were no longer exempt from state regulation; and 3) the company was insolvent. Ten exhibits were attached to the deposition. Exhibit one was the affidavit of VA loan officer Wilma Graham. Ms. Graham stated that the VA withdrew its approval by letter of February 3, 1992, because it received information that hot check charges had been filed against Hicks. She further stated that the approval had never been reinstated. Exhibits two through six were affidavits of Allegis customers. The customers detailed their transactions with Hicks and Allegis, once again stating that they had paid fees of various kinds but had not received loans. Importantly, the affidavits demonstrated that the business transactions took place between January 20, 1992, and late March of 1992, outside the eleven day “window” of VA approval. The final three exhibits were from appraisers who had performed work for Allegis and had not been paid. In particular, one appraiser stated that he had been paid with a check on which payment was stopped and later by a check written on a closed account.
The appellants responded to the motion by denying receipt of the amended complaint, denying that Allegis was insolvent, denying that the VA properly revoked its approval, and claiming that there were issues of fact to be decided. The appellants attached three exhibits to their response. First was the affidavit of Hicks stating that the VA approval was improperly revoked and that the Department had improperly denied the exemption. Second was the deposition of Wilma Graham, in which she stated that there was a possibility, though not a probability, that the VA would have reinstated its approval had it not received a copy of the Department’s cease and desist letter. Third were the exhibits to Ms. Graham’s affidavit, which primarily consisted of the correspondence among the parties in January and February of 1992.
A hearing was held on October 31, 1994. The chancellor granted the Commissioner’s motion for summary judgment. He based his ruling not only on the exhibits to the motion, but on the fact that the appellants had failed to respond to the Commissioner’s amended complaint filed February 3, 1994. Without reaching the issue of the appellants’ failure to respond to the amended complaint, we find that the chancellor’s decision to grant summary judgment was correct.
The Arkansas Securities Commissioner has been given the duties of general supervision and control over mortgage loan companies and brokers doing business in Arkansas. Ark. Code Ann. § 23-39-201 (Repl. 1994). Pursuant to those duties, the Commissioner may seek injunctive relief against a company whenever it appears that the company is engaging in practices prohibited by the act, or that the assets or capital of the company are impaired, or that the company’s affairs are in an unsafe condition. Ark. Code Ann. § 23-39-202 (Repl. 1994).
The exhibits to the Commissioner’s motion show conclusively that the appellants: 1) transacted mortgage loan business during a time when they were not authorized to do so, either by the department or the VA, 2) were not paying their bills and attempted to pay some bills with improper checking procedures, 3) took money from customers and provided no services in return, and 4) appeared, at least under the findings of one audit, to be undercapitalized. The appellants’ response did nothing to rebut the substance of these allegations. In the face of such evidence, the chancellor was correct to conclude that, at the very least, the appellants’ affairs were in an unsafe condition. Therefore, a proper showing was made for the issuance of the injunction.
The appellants make several arguments on appeal, none of which have merit. They claim that federal law mandates notice and opportunity for a hearing before VA approval is revoked. See 38 U.S.C. § 3704(d), which provides that, “subject to notice and an opportunity for a hearing,” a lender may be barred from acquiring VA loans. However, the chancellor noted correctly that such an argument should be presented to the VA. In Galloway v. Arkansas State Highway & Transp. Dept., 318 Ark. 303, 885 S.W.2d 17 (1994), we recognized that, in instances such as this one, enforcement of regulations regarding notice and hearings is not the responsibility of the state but of the particular federal agency involved.
The appellants also present two constitutional arguments. They claim that the Act violates the due process clause and the supremacy clause of the U.S. Constitution. Not one case or other citation of authority is given in support of these arguments. We will not address arguments unsupported by convincing argument or authority. Galloway, supra.
Finally, the appellants direct us to a definition of “loan broker,” which appears at Ark. Code Ann. § 23-39-401(B)(i)(j) (Repl. 1994). Whether this definition is helpful to appellants, or not, it is not applicable here. The cited statute is part of Act 140 of 1993 which, by the terms of its preamble, does not operate to alter any definitions which apply to the Mortgage Loan Company and Loan Broker Act.
Affirmed.
At this point, the Commissioner was unaware that the VA had withdrawn its approval.
At a later hearing, the Commissioner’s counsel explained that the term “insolvency” was being used in a broad sense to include the appellants’ assets being impaired and their affairs in an unsafe condition. | [
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Per Curiam.
Petitioner, Reginald Johnson, by his attorney, Tell Hulett, has filed a motion for rule on the clerk. His attorney admits that he untimely filed a notice of appeal in this cause due to a mistake on his part. Under our rules the notice of appeal was of no effect. Ark. R. App. R 4.
We will treat petitioner’s motion as one for a belated appeal which we grant upon counsel’s admission of error. We direct that a copy of this per curiam will be forwarded to the Committee on Professional Conduct. Woods v. State, 316 Ark. 705, 873 S.W.2d 563 (1994). | [
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Per Curiam.
Mr. Mayo, through his attorney, Roy C. Lewellen, requests permission to file a belated transcript. In Mayo v. State, 321 Ark. 566, 906 S.W.2d 285 (1995), this court denied Mr. Mayo’s Motion for Rule on the Clerk because Mr. Lewellen had not accepted full responsibility for not timely filing the transcript.
Mr. Lewellen has now filed an affidavit in which he accepts full responsibility for tendering the transcript one day after the deadline. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Donald L. Corbin, Justice.
Appellant, Erwin L. Davis, appeals a judgment of the Washington County Chancery Court finding him the father of a minor child, Kerwin Mikhail Lee Sheppard, born out of wedlock on December 10, 1990, and ordering him to pay support for the child. Appellant’s sole assignment of error is the trial court’s denial of his motion to dismiss pursuant to ARCP Rule 41 for prior dismissal with prejudice of the same action. On July 6, 1994, this court denied appellant’s petition for writ of prohibition on the same issue. That denial was without prejudice for appellant to raise the issue on appeal. Jurisdiction of the appeal is properly in this court under Ark. Sup. Ct. R. l-2(a)(3), as construction of Rule 41 is required. We find no merit to appellant’s argument and affirm the judgment.
This is the third time that appellee, Office of Child Support Enforcement, has initiated paternity and support proceedings relating to the same minor child against appellant on behalf of the child’s mother, Marlene Sheppard. Appellant has consistently denied paternity and argued that if the child was indeed his, it was because Sheppard broke into his home, stole a used condom containing his sperm, and artificially inseminated herself. The first paternity proceeding resulted in a voluntary dismissal without prejudice pursuant to appellee’s motion. After the first dismissal, appellant sued Sheppard and her mother for the alleged break-in of his home. Appellant testified his purpose for filing suit was to force a paternity test. According to appellant’s testimony, the test showed the probability of his paternity is 99.65 percent. The second proceeding ended in a dismissal with prejudice after a settlement was reached and acknowledged by the chancery court. Thus, appellant argues, the dismissal with prejudice barred appellee from pursuing a third action against him.
Appellant relies on Rule 41 and the theories of estoppel, waiver, accord and satisfaction, release, discharge, and res judicata. Rule 41 provides that when a plaintiff has once dismissed her case voluntarily, a subsequent dismissal by that plaintiff operates as an adjudication on the merits unless the parties agree in writing that the subsequent dismissal will be without prejudice. The order dismissing the second complaint with prejudice is the order upon which appellant’s argument in this case must rest, and states in its entirety:
COMES NOW FOR HEARING the Plaintiff’s Motion for Dismissal With Prejudice, and Plaintiff, Marlene R. Sheppard appearing in person and as the natural parent and next friend of Kerwin L. Sheppard, a minor, and further represented by Counsel, George E. Butler, Jr., appearing on behalf of the Plaintiff and the State of Arkansas, Department of Human Services; and Defendant, Erwin Davis, appearing and by his attorney, Dale Varner, and from the pleadings, representations of Plaintiff and statements of the attorneys, and other matters appearing before the Court, the Court finds:
1. That this Court has jurisdiction over the parties and the subject matter herein.
2. That all parties have agreed to a settlement of all contested and disputed issues appearing before the Court as evidenced and acknowledged by the below signature of Plaintiff, and Plaintiff represents to the Court that all terms of same have been executed in full, Defendant having no further duties, and that Plaintiff has prayed that this case be dismissed with prejudice.
IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the above captioned cause should be, and hereby is, dismissed with prejudice.
More than a year after the above-quoted dismissal with prejudice was entered, appellee initiated this suit, the third suit for paternity and support, alleging in the complaint that the dismissal with prejudice was void under Arkansas law. In that complaint, appellee acknowledged that the dismissal with prejudice was based upon appellant’s payment of $10,000.00 towards medical expenses, past support, and future support. Consequently, appellee requested the $10,000.00 be allocated by the trial court to medical expenses, past support, and future support based upon the Family Support Chart.
The trial court denied appellant’s motion to dismiss the instant suit by order stating that the dismissal with prejudice was void as against public policy because there was no hearing to determine that dismissal was in the child’s best interest. After a hearing on the third paternity complaint, the trial court entered an order reflecting that all parties were represented by counsel and that the minor child was represented by a guardian ad litem. In the order, the trial court found appellant to be the father of the minor child in question, ordered appellant to pay support at a rate of $200.00 per month, and applied the $10,000.00 appellant had previously paid to future support payments such that appellant received credit for fifty payments. From that order comes this appeal in which appellant contends the trial court erred in denying his motion to dismiss and allowing the case to proceed after the dismissal with prejudice.
It has long been the law in Arkansas that the interests of a minor cannot be compromised by a guardian without approval by the court. See, e.g., Rankin v. Schofield, 71 Ark. 168, 66 S.W. 197 (1902). It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Id.; Kuykendall v. Zachary, 179 Ark. 478, 16 S.W.2d 590 (1929). Any judgment by a court that compromises a minor’s interest without the requisite investigation is void on its face. Id.; Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905).
The foregoing rules of public policy protecting minors have been applied to a child’s right to support from his parents. See, e.g., Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). Moreover, this court has stated that the duty of support is a continuing one and one that cannot be permanently bargained away by a parent to the child’s detriment. Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975). Consequently, the parents’ inability to permanently bargain away the child’s right to support preserves the court’s power to modify an order to meet subsequent conditions. Id.; Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991).
Appellant argues that the foregoing policy considerations apply only to support cases and not to contested paternity cases. This argument is entirely without merit, for the major purpose of Arkansas’s filiation law is to identify the putative father so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).
As appellant asserts, there is no doubt that the Arkansas Rules of Civil Procedure apply to paternity proceedings. Ark. Code Ann. § 9-10-102 (Repl. 1994). This case therefore requires us to balance the application of ARCP Rule 41 against the public policy that a minor’s right to support cannot be permanently settled by his parent. Given the long-standing protection of minors by the courts in this state and others, the scales tip heavily in favor of protecting the minor’s well-guarded right to continuing support. Muncrief, 251 Ark. 580, 473 S.W.2d 907; see, e.g., Tuer v. Niedoliwka, 285 N.W.2d 424 (Mich. App. 1979). The welfare of the child is paramount. Storey, 258 Ark. 24, 523 S.W.2d 387.
The dismissal with prejudice upon which appellant relies in this case does not indicate that the trial court considered whether the settlement would be to the child’s benefit. In fact, we cannot determine from the terms of that order that the trial court was even aware of the terms of the settlement. Consistent with Rankin, 81 Ark. 440, 98 S.W. 674, and Kuykendall, 179 Ark. 478, 16 S.W.2d 590, the order of dismissal is therefore void on its face. Void judgments have no legal effect. Rankin, 81 Ark. 440, 98 S.W. 674. They are worthless; no rights can be obtained from them and all proceedings founded upon them are equally, worthless. Id. Because the dismissal with prejudice was void, it could not and did not operate as a bar to these proceedings under ARCP Rule 41. The trial court did not err in so holding.
The judgment is affirmed.
Roaf, J., concurs.
Andree Layton Roaf, Justice, concurring. I concur with the majority holding that the trial court should be affirmed under the facts presented in this case, but write to express several concerns.
First, as the majority correctly notes, attorneys with the appellee Office of Child Support Enforcement (CSE) initiated all three paternity actions against the appellant, and agreed to settle and dismiss the second action with prejudice. The same office then filed the third action a little more than a year later, challenging the dismissal with prejudice their office had approved.
George Butler, the attorney for CSE in the first two actions, testified as follows:
Even though these things are styled Marlene Sheppard vs. Erwin Davis, the Office of Child Support Enforcement actually always represents the State. We style our pleadings different now than we did then, but we always represented the State, and at this particular time I think Ms. Sheppard may have been, or she may have been the other time, may have been on some public assistance at that time too in which event those cases are automatically referred to us.
We had always — the law always was, and there had always been an understanding we represented the State, and then we finally started changing — decided we needed to start changing our captions, and we have done that.
Mr. Butler further testified:
I thought there was a chance that this settlement might be subject to attack later on, if not by her, but by a Guardian of the child. I wasn’t for certain at that time whether or not it might be void as against public policy.
The conduct of the CSE attorneys is not at issue in this opinion, however, to the extent they may feel that they are free to continue the not uncommon practice of filing and dismissing multiple actions against the same defendant without fear of running afoul of Rule 41 in future cases, I would point out that Ark. R. Civ. P. 41(d) provides for payment of costs of previously dismissed actions, and Ark. R. Civ. P. 11 provides for sanctions for causing the needless increase in the cost of litigation. These rules should apply to attorneys who are employed by the “state” and who work exclusively in the domain of child support, whether they consider themselves to be collecting funds to reimburse the state for AFDC and other public assistance or whether they are truly looking out for the welfare of children in need of support.
Also, I point out that there is no statute of limitation on bringing an action for paternity. See Ark. Code Ann. § 9-10-102(b). Indeed, such actions are often brought on behalf of teenage children, and up to the eve of a child reaching the age of majority. Under such circumstances, a one-time settlement payment and dismissal with prejudice would not be unreasonable if both parties are represented by counsel, as in the instant case.
I concur. | [
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Tom Glaze, Justice.
Leo Whitney, eighty-one years old, had been a patient at the Veterans Administration Hospital in Fayetteville, but afterwards was discharged and transported directly to the appellee Holland Retirement Center. During his stay at Holland, Leo left the premises sometime between 10:30 p.m. and 6:00 a.m., was unable to reenter the building because of locked doors, and died of hypothermia as a result of exposure to sub-freezing temperatures. Leo’s estate and certain family members brought suit against Holland, alleging Holland negligently (1) failed to instruct Leo on how to reenter the building, (2) admitted Leo without obtaining his medical records, and (3) failed to make itself aware of Leo’s special medical needs or problems. At a jury trial, Holland was found twenty-four percent negligent in causing Leo’s death and Leo was found nine percent at fault; the jury awarded the estate zero dollars, but it awarded Robert and Edward Whitney $3,000 and $2,500.
The Whitney estate moved for a new trial, alleging the jury erred in failing to award the estate any damages. The estate further argued the trial court erred during trial when it allowed David L. Moore’s deposition read into evidence. Moore is a clinical social worker at the VA Hospital, and he had referred Leo and family to Holland as an appropriate care facility for Leo. After the trial court denied the estate’s motion, the estate brings this appeal.
We first consider the estate’s argument that the trial court erroneously admitted Moore’s pretrial deposition into evidence. The events that led to this trial issue were as follows. Moore’s name had been on Holland’s witness list, but Moore did not appear when the trial commenced. Because of Moore’s failure to appear, Holland issued a subpoena directing Moore to appear in court to testify the next day. Moore again failed to appear. Holland explained to the trial court that VA regulations, entitled “Testimony of Department [of Veteran Affairs] Personnel and Production of Department Records in Legal Proceedings,” 59 Fed. Reg. 6564-6570 (1994), made it impossible for Holland to produce Moore as a live witness. During a recess, and with trial counsel present, the trial court telephoned the VA District General Counsel’s office, which informed the court that, if Moore appeared and testified at trial, Moore would violate the VA regulations. VA’s counsel informed the trial court that he had directed Moore not to obey the court’s subpoena.
When Holland asked that Moore’s deposition be read into evidence because of Moore’s unavailability, the estate objected, stating Holland should have subpoenaed Moore earlier. The estate also argued that, when Moore’s deposition was taken fourteen months prior to trial, the deposition was considered one of discovery and not for evidentiary purposes. The estate claimed that, if the deposition was admitted, it would be prevented proper and effective cross-examination of Moore.
Citing Ark. R. Civ. P. 32(a)(3)(D) and (E), the trial court allowed Holland to introduce Moore’s deposition into evidence. In sum, the trial court ruled Holland could use Moore’s deposition because Holland had been unable to procure Moore’s appearance. It also found that such exceptional circumstances existed as to make it desirable, in the interest of justice and with due regard to the importance of presenting Moore’s testimony in open court, to allow his deposition to be used. We hold the trial court ruled correctly.
We initially point out that, although not argued below, the estate now contends the VA regulations involved here do not prohibit a VA employee, like Moore, from testifying at a court proceeding, but instead only establish the procedure to follow when VA personnel are requested to provide testimony or to produce documents. The estate argues that Holland’s failure to follow the VA regulations in seeking Moore’s court appearance did not amount to an exceptional circumstance under Rule 32(a)(3)(E). We are unable to consider this specific argument since it was not presented to the trial court below. It is well settled that, if the grounds for an objection are changed on appeal, the argument is considered raised for the first time on appeal and the argument is waived. Cortinez v. Brighton, 320 Ark. 88, 894 S.W.2d 919 (1995).
The estate argued below, and argues now on appeal, that an implied agreement existed between the parties that Moore’s deposition was only for discovery purposes. The estate’s counsel claims this implied agreement was borne out by Holland never indicating until trial that Moore would not be called as a live witness. The estate relies upon Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), which in relevant part related the following:
In Shelter Mutual Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), we note that ARCP Rule 32 outlines the use of depositions; it does not distinguish between discovery depositions and evidentiary depositions. Yet, we know that members of the bar commonly describe depositions as being either discovery or evidentiary. Here, the parties and the court obviously thought that they were dealing with “discovery” depositions, and accordingly, there was an implied agreement that they were not evidentiary depositions and could not be used as evidence at the trial. Thus, appellant waived the literal wording of ARCP Rule 32.
In Goodwin, the parties’ and the trial court’s understanding before trial was that plaintiff’s counsel would not use a doctor’s discovery deposition as an evidentiary deposition. In view of this agreement and understanding, this court held the plaintiff had waived Rule 32 and therefore could not introduce the doctor’s deposition at trial. Here, we note that, unlike in Goodwin, the party seeking introduction of the witness’s deposition did attempt to subpoena the witness. In fact, the record reflects the witness, Moore, had received the subpoena, and except for VA regulations, would have appeared in court pursuant to the subpoena. Also unlike in Goodwin, the record here reveals the parties never limited the use of Moore’s deposition, nor did the trial court elicit from counsel that Moore’s deposition would not be utilized at trial. The trial court went to considerable trouble in determining whether Moore was available and in deciding whether exceptional circumstances existed warranting the admission of Moore’s deposition. We conclude that the trial court did not abuse its discretion in ruling as it did. See Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 778 S.W.2d 526 (1994).
Before leaving this issue, we take this opportunity to reiterate that Rule 32 does not distinguish between discovery and evidentiary depositions. Rule 32 is essentially the same as Fed. R. Civ. P. 32, which has been construed to point out that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). See Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988).
The estate’s second point of reversal is its claim that the jury erred in failing to award it any damages. The decedent’s daughter-in-law, Virginia Whitney, was the only witness testifying to the funeral expenses and costs incurred in handling the estate, and she testified that $4,000 was expended for Leo’s funeral and $4,000 to $5,000 was spent “to keep up” Leo’s property. Virginia’s husband, Robert, had been the initial representative of the estate but after he died, Edward was appointed the estate’s representative. As mentioned previously, the jury awarded Robert $3,000, Edward $2,500, and the estate nothing.
First, we find the abstract is not clear as to what expenses, if any, the estate actually incurred in this case. While it is true that the jury assigned some negligence on Holland’s part in Leo’s death, the only testimony abstracted concerning damages or expenses is that of Virginia Whitney, as mentioned above. When the estate’s counsel stated that he wished to elicit Virginia’s testimony to prove Leo’s funeral expenses and costs in maintaining Leo’s property, Holland objected, stating maintenance costs were not “an item of damage in this case.” The trial court allowed Virginia’s testimony, but stated it believed probate court was the proper venue for reimbursement of maintenance costs. In allowing Virginia’s testimony, the trial court said that it would later consider the jury instructions and the appropriate elements of damages. Those instructions, however, are not abstracted and the only testimony given by Virginia is, “We incurred expenses in the amount of $4,000 for the funeral bill” and “$4,000 to $5,000 for keeping up the property.” Virginia’s testimony reflects she and other family members paid $8,000 to $9,000 for funeral and maintenance expenses, but nothing in her testimony reflects what the estate was due. As stated above, Robert and Edward received a total of $5,500.
Generally, where the primary issue on appeal is the alleged inadequacy of the jury’s award, the appellate court will sustain the trial court’s denial of a motion for new trial unless there is a clear abuse of discretion. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995). A jury has the right to believe or disbelieve all or any part of the testimony at trial and is in a superior position to judge the credibility of the witnesses. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). This is true even when the testimony is uncontradicted. See Garrett, 319 Ark. 662, 893 S.W.2d 784; Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992).
Based upon the record before us, we cannot discern what the jury considered when awarding nothing to the estate. Concerning Leo’s funeral expenses and property maintenance costs, perhaps the jury found Robert and Edward had paid them and only they, and not the estate, should have received reimbursement. While other possibilities come to mind, it is sufficient to say that this court has held that it will not engage in speculation on how jury verdicts are reached. Garrett, 319 Ark. 662, 893 S.W.2d 784.
Because we find no reversible error, we affirm.
The estate in this appeal does not question the jury’s assignment of negligence in the amount of thirty-three percent and its failure to account for the remaining sixty-seven percent.
A Phyllis Whitney Avalos was separately denied any damages or award.
While there were fourteen witnesses, the estate abstracted only Moore’s and Virginia Whitney’s testimonies. We also note that the estate limits its argument to the funeral and maintenance damages discussed in this opinion and never refers to other elements of damages. | [
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Robert L. Brown, Justice.
The appellants, Janet Renfro and Brandee L. Hodges, appeal an order granting summary judgment in favor of the appellees, Frederick Earl Adkins, III, Rebecca Adkins, and Juanita Adkins, individually and as executrix of the estate of Frederick Earl Adkins, Jr. They contend that summary judgment was inappropriate because genuine issues of material fact remain to be decided. They further urge that the trial court erred in finding that it did not have personal jurisdiction over Juanita Adkins.
On November 12, 1992, Jerry Adkins was driving a pickup truck that was titled to his deceased father, Frederick Adkins, Jr., when he collided with a car in which Brandee L. Hodges was a passenger. Hodges was seriously injured as a result of the accident. It was later determined that Jerry Adkins was intoxicated at the time of the accident.
Janet Renfro (both individually and on behalf of her daughter, Brandee Hodges) filed a negligence claim against Jerry Adkins. Renfro later amended her complaint to include a negligent entrustment action against Juanita Adkins, who was Jerry Adkins’s stepmother, and sued her in her individual capacity and as executrix of the estate of Frederick Adkins, Jr. Juanita Adkins was sued as an individual because the will of Frederick Adkins, Jr. left the pickup truck to her. Renfro alleged that Juanita Adkins, as a resident of Louisiana, entrusted the pickup truck to Jerry Adkins in Louisiana with knowledge of his past history of reckless operation of automobiles and with knowledge that the vehicle would be driven in Arkansas without liability insurance.
Juanita Adkins answered and moved to dismiss Renfro’s complaint on grounds that the Arkansas trial court lacked personal jurisdiction over her because she resided in Louisiana. She later moved for summary judgment on the negligent entrustment claim and contended that ownership in the vehicle had never vested in her and that ownership of the vehicle had been transferred to Jerry Adkins prior to the accident. She further asserted that there was no evidence that she knew or had reason to know of Jerry Adkins’s driving record.
On July 22, 1992, Renfro filed a second amended complaint. In this complaint, she added allegations of negligent entrustment, tort of outrage, and fraudulent conveyance against Frederick Adkins, III, and Rebecca Adkins, brother and sister of Jerry Adkins. The new allegations were based on a “jailhouse” letter written by Jerry Adkins to his wife, Phyllis. The letter stated that he had “stashed” money with Frederick and Rebecca Adkins.
Frederick and Rebecca Adkins answered the amended complaint and later moved for summary judgment, claiming that the complaint failed to state a cause of action for any of the claims alleged. Attached to their motions were their affidavits and an affidavit by Jerry Adkins. Jerry Adkins’s affidavit stated that the reference that he had “stashed” moneys referred to the disclaimer he had made to his grandmother’s inheritance in the probate of her estate prior to the accident. The money disclaimed went to Frederick and Rebecca Adkins under their grandmother’s will. He further averred that they were the legal owners of the money and that there were no other funds to be transferred. He added that he took possession and ownership of the pickup truck when he went to Louisiana and that neither Frederick nor Rebecca Adkins ever had an interest in it. His brother’s and sister’s affidavits confirmed the sworn statements in Jerry Adkins’s affidavit.
On February 9, 1995, the trial court granted Juanita Adkins’s motion for summary judgment on the negligent entrustment claims. The trial court also granted summary judgment on all the claims asserted against Frederick and Rebecca Adkins. Finally, the trial court granted Juanita Adkins’s motion to dismiss on the grounds of lack of personal jurisdiction. Also on February 9, 1995, Renfro moved to voluntarily dismiss her claims against Jerry Adkins, the remaining party to the lawsuit. The trial court granted the motion and dismissed the action against Jerry Adkins without prejudice.
Although no issue concerning the finality of the order has been raised by the parties, our recent decision in Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996), deserves mention. In Driggers, we distinguished Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), where we held that a voluntary nonsuit of a claim by a party prevented an order which decided the remaining claims of that party from being final for purposes of an appeal. In Driggers, we held that the taking of a voluntary nonsuit with respect to an opposing party, as opposed to a claim, did not adversely affect the finality of an order regarding the remaining parties. As Renfro’s nonsuit in the instant case involved a party rather than a claim, the orders appealed from are final and appealable, and we will address the merits of this appeal.
I. Personal Jurisdiction
Renfro takes issue with the trial court’s finding that it did not have personal jurisdiction over Juanita Adkins, who resides in Louisiana, and we address this matter of jurisdiction first. Renfro claims that the trial court had personal jurisdiction over Adkins pursuant to the long-arm statute, Ark. Code Ann. § 16-4-101 (1987) and pursuant to the Nonresident Motorist Act, Ark. Code Ann. § 16-58-121 (1987). Apparently, service was first had on Juanita Adkins under the long-arm statute. She was later served under the Nonresident Motorist Act. We agree that personal jurisdiction was appropriately obtained against Juanita Adkins under the Nonresident Motorist Act. Thus, we hold that the trial court did have personal jurisdiction over Juanita Adkins, both individually and as executrix of the estate of Frederick Adkins, Jr.
The Nonresident Motorist Act permits service of process on a nonresident owner of a vehicle by designating the Secretary of State as the nonresident owner’s agent for service of process in exchange for the privilege of operating a vehicle owned by the nonresident on Arkansas highways. Since the nonresident owner’s “agent” can be personally served within the state under the Act, the trial court was able to obtain in personam, jurisdiction over Juanita Adkins by service on the Arkansas Secretary of State. See Shaffer v. Heitner, 433 U.S. 186, 202 (1977) (citing Hess v. Pawloski, 274 U.S. 352 (1927)).
At oral argument, counsel for Renfro asserted that service was perfected on the Secretary of State pursuant to the Nonresident Motorist Act, and the record confirms that counsel for Renfro similarly confirmed that fact before the trial court. We note that the record does not contain a return of service as proof that service was accomplished under the Act. However, perfection of service under the Nonresident Motorist Act was never contested by Juanita Adkins. What she does contend is that she was not the owner of the pickup truck at the time of the accident and, thus, the Act does not apply. In a statement signed by her on August 2, 1992, which was before the accident, she refers to the pickup truck which she turned over to Jerry Adkins as “my Ford Truck.” In addition, she concedes in her brief on appeal that an inference could be made that title was in her name, as executrix of the estate, at the time of the accident. In fact, the certificate of title reflects that on November 24, 1992 — 12 days after the accident — she transferred title from her deceased husband’s estate to herself. We are of the opinion that service on Juanita Adkins was proper under the Nonresident Motorist Act, and we reverse the trial court on this point.
II. Summary Judgment
Renfro next claims that the trial court erred in granting summary judgment in favor of each appellee on the issues of negligent entrustment, fraudulent conveyance, and tort of outrage.
This court has summarized its standards for summary judgment review recently:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. V. Catrett, 477 U.S. 317 (1986).
Cash v. Lim, 322 Ark. 359, 360-362, 908 S.W.2d 655, 656-657 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995).
It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). With these standards in mind, we turn to the precise claims upon which summary judgment was rendered.
a. Negligent Entrustment
Renfro contends that the trial court erred in granting summary judgment on the negligent entrustment claims. We have held that proof regarding the following elements is necessary to establish a case of negligent entrustment:
(1) the entrustee was incompetent, inexperienced or reckless;
(2) the entrustor knew or had reason to know of the entrustee’s condition or proclivities;
(3) there was an entrustment of the chattel;
(4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and
(5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant.
Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989).
We first examine the negligent entrustment claim as asserted against Juanita Adkins. Viewing the evidence in the light most favorable to her, there appear to be several genuine issues of material fact. Initially, there is an issue as to who actually owned the pickup truck in question. At the time of the acci dent, the title was still in the name of Jerry Adkins’s deceased father, and Juanita Adkins was the executrix of his estate. The will, however, left the truck to Juanita Adkins. While she maintains that she gave the truck to Jerry Adkins and that title could not be transferred while the estate was still in probate, the title and the will were evidence that the truck was, in fact, still held by the estate and, thus, by Juanita Adkins as executrix at the time of the accident. As previously mentioned, on August 2, 1992, Juanita Adkins signed a document stating that Jerry and Phyllis Adkins have “my permission to use my Ford Truck,” thereby admitting her ownership. Twelve days after the accident she transferred title to the vehicle from the estate to herself. At the very least, a material question of fact remains to be resolved concerning this matter.
Further, a genuine issue of material fact exists on whether Juanita Adkins had any knowledge of Jerry Adkins’s propensity to drive while intoxicated. In her deposition, Juanita Adkins stated that she knew Jerry had been drinking at his father’s funeral, which, of course, occurred before she turned the pickup truck over to him. Also, Phyllis Adkins’s affidavit stated that the entire family, including Juanita Adkins, knew of Jerry Adkins’s history of driving while intoxicated. Juanita Adkins contested this in her own affidavit and stated that she did not know that Jerry Adkins had a history of driving while intoxicated, and her affidavit was corroborated by the affidavits of Frederick Adkins and Rebecca Adkins. But the conflicting affidavits present a patent issue of material fact.
Juanita Adkins cites McDonalds v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987), and urges that this court should not consider the affidavit of Phyllis Adkins because it was merely conclusory. That affidavit read.:
I, Phyllis Adkins, do state under oath, that Juanita Adkins, stepmother of Jerry Eugene Adkins, knew that Jerry Eugene Adkins frequently drove while intoxicated. She also knew that Jerry Eugene Adkins had a large number of traffic tickets, and was an incompetent and reckless driver.
Moreover, his entire family, including his brother and sister, knew of his terrible driving record.
The Eubanks case is distinguishable, however. In that case, the affidavits dealt with an expert’s opinion on the ultimate issue of whether the appellee was negligent, and they failed to include facts in support of the expert’s conclusions. In this case, a lay opinion was offered by Phyllis Adkins regarding her knowledge about what Juanita Adkins knew. Hence, the Adkins affidavit did not require the factual support that the expert opinion in Eubanks did. Finally, the Adkins affidavit is not construed against Renfro as it is not an affidavit in support of a motion for summary judgment; rather, the affidavit must be taken in the light most favorable to her. Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). Thus, a genuine issue of material fact existed, and the trial court erred in granting summary judgment in favor of Juanita Adkins on the negligent entrustment count.
We next address whether the trial court erred in granting summary judgment in favor of Frederick and Rebecca Adkins on the claim of negligent entrustment. Renfro asserts that Frederick and Rebecca Adkins embarked on a course of conduct that permitted Jerry Adkins to secure possession of the vehicle from his stepmother and that they approved his taking possession of the truck from Juanita Adkins and from the estate. We hold the trial court did not err in this regard.
While it is true, as Renfro asserts, that an entrustment need not be made by the owner and can be made through a third person such as an employee or an agent, there is no proof to suggest that either Frederick or Rebecca Adkins was acting as an agent of the estate or of Juanita Adkins. Frederick Adkins gave Jerry Adkins a ride to Louisiana on his way to Florida. He also provided his stepmother with a form so that she could protect herself and the estate from any liability that might arise from Jerry Adkins’s driving of the vehicle. Those actions do not support a negligent entrustment claim against him. Rebecca Adkins did even less. We conclude that there is no evidence that either party “supplied” the truck to Jerry, directly or indirectly, or even exercised any control over it. See Arkansas Bank & Trust, Co. v. Erwin, supra. We affirm the trial court with regard to the claims against Frederick and Rebecca Adkins.
b. Outrage
The next point raised concerns the outrage claim brought against Frederick and Rebecca Adkins but resolved against Renfro on summary judgment. Renfro claims that Frederick Adkins's conduct (1) in transporting Jerry Adkins to Louisiana to pick up the truck, (2) in providing the release form to Juanita Adkins, and (3) his knowledge of Jerry Adkins’s propensity to drive while intoxicated, combined with his effort to fraudulently receive funds from Jerry Adkins, amounted to the tort of outrage.
This court has taken a very narrow view of claims of outrage. See, e.g., Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996); Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)). In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), for example, this court stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct — conduct that is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). In addition, the tort of outrage requires clear-cut proof. Croom v. Younts, supra. Merely describing the conduct as outrageous does not make it so. Ross v. Patterson, supra; Givens v. Hixson, supra.
In the case at hand, the trial court correctly granted the motion for summary judgment on the outrage claim. As already discussed, the negligent entrustment claim against Fred erick Adkins was correctly dismissed. The remaining allegations fall woefully short of supporting a claim of outrage.
c. Fraudulent Transfer
The final point that must be addressed is whether the trial court erred in granting summary judgment in favor of Frederick and Rebecca Adkins on the issue of fraudulent transfer. We need not address this issue because Renfro has voluntarily dismissed Jerry Adkins from the lawsuit. Without a claim that Jerry Adkins made the fraudulent transfer, that is, had some ownership interest in the assets and made the transfer with intent to defraud, we discern no basis for a claim against his brother and sister.
Affirmed in part. Reversed in part and remanded.
Glaze and Corbin, JJ., dissent.
As a result of the accident, Jerry Adkins’s probation for a previous battery conviction was revoked, and he was imprisoned.
This long-arm statute was amended by Act 486 of 1995 to eliminate the basis for jurisdiction argued in this case but was in effect at the time of the accident at issue. Act 486 did not affect Ark. Code Ann. § 16-58-120 (1987).
Renfro in her briefs concentrates on the conduct of Frederick Adkins. She does not argue that the trial court erred in finding that Rebecca Adkins’s conduct did not rise to the level of outrage. We further note that Juanita Adkins answered the outrage claim, though Renfro did not assert that Juanita Adkins committed the tort of outrage in her complaint. | [
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Robert H. Dudley, Justice.
Appellants Natal Eichelberger and Johnny Elam, along with two other young men, destroyed property owned by the Lamar School District, United States Corps of Engineers, Gary Hamilton, and Jack Cline, Sr. The juvenile division of chancery court conducted a bifurcated hearing at which it first adjudged appellants to be delinquents and then determined the amount of restitution they are to make. Before the restitution phase of the hearing began, appellants presented a motion in limine asking that restitution be limited to $2,000 for each victim. The basis for the motion was that the property was destroyed on April 2, 1994, and at that time, restitution could not exceed $2,000 for each victim. Ark. Code Ann. § 9-27-331 (d) (Repl. 1993). The State contested the motion and contended that the amount of allowable restitution was raised to $10,000 by Acts 61 and 62 of 1994. Appellants responded that the 1994 acts became effective on August 26, 1994, or four months after defendants destroyed the property, and that the retroactive application of the 1994 acts would violate the ex post facto provision of the Constitution of the United States. The trial court denied appellants’ motions and ordered them to pay $9,956.47 to one of the victims, Jack Cline, Sr. The trial court ordered appellants to make restitution of less than $2,000 to the Lamar School District, the Corps of Engineers, and Gary Hamilton.
Appellants’ first point of appeal is that the.trial court’s ruling applying the 1994 acts violated the Ex Post Facto Clause. The argument is well taken. Sections 9 and 10 of Article I of the Constitution of the United States prohibit Congress or the States from enacting ex post facto laws. A law is prohibited as ex post facto when it authorizes punishment for a crime because of an act previously done and which was not a crime when done, makes more burdensome the punishment for a crime, after its commission,” or deprives one charged with a crime of any defense that was available according to law at the time when the act was committed. Beazell v. Ohio, 269 U.S. 167, 169-70 (1925) (emphasis added). The retroactive enhancement of a penalty is just as onerous as the retroactive creation of a penalty. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). Several state and federal courts have considered whether restitution is a “penalty” that falls within the Constitutional prohibition of ex post facto laws, and they are unanimous in holding that an increase in the amount of restitution constitutes the increase of a penalty.
In Spielman v. State, 471 A.2d 730 (Md. App. 1984), the Maryland Court of Appeals remanded a case in which the defendants were ordered to pay restitution for malicious destruction of property under a statute passed after the commission of the offense. The statute added insurance companies to the victims that could receive restitution. Id. at 733. The State argued that the statute was procedural and provided “ ‘only for a new method for enforcement of a preexisting right.’ ” Id. The trial court agreed, but that appellate court vacated and remanded the judgment, stating that it viewed the amended statute as “creating a right in [third-party payors] not existing under the previous statute and, therefore, one of substance and not procedure.” Id. In response to the State’s argument that restitution is not punishment, the court said, “It can hardly be contended that one who has been ordered to pay restitution, as a condition of probation, and is subject to revocation of that probation for failure to make payment, has not received punishment.” Id. at 734. The opinion concludes, “Having determined that restitution of these amounts is punishment, it follows that to require the appellants to pay restitution in far greater amounts to the third party payors is to increase that punishment.” Id. at 735.
The Arizona Court of Appeals was confronted with facts comparable to the facts of the case at bar in the case of In the Matter of the Appeal in Maricopa County Juvenile Action No. J-92130, 677 P.2d 943 (Ariz. App. 1984). There, the statute authorized the juvenile court, when committing a delinquent to the Department of Correction, to also impose a monetary assessment and to order restitution. Id. at 944. The offense was committed on July 5, 1983, and the law went into effect on July 27, 1983. Id. The State argued that “in light of the unique procedures involved in the juvenile court setting and particularly, the focus on rehabilitation in the dispositional phase,” restitution is not punitive in nature, but only a part of the State’s scheme of rehabilitation of juveniles. Id. at 945. The court agreed with the State that the ex post facto prohibition only applies to laws dealing with criminal punishment, but held that the rehabilitative focus of juvenile proceedings is not dispositive. Id. at 946. It noted that the United States Supreme Court in Breed v. Jones, 421 U.S. 519 (1975) made applicable in juvenile proceedings “those constitutional guarantees associated with traditional criminal prosecutions,” with the exception of jury trial. Id. It held that it was “too late in the day” to conclude that dispositions for juveniles, which include incarceration, fines, and restitution, “are not to be considered criminal sanctions for the purposes of the ex post facto clause.” Id. The court took note of the fact that sanctions had been increased to permit the imposition of a fine and restitution where they were not previously permissible, and in addition, the conditions of parole had been modified to make payment of the fines and restitution a condition of release. Id. It concluded that this was the type of “legal disadvantage” contemplated by Weaver v. Graham, 450 U.S. 24 (1981), in which the Supreme Court set out the following two-pronged test to determine whether there is an ex post facto violation: (1) The statute must be retrospective, and (2) the statute must disadvantage the offender.
In People v. Slocum, 539 N.W.2d 571 (Mich. App. 1995), the Michigan Court of Appeals held that retroactive application of a statute authorizing the court to order the defendant to pay for extradition costs increased the defendant’s punishment, as it increased the amount of restitution for which he would be responsible, and thereby violated the Ex Post Facto Clause. In State v. Short, 350 S.E.2d 1 (W. Va. 1986), the West Virginia Supreme Court of Appeals held that retroactive application of the Victim Crime Protection Act, which requires the defendant to pay restitution beyond his period of probation, increased his punishment and was an ex post facto application of law. Finally, the Sixth Circuit Court of Appeals in United States v. Streebing, 987 F.2d 368 (6th. Cir. 1993) and in United States v. Jewett, 978 F.2d 248 (6th. Cir. 1992), held that expanded definitions of “victim” in acts passed after the offenses were committed created additional rights and increased applicable penalties, making retroactive application ex post facto.
Acts 61 and 62 of 1994, as applied to appellants, constituted a violation of the Ex Post Facto Clause. The 1994 acts increased the burden of the punishment to the juveniles. The scheme of the statute is punitive, as it allows for revocation of probation if restitution is not paid. See Ark. Code Ann. § 9-27-339(f) (Repl. 1993 & Supp. 1995); compare with In the Matter of the Appeal in Maricopa County Juvenile Action No. J-92130, 677 P.2d at 946. The trial court ordered appellants to pay Jack Cline, Sr., more than $2,000. We have held that the statutory limits apply per victim. Leach v. State, 307 Ark. 201, 819 S.W.2d 1 (1991). Thus, the trial court erred in applying the 1994 acts to appellants and in ordering them to pay in excess of $2,000.00 to Jack Cline, Sr. Accordingly, we reverse and remand the part of the order relating to Jack Cline, Sr.
Appellants next contend that the trial court erred in admitting proof of Gary Hamilton’s damages. The trial court allowed Gary Hamilton to prove his damages with an invoice from a windshield-repair company that was addressed to Hamilton’s insurance agent. It reflected that the glass company would charge the insurance company $511.59 to replace the broken windshield. The invoice was hearsay because it was a written assertion made out of court and offered into evidence to prove the amount of damages. See Ark. R. Evid. 801 and 803; Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The State tacitly recognizes that the ruling was erroneous, but contends that it was harmless.
We have often held that we will not reverse where the evidence erroneously admitted was merely cumulative. See Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995). Here, the State contends that Hamilton testified to the amount of his damages aside from the invoice, and as a result, the invoice was merely cumulative. The record does not support the State’s contention. Gary Hamilton never testified to the amount of his damages. The closest he came to such testimony was when he stated that he did not file a claim with his insurance company because his insurance policy had a $500 deductible provision. However, this did not constitute proof of the amount of the damages, as he would have made that statement if his damages were anywhere between $1.00 and $500. Thus, we must reverse and remand the part of the order relating to restitution to Gary Hamilton.
Appellants next contend that the trial court made an erroneous evidentiary ruling when it allowed the State to introduce an itemized list of damages to prove the amount of restitution for the Corps of Engineers. We need not address the argument in any detail. The itemized statement reflected damages to the Corps of Engineers in the amount of $1,374.70, but in making their hearsay objection, appellants stated, “We would object to anything other than the $382.00.” The trial court ordered appellants to make restitution to the Corps of Engineers in the amount of $382.00. Thus, the ruling allowing the entire itemized statement into evidence did not prejudice appellants.
In their final argument, appellants contend that the trial court erred in refusing to grant their motions for a directed verdict on that part of the bifurcated trial involving restitution. In making the argument, they first contend that the trial court erred in admitting evidence as set out in the first three points of appeal, and they next contend that, when the erroneously admitted evidence is excluded, the remaining evidence is insufficient to support the orders of restitution. The argument is based upon a false premise about appellate review. In determining the sufficiency of evidence, an appellate court reviews all of the evidence introduced at trial, whether correctly or erroneously admitted. Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989). If substantial evidence was presented, but prejudicial trial error occurred, the case is reversed and remanded. If, however, after considering all of the evidence, whether correctly or erroneously admitted, the party having the burden of proof failed to prove its case by the appropriate standard, the case is reversed and dismissed. If the evidence was sufficient, the appellate court considers other assignments of trial error. If it was insufficient, the case is reversed and dismissed and there is no need to consider the other arguments. This is the reason an appellate court routinely first considers sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Affirmed in part; reversed and remanded in part. | [
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Robert H. Dudley, Justice.
Appellant was found guilty of rape and incest. One of the elements the State must prove to sustain a charge of incest is that the accused was sixteen years of age or older at the time of the offense. Ark. Code Ann. § 5-26-202(a) (Repl. 1993). No direct evidence was introduced to establish appellant’s exact age, but there was substantial circumstantial evidence to establish the fact that appellant was sixteen years of age or older. Appellant moved for a directed verdict on the grounds that his age was not proven. The trial court denied the motion. We affirm the ruling.
Appellant contends that the State failed to prove one of the elements of the offense of incest because there was no direct proof that he was sixteen or older, and, consequently, the trial court erred in refusing to grant a directed verdict. Although none of the witnesses were asked to give appellant’s exact age, there was sufficient circumstantial evidence for the jury to conclude, without speculation or conjecture, that appellant was over sixteen years old.
There was direct evidence offered at pretrial to establish that appellant was twenty-eight years old, but this was not offered at trial. However, the jurors saw and observed appellant during the trial. There was additional circumstantial evidence by which the jurors could conclude that appellant was over sixteen years of age when the crime was committed. Susan Hadley, appellant’s wife and the victim’s mother, testified that she and appellant had been married for six years. She testified that she had two children by appellant and that they were four and five years old. She also testified that appellant worked for a manufacturing company during the course of their marriage. The jurors could reasonably conclude from this combination of factors that appellant was sixteen years of age or older at the time he committed the crime. In fact, to conclude otherwise, the jurors would have to have found that he started working for the manufacturing company at age nine, married at age nine, and fathered his children when he was ten and eleven years of age. Jurors are not required to set aside their common knowledge, but have a right to consider all of the evidence in the light of their own observations and experiences in the affairs of life. A.M.I. Crim. 2d 103 (1994).
Circumstantial evidence may provide the basis for a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). The question of whether the evidence excludes any other hypothesis is for the jury to determine. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). We addressed this same issue in Gurley v. State, 179 Ark. 1149,20 S.W.2d 886 (1927). In that case there was no direct proof that the defendant was over the age of sixteen, but a witness testified that he had known the defendant since he was elected sheriff, and the jury was able to observe him and determine that he was over sixteen. We held that the facts supported no reasonable conclusion other than the defendant was over sixteen years of age. The same kind of reasoning is applicable to the case at bar. The trial court correctly denied the motion for a directed verdict, and we affirm the judgment of conviction for the crime of incest.
Appellant’s next point of appeal, which involves sentencing, is well taken. On September 29, 1994, the jury returned its verdict of guilty on both crimes and recommended a sentence of twenty years for the crime of rape and twenty years for the crime of incest. The trial court pronounced, “It is the sentence and judgment of this court that [appellant] be sentenced to the Arkansas Department of Correction for a term of twenty years on each count” and that the court would “take under advisement whether [the sentences would] be run consecutive or concurrent.” The court set bond at $40,000 pending appeal.
Whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Under the provisions of A.R.Cr.P. Rule 36.4, a trial court may pronounce judgment and enter the judgment of conviction immediately after the trial, or the court may postpone sentencing and the entry of the judgment to a later date to be fixed by the court. From the trial court’s comment, it appears that the court intended to postpone sentencing and postpone entry of the judgment until a later date.
On a later date, October 7, 1994, the trial court entered the judgment of conviction. The judgment provides that appellant is sentenced to the Department of Correction for a term of twenty years on each conviction. The trial court made no entry to indicate that the sentences were to run consecutively. Section 5-4-403 of the Arkansas Code Annotated provides that when multiple sentences are imposed the sentences shall run concurrently unless the court orders the sentences to run consecutively. Id. § 5-4-403(a) (Repl. 1993). Thus, on October 7, 1994, a valid judgment of conviction was entered that sentenced appellant to twenty years for each of the felonies, and by operation of law, provided that the sentences were to run concurrently. At this time a final judgment of conviction existed that would bar further prosecution for either of the crimes. On the same day the trial court ruled that appellant was ineligible for bond and ordered him to be held in custody. On October 10, 1994, appellant gave notice of appeal. On October 13, the trial court refused a second motion to allow an appeal bond.
On November 4, 1994, or about a month after the judgment of conviction was entered, the trial court entered a second judgment of conviction. The second judgment provides that the sentences are to run consecutively rather than concurrently. The trial court, in effect, increased the sentences from twenty to forty years. The record does not reflect that there was a motion or a hearing before the second judgment of conviction was entered.
Appellant immediately filed a motion asking the trial court to set aside the second judgment of conviction and requested a hearing on the motion. The hearing was held on December 21, 1994. The trial court refused to set aside the second judgment of conviction and stated that when the sentence was pronounced it took under advisement the question of concurrent or consecutive sentences, and still had not reached a decision when it entered the original judgment. The trial court stated that it entered the original judgment of conviction for the convenience of the sheriff “to start the process of getting the Defendant transferred to the Department of Corrections” and to assist the defendant in making an appeal bond. Finally, the trial court stated that after entry of the judgment of conviction, it decided to run the sentences consecutively instead of concurrently, and therefore entered the second judgment of conviction.
We have often held that a trial court cannot modify or amend an original sentence once it is placed into execution. DeHart v. State, 312 Ark. 323, 325, 849 S.W.2d 497, 499 (1993), and cases cited therein. A sentence is placed into execution when the trial court issues a judgment of conviction or a commitment order unless the court grants appeal bond or specifically delays execution upon other valid grounds. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). Appellant’s appeal bond was revoked at the time the original judgment of conviction was entered, and the trial court did not reserve the issue of consecutive terms in the original judgment of conviction. Thus, the trial court erred in later entering a second judgment of conviction.
In a comparable case, Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984), the appellant, a youthful offender, was convicted of three felonies and sentenced to five years on each felony, with two years suspended, and with the sentences to run concurrently. Appellant later committed three more felonies, and the prosecutor petitioned for revocation of the suspended sentence. The trial court revoked suspension of the remainder of each sentence and ordered the sentences to be served consecutively. We held that the trial court was without power to change the judgment from concurrent to consecutive after the first part of the sentence had been put into execution. In the case at bar, the trial court was likewise without power to enter the second judgment of conviction, and as a result, we set aside the second judgment of conviction.
After appellant’s and appellee’s briefs were filed, appellant filed a pro se petition asking that his attorney be dismissed and another attorney be appointed to represent him in this appeal. He pleads that counsel refused to take his suggestions at trial, has not effectively communicated with him during the appellate process, violated Rules of Professional Conduct, and generally has not rendered effective assistance of counsel.
Appellant has not stated good cause to relieve counsel. The Sixth Amendment right to counsel provides the right to effective assistance of counsel. It does not provide the right to counsel who substitutes the judgment of the accused for his or her professional judgment. See Morris v. Slappy, 461 U. S. 1 (1983). Nor does it provide the right to counsel of the accused’s choice.
The petition does not contain factual allegations that state grounds for a claim of ineffective assistance of counsel. Moreover, such claims are not cognizable on appeal unless specifically raised below, Sumlin v. State, 273 Ark. 185, 616 S.W.2d 372 (1981), and the petition does not allege that ineffective assistance claims were raised below. Thus we deny appellant’s pro se petition for new counsel.
In summary, we affirm the conviction for incest and set aside the second judgment of conviction. The result is that the original judgment of conviction now stands as the judgment of conviction in this case.
Affirmed as modified. | [
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Per Curiam.
A Bill Hatch purportedly appears pro se, but tenders a motion on behalf of appellants Allen Abel and Liberty Real Estate, requesting certain documents be added to the record on appeal. First, we note that Hatch is not a licensed attorney and may not practice law in Arkansas. See Ark. Code Ann. § 16-22-206 (1987); see also All City Glass & Mirror, Inc. v. McGraw Hill Information Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988). Therefore, Hatch may not represent Abel or Liberty Real Estate in this case. Second, the appeal record reflects the original transcript in this case was filed in the court of appeals on September 15, 1994, where appellants were granted at least five extensions to file a brief, the last of which was on November 6, 1995. On December 13, 1995, the court of appeals, giving no reason for doing so, certified this case to our court. Afterwards, on December 18, 1995, Hatch tendered the above motion in this court to supplement the record.
We return this matter to the court of appeals, noting first that Hatch cannot represent appellants Abel and Liberty Real Estate, and we direct the court of appeals to strike any motion(s) filed by Hatch on behalf of others. We also direct the appellate court to have appellants promptly file their briefs in this case and to dismiss appellants’ appeal if they fail to do so.
It is so ordered. | [
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Tom Glaze, Justice.
Appellant Kyle Cherry files this appeal from a trial court decision, denying his Rule 37 post-conviction petition. The trial court held Cherry’s petition was untimely, citing Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992), as controlling.
Procedurally, this case commenced with the state initiating a murder in the first-degree charge against Cherry. On July 14, 1989, Cherry pled guilty, and his conviction and life imprisonment sentence were entered on July 17, 1989. Cherry filed a timely appeal, and this court affirmed Cherry’s conviction on June 11, 1990. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).
On October 9, 1991, or about sixteen months after the Cherry decision, Cherry filed a petition for writ of habeas corpus in federal district court, and alleged he had been denied post-conviction relief in state court because the trial court had failed to inform him such relief was available under the provisions of Ark. R. Crim. P. 36.4. Rule 36.4, in effect when Cherry was convicted, mandated that the trial judge must address a defendant personally and advise the defendant that, if he or she wished to assert ineffective assistance of counsel, the defendant must do so within thirty days from pronouncement and entry of judgment. (Emphasis added.)
Cherry’s assertion in the federal proceeding was undisputed that, when his conviction was entered on July 17, 1989, the state trial court failed to inform Cherry of his post-conviction remedy under Rule 36.4. The magistrate in the federal habeas corpus proceeding dismissed Cherry’s petition on the basis that Cherry had not, as yet, exhausted his state remedies in state trial court. Cherry then filed this state proceeding asking for post-conviction relief under either Rule 36.4 or Ark. R. Crim. P. 37 (which replaced Rule 36.4 on January 1, 1991), and arguing constitutional due process was denied him because he had never been notified of his right to post-conviction relief. We agree.
In denying Cherry’s request for post-conviction relief below, the trial court relied on this court’s per curiam opinion in Fox. There, Fox had pled guilty to murder on March 22, 1990, but, like in our present case, the trial court failed pursuant to Rule 36.4 to inform him that he could assert ineffective assistance of counsel, if he did so within thirty days from entry of his jüdgment of conviction. Seventeen months later, Fox filed a pro se petition for post-conviction relief under new Rule 37, which replaced Rule 36.4, effective January 1, 1991. The trial court chose to consider Fox’s petition because Fox had never been informed of his right to post-conviction relief under Rule 36.4. While this court agreed that the trial court correctly decided Fox should have been informed of his rights under Rule 36.4 and had the opportunity to present his claim, this court further held that Fox (and other defendants like him) still was required to exercise due diligence in filing his petition. The Fox court then stated the following:
It is not an unreasonable restriction on an appellant for post-conviction relief to require that in those instances where a petitioner pleaded guilty while Rule 37 was not in effect and the petitioner was not advised of the provisions of Rule 36.4, petitions under Rule 37 will not be considered timely unless the petition was filed within ninety days of the date of the reinstatement of Rule 37. (Emphasis added.)
Since Rule 37’s effective date was January 1, 1991, the ninety-day period ended on April 1, 1991. Accordingly, the Fox court dismissed Fox’s appeal because he had waited until August 28, 1991, or nearly eight months, before filing his post-conviction petition.
In applying the Fox decision to the facts here, the trial court held Cherry, too, had filed his petition untimely and was procedurally barred. It concluded that, while the trial court had failed to advise Cherry of his post-conviction remedy under Rule 36.4, Cherry still could have sought such a remedy under Rule 37, effective on January 1, 1991. However, like the defendant in Fox, the trial court found Cherry’s request for post-conviction relief was too late, when he filed his Rule 37 proceeding on December 15, 1994, or years after the April 1, 1991 deadline.
Cherry argues several reasons why the Fox decision should not be used to deny him post-conviction relief. First, he reasserts he was indisputably denied post-conviction relief under Rule 36.4, since the trial court failed to advise him of it at trial. Second, while Rule 37 replaced Rule 36.4 effective January 1, 1991, the actual language in that new rule availed Cherry of no remedy. In this connection, Rule 37 only authorized a defendant the right to file a petition (1) within ninety days of the date of entry of judgment or (2) within sixty days of the appellate court’s mandate, if a direct appeal was taken from the judgment. Because Cherry’s conviction was entered on July 17, 1989, and his appeal had ended on June 11, 1990, Cherry submits that his time to file a petition had long since expired when Rule 37 went into effect on January 1, 1991. Third, while this court in Fox interpreted Rule 37 to extend post-conviction relief to some defendants who had been improperly denied relief under Rule 36.4, Cherry had no knowledge of that interpretation until 1992. As noted previously, Rule 37 provided for no retroactive application. Thus, until Fox was decided on June 15, 1992, Cherry says he was simply unaware that the new rule was available to him.
Finally, Cherry cites Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994), which likewise involved a defendant who had not been informed of his post-conviction rights under Rule 36.4 after he pled guilty to crimes in December of 1989, and later had been denied post-conviction relief under Arkansas’s new Rule 37. The Eighth Circuit discussed the Fox decision and whether Rule 37, as embodied in that decision, met adequate due process requirements to foreclose a federal habeas corpus petition. The Easter court answered no, and relied largely on the following passage set out in Ford v. Georgia, 498 U.S. 411 (1991):
[I]t was proper to decline “to apply a state procedural rule . . . because the defendant . . . could not be ‘deemed to have been apprised of its existence.’” Id. at 423, 111 S.Ct. at 857 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488 (1958)). The rule is that “only a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review ... of a federal constitutional claim.” Id. 498 U.S. at 423-24, 111 S.Ct. at 857-58 (citing and quoting from James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 1835-36, 80 L.Ed.2d 346 (1984)). The Court went on to hold that “[t]o apply [a state procedural ruling] retroactively . . . would . . . apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground .... [Such a state] rule, adopted long after petitioner’s trial, cannot bar federal judicial review . . . .” Id. at 424-25, 111 S.Ct. at 858. (If a “rule was not firmly established at the time in question, there is no need to dwell on the further . . . requirement that the state practice have been regularly followed.” Id. at 425, 111 S.Ct. at 858.)
Based upon the foregoing, the Easter court held that, when our court decided in Fox to retroactively grant Rule 37 relief to convicts like Easter, this court was bound to meet Due Process Clause requirements in executing the remedy created. The Eighth Circuit Court then held Easter was entitled to federal court consideration of his petition because Easter could not have known of the state’s rule granting him post-conviction relief or foreseen that such a remedy would be granted him retroactively. Again, we believe the Easter court’s due process analysis is a valid one.
The Easter court’s analysis fell short of deciding that Arkansas’s post-conviction procedures as embodied by Fox were constitutionally infirm, and we think the court again was correct. This court promulgated new Rules 36.4 and 37 because post-conviction remedies were being drawn out extensively and unnecessarily before cases could be concluded. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Rule 36.4, and later new Rule 37, shortened the periods in which convicts could request post-conviction relief. In doing so, this court made every effort to afford convicted defendants due process, but at the same time, put a procedure in place that would offer less opportunity to misuse the federal and state systems to develop legal theories that unnecessarily prolonged meritless cases. Id. We should mention the federal system has done little, if anything, to offer procedures that would dispose of such meritless matters in a more timely manner. In fact, the federal habeas corpus proceedings remain seemingly endless in their treatment of post-conviction matters. In any event, while a few situations have arisen where Rules 36.4 or 37 were not complied with and due process was therefore not extended, those rules have served, and continue to serve, their purpose.
For the reasons set out above, we reverse and remand this cause for a hearing on the merits of Cherry’s petition. In doing so, we overrule the Fox decision to the extent its application denies procedural due process to defendants who had not been timely advised of their post-conviction remedy under Rule 36.4, when that rule was in effect.
Brown, J., dissents.
Cherry also cites another case, Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), for the proposition that, even if Cherry had been advised of his rights under Rule 36.4, he would then have been entitled to appointment of separate counsel. We need not reach that issue here, since he is afforded his post-conviction hearing for other reasons. Nonetheless, we would say that, if Robinson stands for the proposition Cherry offers it, that decision would, in our view, be quite suspect. | [
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Bradley D. Jesson, Chief Justice.
This is a medical malpractice case. Appellants Mary and James Skaggs appeal from a trial court’s order granting summary judgment in favor of appellees, Drs. Philip Johnson and Richard Nix and the Little Rock Orthopedic & Sports Medical Clinic. On appeal, the Skaggses argue that the trial court erred in granting summary judgment and in ruling that expert testimony was necessary to meet their burden of proof. We affirm.
Mary Skaggs was in an automobile accident and suffered a compound fracture of her right leg on September 21, 1992. Approximately one inch of bone was exposed, and the wound was extremely dirty from the accident. Dr. Philip Johnson, an orthopedic surgeon at Little Rock Orthopedic & Sports Medical Clinic (“the Clinic”), performed surgery on Mary’s leg to repair the fracture. A penrose drain tube was placed in her leg to drain any infectious materials from the wound. Three days after the surgery, appellee Dr. Richard Nix, another orthopedic surgeon at the Clinic, was making rounds and pulled the penrose drain tube out of Mary’s leg. He experienced difficulty in removing the drain and believed that a portion of it could have been left inside. Both surgeons decided to leave the piece of tube inside Mary’s leg, as they believed that irrigating and probing the wound further could cause greater potential for infection. Mary was discharged.
Dr. Johnson continued to treat Mary during subsequent visits. On December 22, 1992, early union of the bones in her leg became apparent. One month later, redness and swelling were noted, and Mary was treated with oral antibiotics. On March 15, 1993, Mary underwent surgery, during which a five millimeter piece of penrose drain tube was removed from her leg. Dr. John Schultz, a lung and infectious disease specialist, was consulted to administer antibiotics.
On March 7, 1994, Mary Skaggs and her husband, John Skaggs, filed a complaint against Drs. Johnson and Nix and the Clinic, alleging medical malpractice. They claimed that the doctrine of res ipsa loquitur applied on the basis that the portion of the penrose drain tube left in Mary’s leg was a foreign object within the exclusive control of the defendants. The Skaggses claimed that Mary suffered osteomyelitis, an infection of the bone.
The physicians and the Clinic filed a motion for summary judgment on April 28, 1995. Attached to the motion along with pleadings and medical records were the affidavits of Drs. Johnson, Nix, and Michael Weber, an expert orthopedic surgeon, all of whom refuted the Skaggses’ allegations of negligence and proximate cause. Particularly, Dr. Weber averred that he was aware of the degree of skill and learning ordinarily possessed and used by members in the medical profession in good standing engaged in the practice of orthopedic surgery in Little Rock. Based on his review of the case, it was Dr. Weber’s opinion that Drs. Johnson and Nix used and applied their best judgment with reasonable care. Dr. Weber found no evidence of negligence or proximate causation.
In response, the Skaggses maintained that no expert testimony was necessary. The Skaggses also pointed to the deposition of Dr. Schultz, in which he averred that the piece of penrose drain left in Mary’s leg probably caused her infection and should have been removed. Following a hearing, the trial court granted the appellees’ motion for summary judgment. In making its ruling, the trial court acknowledged Dr. Schultz’s opinion; however, it concluded that, while his opinion was general and based on his opinion as an infectious disease expert, it did not address the surgical decision by an orthopedist. The trial court entered an order dismissing the case, from which the Skaggses now appeal.
Our standards for summary judgment review can be summarized as follows:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995)(other citations omitted). We have recently reviewed the elements necessary to sustain a claim for medical malpractice in Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995):
[T]o sustain a claim for medical malpractice a plaintiff must prove, among other elements, the applicable standard of care and the defendant’s breach thereof. The standard of care applicable to a case is defined by statute as “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 practices or in a similar locality.” Ark. Code Ann. § 16-114-206(a)(1) (1987).
322 Ark. at 611, 911 S.W.2d at 249.
On appeal, the Skaggses continue to assert that no expert testimony was required in this case, as the asserted negligence was within the comprehension of the jury, who could infer that the appellees’ acts or omissions constituted proximate cause of Mary’s damages. They contend that Dr. Schultz’s deposition, in which he averred that the piece of penrose drain left in Mary’s leg probably caused her infection and should have been removed, presented a fact question that was sufficient to survive a motion for summary judgment. The guidelines for determining whether expert testimony is required in a medical malpractice case are as follows:
It is well settled that a plaintiff must present expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence.
Robson v. Tinnin, 322 Ark. at 610-611, 911 S.W.2d. at 249; Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).
The Skaggses further maintain that the Arkansas Court of Appeals’s decision in McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (Ark. App. 1980), is controlling. We disagree. In that case, plaintiffs McClain sued Dr. Giles for medical malpractice, alleging that the surgeon had improperly used a knife during Mrs. McClain’s disc surgery, causing it to break. Dr. Giles made a medical decision to leave the tip in Mrs. McClain’s back rather than risk nerve damage by trying to remove it. A jury trial was waived, and the trial judge ruled that Dr. Giles was not negligent. The McClains appealed on the ground that the decision was clearly against the preponderance of the evidence, and the Court of Appeals affirmed. In so holding, that court neither was presented with nor addressed the issue of whether the case was a “foreign object” case excepting the McClains from the expert testimony requirement.
In this case, Drs. Johnson and Nix made a conscious, medical decision to leave the piece of penrose drain tube in Mary’s leg. As such, this case is distinguishable from a typical foreign object case, as those cases involve the inadvertent leaving of objects in a patient’s body, and do not involve a physician’s judgment. See, e.g., Lanier v. Trammel, 207 Ark. 372, 180 S.W.2d 818 (1944)(matters of common knowledge include a surgeon’s failure to sterilize his instruments prior to operating or to remove a sponge before closing an incision). Therefore, we conclude that this case presented an issue outside the jury’s common knowledge that required expert testimony. See, e.g., Robson v. Tinnin, supra, (matters relating to the changing of dental implants and treatment of fractured teeth were not matters of common knowledge). Our position is supported by caselaw in other jurisdictions. See, e.g., Wagner v. Deborah Heart & Lung Center, 588 A.2d 860 (N.J. Super. 1991)(dismissal proper where plaintiff failed to present expert testimony that a cardiothoracic surgeon deviated from the appropriate standard of care where surgeon made a medical decision to leave needle fragment in patient’s sternum rather than interrupt the closure procedure); Cebula v. Benoit, 652 S.W.2d 304 (Mo. App. 1983)(directed verdict proper where plaintiff failed to present required expert testimony that thoracic surgeon who made a medical decision to leave needle fragment in patient’s chest acted inconsistently with general medical practice); Williams v. Dameron, 246 S.E.2d 586 (N.C. App. 1978)(directed verdict proper where plaintiff failed to prove negligence or causation by expert testimony or otherwise where surgeon exercised medical judgment in knowingly leaving a scalpel tip in plaintiff’s back); Johns Hopkins Hospital v. Genda, 258 A.2d 595 (Md. 1969)(jury verdict reversed where plaintiffs failed to present evidence that surgeons deviated from the applicable standard of care where surgeons made medical decision to leave a broken needle tip in body of plaintiffs’ minor child).
We agree with the trial court’s finding that Dr. Schultz’s opinion was general and based on his experience as an infectious disease expert, and did not address a surgical decision by an orthopedist. Dr. Schultz did not offer testimony that the conduct of Drs. Johnson and Nix fell below the standard of care for orthopedic surgeons in Little Rock. To the contrary, Dr. Schultz stated in his deposition that it was a surgical decision whether Dr. Nix should have gone in and tried to remove the piece of tubing. As in Robson v. Tinnin, supra, the appellees met their burden of proving a prima facie case for summary judgment by showing that the Skaggses had no expert to testify as to the breach of the applicable standard of care. The burden shifted to the Skaggses to show that a disputed issue of fact existed, and their failure to do so excused the need for the physicians to show a lack of proof on the element of proximate causation. Id. at 612. Accordingly, we must affirm the trial court’s order of dismissal.
Affirmed.
Brown, J., not participating. | [
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Tom Glaze, Justice.
Appellant Glen Hinson brought this tort case against appellee Vivian Eaton, alleging Eaton had sold him a 1985 Cadillac as a one-owner car with 68,607 registered miles. After having problems with the car, Hinson checked the car’s chain of title at the Department of Motor Vehicles, and discovered it had at least five previous owners and over 168,000 actual miles. Hinson contacted Eaton to tell her the car’s history and to settle this dispute with her, but Eaton denied any knowledge of the car’s true mileage. Eaton claimed that she told Hinson at the time of the sale that the “guy she bought the Cadillac from told her that it was a one-owner car and these (68,607) were the actual miles.” Hinson stopped his payments to Eaton, and Eaton repossessed the vehicle. Hinson subsequently sued Eaton for (1) federal and state statutory violations in failing to disclose the car’s true mileage, (2) common law fraud and (3) conversion for wrongful possession.
After a bench trial, the trial judge submitted a letter opinion wherein he found no evidence of statutory violations. The judge found Hinson had purchased the 1985 Cadillac “as is,” Eaton had quoted the prior owner when she told Hinson the car was a “one-owner,” and Eaton was never shown to be linked to the bogus odometer information contained on the car’s title documents. Based upon these findings, the trial judge dismissed Hinson’s suit. In an effort to have the trial judge rule on Hinson’s fraud and conversion theories of recovery, Hinson filed a motion for new trial and an alternative motion to amend the trial court’s findings. Although a hearing was held on these motions, the judge took the motion under submission but failed to rule on them. After Hinson’s motions were deemed denied under Ark. R. App. R 4(c), Hinson filed this timely appeal.
Hinson’s first argument questions the trial court’s reading of the federal and state laws concerning odometer disclosure requirements, and the trial court’s requiring scienter or “evil motive” as prerequisite to finding a violation of those laws. Hinson contends that these odometer disclosure laws impose liability on a seller or transferor of a car who makes an affirmative rep resentation regarding the mileage of a motor vehicle without verifying the accuracy of that representation.
The state and federal statutes in issue here are Ark. Code Ann. § 4-90-206(a) (Repl. 1991) and 15 U.S.C. § 1988(a) 0repealed by Public L. 103-272 § 7(b) July 5, 1994, 108 State. 1379) which read in pertinent part as follows:
§ 4-90-206(a). No person shall transfer a motor vehicle without disclosing in writing to the transferee the true mileage registered on the odometer reading or that the actual mileage is unknown if the odometer reading is known by the transferor to be different from the true mileage.
15 U.S.C. § 1988(a). A transferor of ownership in a vehicle shall disclose to the transferee either (1) the cumulative mileage registered on the odometer or (2) that the actual mileage is unknown, if the reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.
From reading the above statutes, if Eaton had known the odometer reading on the 1985 Cadillac was different from the number of miles the vehicle actually traveled, she was required to disclose in writing either the true mileage or that the mileage is unknown. The legal issue arises, however, whether Eaton must meet disclosure requirements if she had constructive rather than actual knowledge that the Cadillac’s odometer mileage reading was wrong.
Here, the evidence is undisputed that, when Eaton sold the car to Hinson, she possessed a title document which reflected on its face that the car’s odometer reading was 31,504 and not the 68,000 plus mileage showing on the car’s odometer. The car title’s issuance date and owner’s information also conflicted with Eaton’s date of purchase and possession of the car. Hinson urges that these discrepancies put Eaton on notice that the mileage on the Cadillac’s odometer may not be accurate, and thus, she had the duty to disclose the car’s true mileage to Hinson or inform him the actual mileage is unknown.
In Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993), this court dealt with a transferor’s liability under the federal odometer disclosure law, 15 U.S.C. § 1988(a). There, Junior C. Landis had purchased a truck from Walt Bennett Ford, but several years afterwards, Landis defaulted on his payments, and voluntarily returned the truck to Bennett Ford. Bennett Ford later sold the truck to Richard Smith, and certified the truck’s mileage to be 45,890. Smith later experienced problems with the truck, and while having his truck checked by J. A. Riggs Tractor Company, he learned that Riggs Tractor had previously repaired that truck when its odometer read 84,272. Afterwards, Smith brought suit against Bennett Ford, alleging Bennett Ford had violated 15 U.S.C. § 1988 of the Federal Odometer Fraud Act, and alternatively common law fraud. On appeal, this court upheld the trial court’s ruling denying Bennett Ford’s motion for directed verdict, and in doing so, this court held actual knowledge on a transferor’s part is not a requirement under the Federal Odometer Fraud Act and that constructive knowledge or reckless disregard is sufficient.
This court’s holding in Smith is consistent with Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979), where the Fourth Circuit Court of Appeals, in construing 15 U.S.C. § 1988, recognized constructive knowledge, recklessness, or even gross negligence in determining and disclosing the actual mileage traveled by a vehicle were sufficient to support a finding of intent to defraud under the statute. See also Nieto v. Pence, 578 F.2d 640 (4th Cir. 1978) (transferor who lacks actual knowledge that odometer reading is incorrect may still have a duty to state that actual mileage is unknown, and seller had duty to disclose that actual mileage was unknown where, in exercise of reasonable care, he would have had reason to know that mileage was more than that which odometer had recorded or previous owner had certified).
In Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989), this court had an opportunity to consider Arkansas’s odometer disclosure law, § 4-90-206(a)(1987). There, Currier sold a 1984 Datsun 300ZX as a one-owner car to Rod Spencer. Spencer later discovered the Datson had been wrecked and the rear one-third of the vehicle had been replaced with that of another car. Spencer stopped his car payments, Currier filed suit for damages and Spencer counterclaimed, alleging breach of warranties and a failure to provide an odometer disclosure statement required under § 4-90-206(a). The Currier court upheld the trial court’s decision that Currier had an affirmative duty to inform Spencer that the odometer reading on the Datsun did not reflect the car’s actual mileage, since it showed only the mileage for the front two-thirds of the vehicle.
When considering the foregoing case law, we must conclude that the trial court gave too restrictive an interpretation of § 4-90-206(a) and 15 U.S.C. § 1988 in suggesting Eaton’s liability depended upon her actual knowledge. The trial court incorrectly determined that Eaton had to be linked to the actual bogus transaction, causing the false mileage to be placed on the Cadillac’s title and leading to the misrepresentation of the mileage appearing on the car’s odometer. Nor could Eaton avoid her duty and liability under these laws merely by quoting a prior owner’s remarks that the miles on the car were actual. Eaton acknowledged that, had she closely examined the car’s title which she possessed when selling the car to Hinson, she would have realized the discrepancy in the miles appearing on the title and the number of miles she knew were on the car. If Eaton had constructive knowledge that the odometer reading was different from the miles the vehicle actually traveled or she exercised reckless disregard in determining and disclosing false mileage information, Eaton is subject to liability under the above statutory provisions. Because the trial judge erred in assuming the federal and state provisions required Eaton’s actual knowledge or involvement in these matters, we must reverse and remand this cause for further proceedings.
We must also touch on Hinson’s argument that the trial court erred in failing to hold in his favor on his common law misrepresentation theory. Hinson cites Grendall v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), for the proposition that one who makes statements which are known to be false, or, else not knowing their verity, asserts them to be true, and upon which someone else relies to his detriment, has committed misrepresentation and is liable for damages incurred as a result of those misrepresentations. Here, Hinson points out that, when Eaton represented the Cadillac as a one-owner car with 68,000 plus actual miles on it, she did not know the verity of that representation. At the least, our review of the record reflects fact issues exist on this misrepresentation count and need to be addressed at the retrial of this cause.
Finally, we mention Hinson’s claim for conversion and the trial court’s failure to reach or decide this issue. At trial, Hinson argued Eaton’s repossession was an act of conversion, since Hinson was current on his payments. On appeal, however, he argues conversion occurred because Eaton never retained a security interest in the vehicle. We simply dispose of this issue based on the settled rule that a party may not change his argument on appeal. See Dotson v. Madison County, 311 Ark. 395, 844 S.W.2d 371 (1993).
For the reasons above, we reverse and remand.
New statutes concerning odometers were enacted July 5,1994, and are found at 49 U.S.C. §§ 32701-32711. Because 15 U.S.C. §§ 1981-1989 were in effect at the time Hinson’s cause of action arose, we apply those statutory requirements in the present case.
Landis actually purchased fifteen trucks from Bennett Ford, but only one of the trucks figured in the dispute which resulted in the Smith decision. | [
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Tom Glaze, Justice.
Appellant Jim Allred had been hired by the appellee Department of Correction School District as a certified teacher for the 1993-1994 school year. In a letter dated April 1,1994, the district’s supervisor of education services, Hurshell Qualls, informed Allred that Qualls intended to recommend to the Board that Allred be placed on “a year’s (sic) leave or longer without pay beginning next school year.” Qualls referred to Allred’s excessive absenteeism and his failure to provide a doctor’s statement regarding his illness. Allred received Qualls’s letter on April 6. On April 21, Allred provided his principal, Jack Broach, with the required doctor’s statement. On April 28, 1994, the Board met and placed Allred on an indefinite leave of absence without pay because of 75.5 days of absenteeism.
On June 13, 1994, Allred filed a petition for writ of mandamus and complaint in circuit court, and amended it on August 22. Alleging denial of his constitutional due process rights and violation of the Teacher Fair Dismissal Act (TFDA), Allred requested a writ of mandamus to compel the Department to renew his teaching contract, and to declare that his contract was automatically renewed under the TFDA and that the Board’s action was constitutionally void. Allred requested reinstatement and damages for breach of contract.
The Department filed a motion to dismiss Allred’s amended petition and complaint for failure to state a claim upon which relief could be granted. The Department claimed the Department’s school district is not a public school district and subject to the requirements of the TFDA, and Allred does not possess a property right in his employment which would afford him due process rights.
By order entered March 23, 1995, the trial court dismissed Allred’s complaint pursuant to Ark. R. Civ. P. 12(b)(6). Allred appeals only the trial court’s dismissal of his TFDA claim.
The Teacher Fair Dismissal Act of 1983, as amended, governs the dismissal of teachers within the state’s public school system. Ark. Code Ann. §§ 6-17-1501—1510 (Repl. 1993). The term “teacher” is defined as any person, other than a superintendent or assistant superintendent, employed in an Arkansas “public school district,” who is required to hold a state teaching certificate as a condition of employment. § 6-17-1502(a)(l). See also Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). Under § 6-17-1506(a), every contract between a teacher and the school board shall be automatically renewed for the next school year unless the teacher is notified of nonrenewal by May 1 of the contract year. Arkansas law requires school districts to strictly comply with the notice provisions of the TFDA. § 6-17-1503.
Here, no dispute exists between the parties that Allred was required to have a state teaching certificate in order to be employed as a teacher with the Department. The question on appeal is whether the Department of Correction school district is part of the state’s public school system and subject to the requirements of the TFDA.
The Department’s school district was established by Act 279 of 1973, which is codified as amended at Ark. Code Ann. §§ 12-29-301—310 (1987 and Supp. 1993). The district was created to provide elementary, secondary, and vocational and technical education to all persons incarcerated in the Department’s facilities who are not high school graduates, irrespective of age. § 12-29-301 (b). The Board of Correction acts as the school board for the district. § 12-29-301(c). Section 12-29-303 provides as follows:
The schools established under the provisions of this subchapter and those persons incarcerated who attend the schools shall be entitled to all of the privileges provided generally to common public schools and adult education programs administered by the State Board of Education to students who attend them under the laws of the State of Arkansas, provided the privileges do not conflict with the rules, regulations, and policies of the Department of Correction or the laws of the state respecting the establishment and operation of the Department of Correction.
(Emphasis added).
Allred argues that the Department’s district is part of the state’s public school system, and his dismissal as a teacher with the Department is subject to the TFDA. Allred bases his argument on the following: (1) the General Assembly expressly recognizes the district as a public school district; (2) the General Assembly distinguishes only between public and private school districts; and (3) the district is subject to the standards for accreditation of public schools.
First, Allred cites several statutes and emergency clauses that make reference to the Department’s “school district.” Specifically, Allred cites § 12-29-301 as quoted above, and the emergency clause to Act 671 of 1989 which amended Act 279 establishing the Department’s school district. The emergency clause of Act 671 reads in pertinent part as follows:
It is hereby found and determined by the General Assembly that confusion has arisen concerning the funding of the public school program operated in the Department of Correction; that it is necessary to clarify that funds generated from various programs within the department may be utilized in support of the public school district within the department^.]
(Emphasis added). Allred argues the emergency clause clarifies the district’s classification as a public school district, and statutory rules of construction allow the use of an act’s emergency clause in determining the intent of the legislature. Farm Bureau Mutual Ins. Co. v. Wright, 285 Ark. 228, 686 S.W.2d 778 (1985).
Further, Allred cites Ark. Code Ann. § 6-13-101 (Repl. 1993) where the General Assembly provided as follows:
(a) There shall be only one (1) kind of school district in this state, and each shall have the same prerogatives, powers, duties, and privileges as herein set forth.
(b) All school districts which may be hereafter created shall be the same kind, with the same prerogatives, powers, duties, and privileges as provided by law.
Allred contends the General Assembly has authorized only the creation of one type of school district and that type is a “public school district.”
The Department responds that true public schools are those elementary and secondary schools operated by school districts which receive both federal, state, and local funds for the benefit of children in grades kindergarten through twelve. See § 6-13-902(1). The Department contends its school district is an entirely different sort of school. First, the Department notes that children who live within the geographic confines of the Department’s school district cannot attend the Department’s school because it is limited to those incarcerated within the Department. Further, the Department claims board members of true public school districts are elected; whereas, the correction board members serve as the district’s school board and those members are appointed by the Governor, rather than elected. See Ark. Code Ann. § 6-13-604 et seq. (Repl. 1993).
Second, Allred argues the only reason the General Assembly used the phrase “public school district” in the TFDA is to distinguish it from a private school district. Allred cites §6-18-702(a) which requires all children to be immunized before admission “to a public or private school.” Allred also contends that public refers to school districts which receive public funds and the Department’s district receives public funds. Allred cites other statutes where the General Assembly addresses “public and private schools.” See § 6-16-105(b) (a flag shall be displayed at every public and private school).
The Department counters Allred’s second argument by stating its district is not required to meet the education standards required by the Quality Education Act of 1983 (QEA), §§ 6-15-201 et seq.; and thus, it cannot be a true public school district. Further, the Department points out that its district cannot be dissolved or annexed with another school district or lose public aid if it does not comply with the QEA, as other districts can be sanctioned.
In reply, Allred contends the Department is not completely exempt from the QEA as it claims, and cites § 12-29-304(b) which reads as follows:
In view of the role, duties, and responsibilities of the Department of Correction as a penal and correctional institution, the inability of the Department of Correction School District to meet the full requirements of the rules and regulations of the quality education standards promulgated by the State Board of Education pursuant to §§ 6-15-201— 6-15-212, and other laws and regulations of the state pertaining to quality education standards shall, in no way, penalize or jeopardize the state grants and aids for public school districts as authorized in this subchapter.
(Emphasis added). Allred contends the General Assembly recognized the special differences between common public school districts and the Department’s district, and argues, if the Department’s district is not a public school district, no need existed for the General Assembly to create the special exemption in § 12-29-304(b).
Third and finally, Allred argues the Department’s district is a public school district because it is subject to the same standards for accreditation for public schools as cited above in § 12-29-304(b). Further, Allred points out the Department is like other public school districts, in that it is authorized to provide vocational and high school education for students under 21 years and over 21 years of age. See § 6-16-308.
In reviewing a trial court’s decision on a motion to dismiss, this court treats the facts alleged in the complaint as true and views them in a light most favorable to the plaintiff. Forehand v. First Bank of Ark., 315 Ark. 282, 867 S.W.2d 431 (1993). It is improper for the trial court to look beyond the complaint to decide a motion to dismiss. Id. All reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be reasonably construed. Id. Here, the question is one of law which requires statutory interpretation.
We agree with Allred. As § 6-13-101 provides, there shall be only one kind of school district in this state. That single kind of district is supported by public funds, and hence a public school district is established.
While the Department’s school district is certainly different from other public school districts, it is clear from reading Ark. Code Ann. §§ 12-29-301—310 (1987 and Supp. 1993), and emergency clauses of associated acts that the General Assembly intended to establish a public school district within the Department of Correction for the benefit of both the free and the incarcerated populations. The emergency clause of Act 279 of 1973 reads in pertinent part as follows:
The General Assembly finds that there is an immediate need for the institution of basic education for inmates of the Department of Correction, to the end that the said inmates may improve their minds and characters and become less likely to commit further crimes.
Further, public funds support the district — federal funds and state funds from the departments of education and correction. § 12-29-304(a). While the special role, duties, and responsibilities of the Department of Correction are first and foremost those of maintaining a correctional institution, the General Assembly has created a public school district within the institution for rehabilitative purposes. As other school districts, the Department is authorized to offer both general education and vocational education experiences for its student population. The fact that the Department’s students are awarded a GED or receive vocation-technical training does not negate the Department’s responsibility to operate under the law as a publicly supported school district.
In line with our review of the controlling statutes above, we hold the Department’s district is a public school district as a matter of law. As a public school district, the Department is subject to requirements of the Teacher Fair Dismissal Act. Because Allred was employed with the Department’s school district as a teacher and was required to have a state teaching certificate as prerequisite to employment, Allred was a teacher within the meaning of the TFDA. See Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). Allred’s amended complaint, if taken as true, establishes a cause of action against the Department for violation of the TFDA. The trial court was wrong to dismiss the complaint under Rule 12(b)(6).
On remand, the trial court should determine whether Qualls’s letter of April 1, 1994, gave Allred sufficient notice under the TFDA that his contract for the 1994-1995 school year would not be recommended for renewal. For the reasons above, we reverse and remand.
We note there is no constitutional or statutory authority for establishment of private school districts. | [
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David Newbern, Justice.
Patrick Haltiwanger was convicted of two counts of aggravated robbery and sentenced to two consecutive terms of imprisonment for 30 years resulting from the robberies of two convenience stores. He contends the evidence was insufficient. He also contends the Trial Court erred in refusing to allow him to introduce in evidence video tapes portraying robberies by others of convenience stores to show that some other person was committing robberies in a manner similar to the ones charged against him and that person might have committed the offenses with which he was charged. Neither point has been preserved for appeal. The motion for a directed verdict was not sufficiently specific, and the video tapes were not proffered. We affirm the conviction.
On June 10, 1994, at approximately 9:50 p.m., a man entered the Shell Git-N-Go in Pine Bluff, pulled a pistol, and told the Clerk, John Ridgeway, “Give me the money. Give me the money now.” Mr. Ridgeway opened the cash register and told the robber, “There it is. Take what you want.” The man took the money and left.
Just after midnight on June 11, 1994, a man entered the Jr. Food Mart on Cherry Street in Pine Bluff and asked the cashier, Larry Woodcock, for a pack of cigarettes. After Mr. Woodcock got the cigarettes, the man pulled a pistol and said “Give me all the money.” Mr. Woodcock complied with the request, and the robber said “Give me more.” Mr. Woodcock gave the robber a box of food stamps and checks, -and the robber left.
Mr. Ridgeway and Mr. Woodcock viewed a photographic lineup. Mr. Ridgeway identified Mr. Haltiwanger from the photos. Mr. Woodcock was not able, at that time, to identify Mr. Haltiwanger. Mr. Haltiwanger was arrested. Then Ricky Shine, a patron at the store where Mr. Woodcock worked, who had been present when the robbery occurred, was shown the photographic lineup and identified Mr. Haltiwanger as the robber of the Jr. Food Mart.
Prior to trial, Mr. Haltiwanger moved to admit video tapes showing similar robberies of other convenience stores which occurred after his arrest and during his incarceration. The Trial Court denied the motion on the ground that the videotapes were irrelevant.
At trial, Mr. Ridgeway stated he was less than four feet from the perpetrator during the crime, the lighting was bright, and he was face-to-face with the perpetrator for two to four minutes. He then identified Mr. Haltiwanger as the man who had robbed the Git-N-Go. Mr. Woodcock testified that, based on his recollection from the crime, he recognized Mr. Haltiwanger as the man who had robbed the Jr. Food Mart. According to Mr. Woodcock, he could clearly see the perpetrator’s face for about 30 seconds. Mr. Shine stated he was popping popcorn in the store when the robbery occurred and that Mr. Haltiwanger came in, pulled a gun, and demanded money. He testified he had known Mr. Haltiwanger for four years prior to the robbery.
At the close of the State’s case, counsel for Mr. Haltiwanger approached the bench and said “I’d like to have the appropriate opportunity to let [the] record reflect that I made a motion for directed verdict.” The Court denied the motion. At the close of all the evidence and outside the hearing of the jury the Court said, “I need the record to reflect that the Defendant did at the close of the State’s case move the court for a directed verdict which the court denied. The motion was again renewed at the conclusion of the Defendant’s case. Both those motions were made at a side-bar conference, and they are now being put on the record and outside the hearing of the jury.”
The jury was then instructed and returned a verdict of guilty on each count.
1. Sufficiency of the evidence
The sufficiency of the evidence is challenged by a motion for directed verdict. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994); Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). A challenge to the sufficiency of the evidence requires the moving party to apprise the Trial Court of the specific basis on which the motion is made. Stewart v. State, supra; Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Neither in the original motion nor in the evidence that it was renewed is there any indication that any specific deficiency in the evidence was called to the Trial Court’s attention. We decline to consider the point further.
2. The video tapes
Mr. Haltiwanger contends the Trial Court should have allowed him to present the videotapes because they tended to prove another person committed the crimes of which he was accused. No proffer of the tapes was made.
To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the Trial Court’s decision, unless the substance of the evidence is apparent from the context. A.R.E. Rule 103(a)(2); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995); Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). We would have to know a good deal more about the video tapes in order to review the Trial Court’s determination that they were irrelevant. Absent the proffer, we have no means of determining if prejudice occurred. The failure to proffer evidence so that the appellate court can make that determination precludes review of the issue on appeal. See Roe v. State, 310 Ark. 490, 837 S.W.2d 474 (1992).
Affirmed. | [
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Bradley D. Jesson, Chief Justice.
This appeal is taken from the trial court’s denial of the appellant’s motion to prosecute her lawsuit under the pseudonym “Jane Doe.” We hold that the court’s ruling is not a final, appealable order. Therefore, the appeal is dismissed.
The appellant visited the Oakwood Family Medical Center on March 9, 1992, where she was examined by Michael Ramone, D.O. The Center purportedly was operated by Union Pacific Railroad Company, the Missouri Pacific Employees Health Association and the Association Trust. According to her complaint, the appellant was touched in an improper and sexually suggestive manner during the course of the examination.
On March 4, 1994, the appellant filed suit against the appellees seeking damages for negligence, medical malpractice, outrage and invasion of privacy. The caption to her complaint contained the name “Jane Doe” as plaintiff, but listed all defendants by name. The appellant’s true identity was furnished to the appellees under separate cover.
The appellees objected to the appellant’s use of the pseudonym and moved to dismiss the case. The appellant asked the court for leave to conceal her identity, citing the sensitive, private nature of the allegations in the complaint. The court denied the motion and gave the appellant ten days to file an amended complaint in her own name. The appellant filed a subsequent motion which incorporated a letter opinion from her psychologist. The letter stated that the appellant had been traumatized by the incident and suffered various emotional problems as a result. The trial court reviewed the letter and considered the appellant’s motion in light of a number of federal court cases on the subject. See, e.g., Doe v. Frank, 951 F.2d 320 (11th Cir. 1992). The court then denied the motion, and entered an order finding that the appellant had not shown that the information to be disclosed was of the utmost privacy. The following language, attempting to certify the case for appeal, was also contained in the order:
The Plaintiff’s Motion for Certification for Appeal is granted. This court’s order with respect to the issue of the Plaintiff’s Motion for Leave to File Under Seal is final because the disclosure of the PlaintifFs identity would divest her of a substantial right and it would be beyond the power of this court to place her in her former condition. There is no just reason to delay appeal of this issue and a potential injustice would be alleviated by an immediate appeal.
The appellant argues first that the trial court’s order is appealable because it complies with ARCP Rule 54(b). That rule allows interlocutory appeals under certain circumstances, but those circumstances are not present here. By its express language, Rule 54(b) pertains to orders in which fewer that all claims or fewer than all parties are disposed of. The order in this case involves a ruling on a preliminary legal issue. It does not dispose of one of several claims or one of several parties.
Rather than analyze the appealability of the trial court’s order under Rule 54(b), we refer to Rule 2 of the Arkansas Rules of Appellate Procedure. That rule contains a list of the types of orders from which an appeal may be taken. We note at the outset that Rule 2 does not expressly allow an appeal from a ruling which denies a party the right to prosecute her case in anonymity. What might be termed the general rule regarding appealability is stated in ARAP Rule 2(a)(2):
(a) An appeal may be taken from a circuit, chancery or probate court to the Arkansas Supreme Court from:
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action.
We have interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. The order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Certainly the court’s order in this case did not dismiss the parties from the court or conclude their rights to the subject matter in controversy. The court’s ruling was on a preliminary matter, unconnected with the merits of the litigation. The order cannot be considered as ending a separable branch of the litigation.
The appellant urges us to employ an exception to Rule 2 as we have done in the cases of Omni Farms, Inc. v. Arkansas Power & Light Co., 271 Ark. 61, 607 S.W.2d 363 (1980) and Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). In Omni Farms, the trial court entered an order approving condemnation of the appellant’s land. The order would have allowed AP&L to begin immediate construction on the land, even though the issue of the amount of compensation remained to be decided. In Gipson, church members brought suit to obtain financial data from the church management. The trial court entered a discovery order which had the effect of requiring the church to turn over much of the requested information. We allowed appeals in both instances, stating in Omni Farms:
At the oral argument counsel for A.P.&L. conceded that if construction is allowed to proceed, it will be impossible in the event of a reversal for Omni’s land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition.
In both of the above-cited cases, the trial court’s ruling, while technically interlocutory in nature, had the practical effect of a final ruling on the merits of the case. That is not the situation here. This case is more analogous to Scheland v. Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993), in which the trial court rendered a decision on an important issue but did not, from a practical standpoint, conclude the merits of the case. Scheland involved an order requiring the appellant in a paternity action to undergo a blood test. We held that, while the issue might be an important one, an appeal was premature.
Finally, the appellant urges us to adopt an amendment of Rule 2 to allow this type of interlocutory appeal. We took this approach in the cases of Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982) and Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). In Herron, we declared that an order disqualifying counsel would be made appealable by amendment to Rule 2. In Nesheim, we did the same for an order certifying a case as a class action. However, the considerations which were present in those cases do not exist here. If a party’s counsel is disqualified, the litigant is deprived of the counsel of his choice, must pursue his lawsuit with other counsel, and, if the trial court’s order is later reversed, is entitled to start again with his original counsel. Similarly, if a class action, ordinarily a complicated and lengthy process, is allowed to proceed to its conclusion before being reviewed on appeal, the parties have again gone through a useless process in the event of reversal. In this case, there is nothing to indicate that the appellant would not or could not prosecute her action in the absence of anonymity. We should also point out that she had the option to allow the issue to be decided on the appellees’ motion to dismiss. Had the motion to dismiss been granted, a final order would have been in existence. The only showing before this court at this time is that it would be emotionally difficult for the appellant to pursue her lawsuit in her own name and that she would prefer not to do so. There is no showing, as there was in Herron and Nesheim, that burdensome and meaningless litigation would result in the absence of an appeal.
We hold that the appeal is premature and dismiss without prejudice to raise this issue upon the entry of a final order.
Appeal dismissed.
Corbin, Brown, and Roaf, JJ., dissent. | [
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Tom Glaze, Justice.
The state brings this appeal pursuant to A.R.Cr.P. 36.10(b-c), contending that it has inspected the trial record and is satisfied that the state has suffered prejudicial error and that the correct and uniform administration of the criminal law requires this court’s review. Rule 36.10 is jurisdictional and mandatory, and as this court has said on numerous occasions, the state has no right to appeal beyond that conferred by the constitution or rules of criminal procedure. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). As a matter of practice, the court has only taken appeals which are narrow in scope and involve the interpretation of the law. Id. at 521, 838 S.W.2d at 358. We decline the state’s request for review here, since we fail to see how the correct and uniform administration of the criminal law is required or affected.
On May 9, 1994, appellants Bobby Banks and Willie Butler were seen in a 1977 brown and beige Grand Prix near Little Rock Central High. Butler was driving and Banks was a passenger. Banks leaned out of the passenger car window and over the top of the car when he fired a weapon at a house at 1223 Dennison Street. Banks and Butler were later identified, arrested and, on June 22, 1994, were charged with class B felony offenses — unauthorized use of another person’s property to facilitate certain crimes under Ark. Code Ann. § 5-74-105(a)(l) (Repl. 1993) and second degree unlawful discharge of a firearm from a vehicle under Ark. Code Ann. § 5-74-107(b)(l) (Repl. 1993). These state offenses are a part of Arkansas’s Criminal Gang, Organization, or Enterprise Act.
Both Banks and Butler were also charged with having violated federal offenses under the Gun-Free School Zones Act, which includes a provision making it unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm at a place that the person knows is a school zone. 18 U.S.C.A. § 922(q)(3)(A) (Supp. 1995). On September 19, 1994, Banks pled guilty in federal court to one count of aiding and abetting in the discharge of a firearm in a school zone under § 922(q)(3)(A), and on October 17, 1994, Butler pled guilty to one count of misprision of felony under 18 U.S.C.A. § 4 (1969). In essence, misprision of felony is the failure of an individual having knowledge of the actual commission of a federal offense to report this information to federal authorities.
After entering guilty pleas to the federal offenses, Banks and Butler filed motions to dismiss in the state criminal proceeding and argued double jeopardy barred further prosecution. They contended that Ark. Code Ann. § 5-1-114 (1987) protected them against multiple prosecution in different jurisdictions for the same conduct. In sum, Banks’s and Butler’s argument was that the Arkansas felony offenses of unauthorized use of another person’s property to facilitate certain crimes and second degree unlawful discharge of a firearm from a vehicle are the “same offense” as the federal criminal offenses of discharging a firearm at a place known to be a school zone and misprision of felony. The state trial court agreed and granted their motions to dismiss.
The state seeks this appeal and submits the two state felony offenses are not the “same offense” as the federal ones because each state offense requires proof of an element that the federal offenses do not. The state further asserts the Arkansas felony offenses are intended to combat a societal evil that is substantially different from the one the federal offenses are intended to combat. See § 5-1-114(1)(A).
Most of the state’s argument depends on a comparison of the elements contained in the pertinent state criminal offenses with those in the federal criminal Gun-Free School Zones Act, particularly § 922(q) of that Act. The state concedes, however, the Supreme Court has held that, in making it a federal offense under § 922(q) for any individual knowingly to possess a firearm at a place that individual knows or has reasonable cause to believe is a school zone, Congress exceeded its constitutional authority under the Commerce Clause. U. S. v. Lopez, 115 S.Ct. 1624 (1995); see also 18 U.S.C.A. § 922(q)(2)(A). That being so, the state further concedes, as it must, provision § 922(q)(3)(A) in issue in this case is undoubtedly unconstitutional and will not survive a future constitutional challenge. Because § 922(q) of the federal act has been held to have exceeded Congress’s constitutional authority, we have no reasonable expectation that another case like the one before us will arise again. Certainly the state offense involving our interpretation of § § 5-74-105(a)(l) and -107(b)(1) will not come into issue in the same manner. Consequently, we conclude that Arkansas’s correct and uniform administration of the criminal law is not in issue.
In sum, while this court has allowed the state a Rule 36.10(b-c) appeal where a substantial question of former jeopardy existed when federal and state offenses and proceedings were involved, State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990), we find no substantia] question here since the situation here (or one similar) is unlikely to recur. See also Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979). Instead, because § 922(q) has been declared unconstitutional, the only statutory interpretation with which we are primarily left concerns § 5-1-114 and how it is viewed under the controlling cases of Block-burger v. United States, 284 U.S. 299 (1932), and United States v. Dixon, 113 S.Ct. 2849 (1993). We do not render advisory interpretation of laws, which is what exists here once it is concluded that the federal law in issue is deemed unconstitutional.
In conclusion, we mention that the federal criminal statute regarding misprision of felony is still in effect and a double jeopardy comparision of it to the state felony offenses against Butler may have lent some importance for a Rule 36.10(b-c) review, but that issue was not argued by the prosecutor below. The trial court, state and defense counsel limited their arguments to comparing Banks’s and Butler’s state offenses to the federal charges filed under the Gun-Free School Zones Act, specifically § 922(q)(3)(A). Because the prosecutor failed to include the federal misprision of felony offense as a part of his double jeopardy argument, we could not consider it even if a Rule 36.10 appeal were granted.
For the reasons above, we dismiss the state’s appeal. | [
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Tom Glaze, Justice.
In this appeal, appellant James Swink, Jr., contends the trial court erred in granting the Ernst & Young accounting firm’s ARCP Rule 12(b)(6) motion to dismiss Swink’s complaint. On February 2, 1994, Swink, Jr., brought this suit individually, but his allegations and request for damages were based upon a 1985 contract between Swink & Company, Inc., and Ernst & Young. Under that contract, Ernst & Young agreed to examine, report, review, and submit annual financial statements, schedules, audits, and federal and state income tax returns in accordance with generally accepted auditing standards and SEC requirements. Although not named as a party in the contract, Swink, Jr., asserted that, as management head of Swink, Inc.’s municipal bond department, he suffered compensatory losses as a result of an inaccurate audit submitted by Ernst & Young for the year ending December 31, 1988. Swink, Jr., further alleged his personal damages were caused by Ernst & Young’s breach of contract, negligence and misrepresentation. Swink, Jr., alternatively alleged he was a third-party beneficiary of Swink, Inc.’s contract with Ernst & Young, and was entitled to damages under this status as well.
Based upon Rule 12(b)(6), Ernst & Young moved to dismiss Swink, Jr.’s, complaint, and the trial court granted the motion with prejudice. In doing so, the trial court stated that, under Arkansas law, Ark. Code Ann. § 16-114-302 (Supp. 1993), an accountant is not liable to persons not in privity of contract with the accountant except in cases where fraud or intentional misrepresentation is shown. The trial court concluded Swink, Jr.’s, complaint and accompanying exhibits reflected that his request for personal damages should fail because no privity existed between him and Ernst & Young. The trial court also held that § 16-114-302 precluded Swink, Jr.’s negligence and third-party beneficiary claims. And finally, it decided Swink, Jr.’s misrepresentation claim was barred by Arkansas’s three-year statute of limitation. The trial court found Swink, Jr. either knew or should have known of any misrepresentation made by Ernst & Young as early as 1989, yet waited five years to file suit.
We first address Swink, Jr.’s argument that § 16-114-302 does not preclude his claims against Ernst & Young. That statute reads as follows:
No person, partnership, or corporation licensed or authorized to practice under the Public Accountancy Act of 1975, § 17-12-101 et seq., or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by such person, partnership, or corporation, except for:
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:
(A) Identifies in writing to the client those persons who are intended to rely on the services, and
(B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement,
then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with such person, partnership, or corporation.
It is undisputed that Swink, Jr.’s name does not appear in the original contract between Swink, Inc., and Ernst & Young; nor was Swink, Jr., actually named in any subsequent audit documents and reports. However, he points out that two audit reports submitted by Ernst & Young reflect they were intended for the SEC, and Swink, Inc., and its “management.” As a management head in Swink, Inc., Swink, Jr., claims he was in privity of contract with Ernst & Young, and therefore not barred by the terms of § 16-114-302. Swink, Jr.’s argument is meritless.
First, privity of contract is defined as that connection or relationship which exists between two or more contract ing parties. Black’s Law Dictionary 5th Ed., page 1079. Swink, Jr., was not one of the contracting parties, and in that respect, he clearly was not in privity of contract with Ernst & Young.
Nonetheless, Swink, Jr., claims that under Arkansas law contracts made for the benefit of a third party are actionable by that party, and so long as Swink, Jr., is identified as one of the class for whose benefit the Ernst & Young/Swink, Inc., agreement was made, he succeeds to the benefits or rights intended under that agreement.
Swink, Jr., relies in part on the case of H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955), where contractor Deal & Co. entered into an agreement with the United States of America to construct a government facility. Under that contract, Deal and its subcontractors were required to pay all laborers and mechanics based upon a set rate. Fifteen laborers and mechanics brought suit under the agreement, alleging Deal and another contractor had failed to pay at the prescribed rate. The Deal court first noted its earlier decision of H. B. Deal & Co., Inc. v. Marlin Judge, 209 Ark. 967, 193 S.W.2d 315 (1946), where it held the compensation and pay-rate provision in the construction contract was placed there for the benefit of the laborers and mechanics who were entitled to maintain an action thereon as third-party beneficiaries. The Deal court then concluded that it was not essential that the plaintiffs (laborer or mechanic) be named in the contract or his identity be ascertained at the time the contract is made, so long as he was one of the class for whose benefit the contract is made. H. B. Deal & Co., 225 Ark. at 582, 283 S.W.2d at 858.
The contract before us now stands in sharp contrast to the one in Deal. While Ernst & Young plainly contracted to bring to management’s attention opportunities for economies in or improved controls over Swink, Inc.’s operations, the Swink, Inc./Ernst & Young contract and its use of the term “management” in no way reflects an intent that Swink, Jr., would personally benefit from the parties’ agreement.
Swink, Jr.’s third-party beneficiary argument also conflicts with the provision and terms contained in § 16-114-302. While it can generally be said that an accountant may be liable to a contracting client for any breach of contract in the rendering of professional services, § 16-114-302 proscribes extension of that liability to persons not in privity of contract. Section 16-114-302 provides only two exceptions: (1) where an accountant is shown to have committed fraud or an intentional misrepresentation or (2) if the accountant was aware that a primary intent of the contracting client was to benefit or influence the person who later brings suit against the accountant. To extend liability in this second instance, the accountant must have (1) identified in writing those persons who are intended to rely on the services, and (2) sent a copy of that writing or statement to those identified persons. § 16-114-302(2).
Here, Ernst & Young indisputably never identified Swink, Jr., in writing, or otherwise, as a person who was intended to rely on the accounting firm’s services. Nor did Swink, Jr., allege in his complaint that Ernst & Young sent him a copy of a statement announcing such intent. Because Swink, Jr., was not in privity of contract with the Ernst & Young/Swink, Inc. agreement, and did not qualify as a third-party beneficiary or fall within a contract exception under § 16-114-302(2), we must affirm the trial court’s ruling on this first point.
We next consider Swink, Jr.’s argument that the trial court erred in ruling Swink, Jr.’s misrepresentation claim is barred by the three-year statute of limitations. He contends that the statute of limitations commenced from the date he discovered or should have discovered Ernst & Young’s fraud or misrepresentation, but the complaint does not reflect that date. He asserts it is error for a trial court to grant a motion to dismiss because of a statute of limitations when facts not in the record must be developed.
Swink, Jr., is mistaken in stating the limitations statute began when he discovered (or should have discovered) Ernst & Young’s purported misrepresentation. Arkansas follows the rule that the limitations period in professional malpractice cases begins to run when the wrongful acts occur, not when they are discovered. See Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989). This court has also held that, as to fraud or misrepresentation, mere ignorance of one’s rights does not prevent the running of the statute of limitations or laches, unless such ignorance is due to fraudulent concealment or mis representation on the part of those invoking the benefit of the statute. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Here, Swink, Jr., did not allege any concealment on Ernst & Young’s part, and since the alleged misrepresentations of Ernst & Young occurred in its 1989 reports, the trial court correctly ruled the applicable three-year statute of limitations barred Swink, Jr.’s claim filed in 1994.
Finally, Swink, Jr., argues that, even if we uphold the trial court’s rulings on the foregoing points, the trial court still erred by dismissing Swink, Jr.’s complaint with prejudice. We agree.
This court has repeatedly held that, when a trial court dismisses a complaint for failure to state facts upon which relief can be granted under A.R.C.P. Rule 12(b)(6), the dismissal is without prejudice. Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Spires v. Members of the Election Comm’n, 302 Ark. 407, 790 S.W.2d 167 (1990); Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The plaintiffs then have the election either to plead further or to appeal. Id.
Ernst & Young suggests Swink, Jr., should have requested the trial court to remove the “with prejudice” language, since he could have easily done so when he had the trial court delete a sentence from its original order. Swink, Jr., on the other hand, contends the trial court’s dismissal order with prejudice precluded his right to plead further and left him with only his option to appeal. He further asserts no authority exists that required him to ask the trial court’s order be modified or corrected before deciding to appeal. Swink, Jr., is correct. We see no significant difference here from the situation in Hubbard, supra. In Hubbard, the trial court dismissed the plaintiff’s complaint with prejudice under Rule 12(b)(6). This court pointed out when a trial court takes any action under Rule 12, the trial court is to notify the attorneys of that action, and if appropriate the court will designate a certain number of days in which the party is to be given to plead further. Hubbard v. Shores Group, Inc., 313 Ark. at 504; see ARCP Rule 12(j). Like in Hubbard, the trial court did not offer Swink, Jr., the opportunity to plead further, therefore we modify the dismissal to one without prejudice and remand.
Arthur Young and Co. originally entered into this contract, but later that firm merged with another company and became known as Ernst & Young.
Swink, Jr., also alleged breach of fiduciary relationship, but abandoned that claim at the trial level.
Swink, Jr., chose not to raise on appeal the lower court’s ruling on his negligence claim.
We note Ernst & Young also argues Swink, Jr.’s contract claims sound primarily in tort and therefore are barred by the three-year statute of limitations. Apparently the trial court initially ruled to this effect but later deleted that ruling from its final order. Ernst & Young did not cross appeal on this point, and we choose not to consider this withdrawn ruling as yet another reason to affirm, especially since the abstract reflects the primary argument below focused on § 16-114-302 and the privity of contract issue. | [
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David Newbern, Justice.
50-Off Stores, Inc. (50-Off), operates a retail store in which Cynthia Almond slipped, fell, and was injured. 50-Off is the named insured in a policy issued by Cigna Property and Casualty Insurance Company (Cigna). Coverage “A” of the policy insures 50-Off against liability claims resulting from its negligence. Coverage “C” reads, in part, as follows:
a. We will pay the medical expenses as described below for “bodily injury” caused by an accident:
(1) On premises you own or rent;
* * *
b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance.
* % *
Ms. Almond sued 50-Off in Monroe Circuit Court and recovered a judgment in the amount of $6,060. She also filed a claim with Cigna under coverage “C.” In response to the latter claim, Cigna paid Ms. Almond $1,328.25. Ms. Almond brought this action in Pulaski Circuit Court directly against Cigna, claiming her medical payments were in excess of the $5,000 policy limit under coverage “C” and thus Cigna owed her more than the amount paid. She argued she had standing to sue Cigna because she was a third party beneficiary of the insurance contract between 50-Off and Cigna.
The Trial Court entered summary judgment in Cigna’s favor, ruling that Ms. Almond was no more than an incidental beneficiary of the policy. Among its responses to Ms. Almond’s claim, Cigna pointed out to the Trial Court that the Monroe County judgment and all of Ms. Almond’s medical bills resulting from the accident had been paid, and that Ms. Almond was seeking to recover twice for the same claim. We agree that even if Ms. Almond has standing as a third party beneficiary, an issue we do not decide today, she may not have a double recovery, so we affirm the summary judgment in favor of Cigna.
A copy of the Monroe County judgment appears in the record in this case. While it is unsigned and not file-marked, Ms. Almond stipulates in her abstract that the judgment was entered. The judgment does not spell out the damage elements for which the $6,060 was awarded, but in a brief to the Trial Court in the case now before us, Cigna discussed the judgment entered against 50-Off in Monroe County and asserted, “Plaintiff’s medical bills have been fully and finally satisfied.” Nothing of record shows that Ms. Almond denied that assertion or responded to it.
In its brief submitted to us, Cigna states:
Yet, Almond has already been compensated for the reasonable and necessary medical expenses that a Monroe County jury found to have been proximately caused by the accident in its rendition of a verdict in the amount of $6,060. ... It is undisputed that this amount has been paid to Almond and satisfied by Cigna under the liability portion of the policy.... Yet Almond is now asking this Court to give her the opportunity to seek a double recovery.
In her reply brief, Ms. Almond does not contest that statement but says that Cigna is not entitled to a “set off’ of the amount it has paid absent language in the insurance contract or a statutory provision allowing it.
We see a distinction between the set off or recoupment concept and that of double recovery. A set off may be had when a defendant has a claim against the plaintiff which does not arise out of the transaction which is the subject of the plaintiff’s claim against the defendant. If the claim of the defendant arises from the same transaction, it may be called a recoupment. We discussed those concepts in Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). See Ark. Code Ann. § 16-63-206 (1987). In this case, Cigna is not asserting a claim independently against Ms. Almond; it is defending on the double recovery principle, and Ms. Almond makes no response.
There are some instances in which, as a means of imposing a penalty, double, even treble, recoveries are permitted. See Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1991), and Dillon v. Resolution Trust Corp., 306 Ark. 173, 811 S.W.2d 765 (1991) (awarding double the amount of interest which was charged in violation of the Constitution’s usury provision). See also Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991) and Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988) (trebling damages in tort actions for trespass). This case is not one of them, and we have often expressed our general disapproval of allowing a claimant to recover more than once for the same injury. See, e.g., Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). We have expressed that principle in cases involving recoveries from insurance companies in dealing with an insurer’s right to subrogation. See, e.g., Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 215, 870 S.W.2d 748 (1994); Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992).
The record and briefs in this case leave us with no doubt that Ms. Almond’s claim for medical payments under coverage “C” would, if honored, result in a double recovery. We have been cited to no law which would require or permit us to ignore the general policy of declining to allow such a recovery. If we were to do as Ms. Almond requests and hold that she had a right to the payments as a third party beneficiary it would, in these circumstances, amount to no more than an advisory opinion. We do not render advisory opinions. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).
While we do not reach the point on which the Trial Court decided this case, we may affirm for a different reason, West v. G.D. Scarle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993), and we do so in this case.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant Durrell Childress and Everett Foreman decided to rob Henry Callanen, an off-duty policeman, while he was transporting money to a bank. Foreman, who formerly worked at the McDonald’s Restaurant on West Roosevelt in Little Rock, knew that the restaurant closed at midnight on Fridays, knew that it was customary for the restaurant manager to hand Officer Callanen deposit bags containing the day’s receipts, knew that the off-duty policeman would then take the bags to his car and drive to the bank. Appellant possessed a pistol.
Just before midnight on a Friday night, appellant and Foreman got in Foreman’s car, drove to the area of the restaurant, parked away from the restaurant, got out, skulked close to the restaurant, hid behind a menu board and some shrubs that are located in a drive-through area adjoining the parking lot, and waited for the off-duty officer to take the deposit bags to his car. Three people in a nearby house saw them and sensed what was about to happen. One phoned the restaurant to give warning. As the phone rang, Anthony Brown, the assistant manager of the restaurant, was handing the deposit bags containing $2,700 to Officer Henry Callanen and setting the alarm system for closing.
Carla Jackson was in a car on the parking lot and saw Officer Callanen come out of the restaurant with the bags and walk toward his car. She saw someone in the drive-through area and heard a shot just as Callanen was approaching his car. She looked up again, saw a person standing close to Officer Callanen, and heard someone say “drop it.” She heard two more shots.
Appellant told his friend Tenora Riles that he and Foreman went to the restaurant to commit the robbery and told the officer to “drop the money,” but instead the officer fired his pistol. He said that he then started running and threw away his pistol.
Later that night appellant gave his girlfriend Lottie Sims a jacket that had the word “Raiders” emblazoned on it. It was identical to a jacket that witnesses said was worn by one of the robbers. Sims said that appellant told her he wanted money to buy a car and to support his new child.
Appellant gave three additional incriminating statements; the first was non-custodial, and the next two were custodial. In the third of these statements, he admitted all the details of the crime. Appellant and Foreman were jointly charged, but tried separately. In this case, appellant was found guilty of capital murder and aggravated robbery and was sentenced to life imprisonment without parole for the capital murder. We affirm the judgment of conviction.
The evidence of guilt was overwhelming, and appellant does not question the sufficiency of the evidence. Rather, he raises eight points of appeal involving both pre-trial and trial rulings. We categorize the points into five parts.
I.
Appellant’s first point of appeal involves the police transcription of his first in-custodial statement. In Callaway v. State, 258 Ark. 352, 524 S.W.2d 617 (1975), we said the issue of undue emphasis in transcriptions had never before been pre sented to us, but the issue was procedurally barred in that case. Two years later, in Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977), we decided the issue. We cited the cases that reflected a division among courts, and held that a police transcription of a recorded statement was admissible (1) when it was shown to be accurate and (2) when it would have been necessary to replay the recording for the jurors several times had the transcription not been used. We did not hold that those two occasions were the only times a police transcription might be admissible. They may be admissible on other occasions, such as when the recording includes inadmissible materials and it would be best to delete the inadmissible materials from a written transcript rather than from the recording. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held that an accused must be supplied a copy of a police transcription of a confession and the original tape so that they could be compared. In Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993), we held that a trial court had discretion to determine if a transcription was accurate and we would not reverse a finding of accuracy absent an abuse of discretion.
In Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987), the taped statement was inaudible in part and the police transcription so provided. We upheld its admission because the trial judge gave a cautionary instruction that the police transcription was to be used only as an aid in understanding the recording.
Here, appellant did not object to the use of police transcriptions of the two incriminating statements. Rather, he only objected to the use of certain parts of the transcript of the first statement. His objection was that, in places, the transcript reflects that at the time Officer Callanen came out of the restaurant, appellant said to Foreman, “Now man, now.” Appellant contended the transcript should reflect that he said, “Naw man, naw,” and he proffered a transcript so stating. He also proffered a transcript reflecting that part of the statement was “unintelligible.” Two detectives testified that the tape and the transcript were both accurate. Appellant testified that the transcript was in error and the officers misunderstood him. The trial court listened to the recording, concluded that the police transcription was correct, and allowed the jurors to use it as a guide while they heard the recording of the actual statement. The trial court stated that appellant could argue to the jury that the transcript was in error.
The issue is one of authenticity. Rule 901 of the Arkansas Rules of Evidence governs authenticity and provides that authenticity may be determined by a trial court by comparing an authenticated item with a copy. The trial judge heard the testimony and compared the transcript with the taped statement and made his finding. Appellant offers nothing on appeal other than his testimony and the tape to show that the trial court abused its discretion in admitting the transcript. We cannot say that the trial court abused its discretion in weighing the evidence presented.
In Harvey, 292 Ark. at 271, 729 S.W.2d at 408, we said that we have reservations about admitting police transcripts into evidence. We still have that concern, and in that vein we note that Rule 901 provides for proof when, as here, there are characteristics of speech or dialect that might be misunderstood. Here the trial court had nothing but the testimony of the detectives, the testimony of appellant, and the tape. There is no proof indicating whether a characteristic of ethnic speech or the dialectic pronunciation of a word might show that the detectives and the transcript were in error.
In addition to comparing the tape to the transcript, the trial court gave the following cautionary instruction to the jury:
I need to instruct you, ladies and gentlemen — we’re about to play an audio tape, as you well know. I’m instructing you that in the case of any variation that you might perceive between the audio tape and the typed transcript that we’re going to let you read, you’re to be guided by the tapes themselves, you understand, of what you hear and not by the transcript that you’re going to be handed to read.
Moreover, appellant argued to the jury that the transcript was in error. Under these conditions, even if the trial court’s ruling had been in error, it is doubtful that appellant would have been able to show prejudice. See Leavy, 314 Ark. at 235, 862 S.W.2d at 833.
II.
Detective Joe Oberle of the Little Rock Police Department testified that he went to appellant’s mother’s home to search for the weapon that was used to kill Officer Callanen. In the presence of Oberle, Ms. Childress phoned appellant, who was in the Living Hope Institute, a division of Doctors Hospital in Little Rock, and asked what he had done. Detective Oberle testified that Ms. Childress said, “Why didn’t you tell me?” and then instructed appellant to get on the phone and tell Oberle what he needed to know. Oberle took the phone, identified himself as a policeman, and asked, “What’s up?” Appellant told him that Foreman shot Callanen. Oberle asked about the pistol, and appellant responded that he did not know where it was. This conversation took place about 1:00, and appellant’s first custodial statement took place at about 3:00 that same afternoon.
Appellant argues on appeal that the two subsequent custodial statements should have been suppressed because Detective Oberle did not give him a Miranda warning on the phone, and the two custodial statements were the result of his telephone statement to Detective Oberle; thus, they were “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963).
The State did not attempt to introduce the voluntary non-custodial, but unwarned, incriminating statement by appellant, and on that we make no comment. We address only the point argued.
In Oregon v. Elstad, 470 U.S. 298 (1985), the Court addressed this issue, and we paraphrase the opinion as it applies to the case before us. The “fruit of the poisonous tree” doctrine assumes the existence of a constitutional violation. Violations of the Fourth Amendment’s prohibition against unreasonable search or seizure are constitutional violations. Thus, when there is a Fourth Amendment violation, and a subsequent confession, it should be excluded unless intervening events break the causal connection between the Fourth Amendment violation and the confession so that the confession is “sufficiently an act of free will to purge the primary taint.” Taylor v. Alabama, 457 U.S. 687, 690 (1982) (quoting Brown v. Illinois, 422 U.S. 590, 602 (1975)).
In the case before us there is no allegation of a Fourth Amendment violation. Rather, the allegation is that appellant was not given a Miranda warning before he gave the initial non-custodial statement and that this tainted the two later custodial statements. The Self-Incrimination Clause of the Fifth Amendment does not proscribe voluntary confessions. “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” United-States v. Washington, 431 U.S. 181, 187 (1977). In Miranda, the Court presumed that interrogation in custodial circumstances is inherently coercive and statements made under those circumstances are inadmissible unless the suspect is told of his Miranda rights and intelligently decides to forego those rights. New York v. Quarles, 467 U.S. 649, 654 (1984); see also Miranda v. Arizona, 384 U.S. 436 (1966). However, the Miranda rights are “not themselves rights protected by the Constitution but instead measures to insure that the right against compulsory self-incrimination [is] protected.” Michigan v. Tucker, 417 U.S. 433, 444 (1974). Thus, a procedural Miranda violation is not necessarily a violation of the Constitution, and the “fruits” doctrine may not be applicable. Based on the foregoing, the Court in Oregon v. Elstad held that the Self-Incrimination Clause of the Fifth Amendment does not require the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary, but unwarned, admission from the suspect. The same reasoning is fully applicable to the case at bar.
III.
Appellant’s third point of appeal involves a ruling the trial court made during the direct testimony of Ronnie Smith, one of the officers who took appellant’s two custodial statements. On direct examination in the State’s case-in-chief, a deputy prosecutor asked Smith the reason the detectives took a second statement from appellant. Smith replied that after taking the first custodial statement they took the statement of appellant’s co-defendant, Foreman, and they came to the conclusion that appellant had been less than forthright in his first statement. Appellant objected and moved for a mistrial as follows: “Here’s now the inference that there’s other evidence that’s being held from this jury because we cannot play Mr. Foreman’s statement to this jury. I’ll move for a mistrial.” The trial court denied the motion for a mistrial. Shortly afterwards, appellant moved for “some type of admonishment to the jury.” The trial court denied the motion.
On appeal, appellant contends that the trial court’s evidentiary ruling was in error because the comment about the co-defendant’s statement denied his Sixth Amendment right to confront the co-defendant, and the testimony that appellant was not forthright constituted an impermissible comment on the evidence. The arguments are procedurally barred. Appellant’s objection was to the “inference” that evidence was being withheld from the jury. An objection that there was an “inference” that evidence was being withheld neither raised nor embraced a denial of confrontation or the Sixth Amendment argument. The trial court was never apprised of the Sixth Amendment argument or a comment on the evidence argument, and we will not consider alleged errors that were not brought to the attention of the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).
IV.
Later, during the presentation of appellant’s case, a bench conference was held. The State objected to the proposed testimony of some of appellant’s witnesses. The trial court apparently realized that extensive argument was to be made and stated to the jury: “We’ve got to take a recess here while we discuss some evidence that may or may not be coming in the case, so we’re going to take a short recess.” Appellant objected and contended that the statement constituted a comment on the evidence. On appeal, he again contends that the statement constituted a comment on the credibility of the witnesses.
The only way to determine the real meaning or true import of any isolated remark is to consider the place in the trial and the context in which it was made. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). Here, the remark was made after a bench conference and the trial court realized the arguments would be more fittingly heard in chambers. The context of the remark informed the jurors that they could take a short recess, the reason they could have the recess, and did not specifically refer to any testimony or intimate that any witness was credible or not credible. It was not a comment upon the evidence.
The cases cited by appellant are factually distinguishable. In McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944), the trial judge said that to grant the appellant’s motion to question a witness “would be just silly.” In West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), the trial judge asked witnesses how much they had been paid to come up with some information. In both cases this court held that these remarks could only have the effect of prejudicing the appellants in front of the jury. Here there is no such showing.
V.
Appellant’s next four points of appeal involve evidentiary rulings.
A.
One of these four points concerns a ruling during cross-examination of appellant about a red bandanna and gang activity. Prior to trial, appellant filed a motion asking that there be no mention at trial of the fact that he was a member of a gang. The deputy prosecutor replied that the confession contained a reference to appellant’s gang activity and the statement was admissible. The trial court agreed, but cautioned the deputy prosecutor not to mention such activity “unless there’s some reason that involves the trial.”
Testimony in the State’s case-in-chief established that a red bandanna was found near the crime scene. After the State rested appellant took the witness stand and, on direct examination, stated that Foreman had a red bandanna tied around his neck at the time Foreman shot the officer. His counsel asked him to explain the red bandanna, and appellant replied, “Well, you know, like I said before, I used to be a ‘Blood’ [gang member]. You know, he had his bandanna [gang symbol] on.” On cross-examination, a deputy prosecutor questioned appellant about the red bandanna found at the crime scene and asked appellant if he was a “Blood.” Appellant’s objection to relevance was overruled. Appellant replied that he formerly was a member of the “Bloods.” The deputy prosecutor then asked appellant if he carried a red bandanna in his pocket. Appellant’s objection to relevancy was overruled.
Appellant testified on direct that the red bandanna found at the crime scene was not his, but rather belonged to Everett Foreman. He raised the issue of the red bandanna’s ownership; thus, he could not complain about the prosecutor’s cross-examination of him on that issue. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). A party cannot complain about that for which he is responsible. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990).
As a subpoint of this assignment, appellant additionally argues that the State was attempting to impeach him with prior criminal acts, see A.R.E. Rule 404(b). However, this argument was not made to the trial court, as his objection was to “this mentioning of gangs.” It is well settled that a party cannot change argument on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Even in cases such as this where the sentence is life without parole, our duty is only to examine the record for error on objections decided adversely to appellant, not to address arguments that might have been made. See Ark. Sup. Ct. Rule 4-3(h).
B.
Appellant’s next point involving an evidentiary ruling came about as follows. Titonia Butler testified that she knew Officer Callanen, lived near the McDonald’s restaurant, saw the robbers hiding, sensed what was about to happen, saw the robbery, heard the shots, called an ambulance, went to the restaurant, and saw Officer Callanen lying on the parking lot. She gave a statement to the police soon after they arrived. At trial, on cross-examination, she admitted that her testimony was inconsistent with part of her statement given the night of the murder. On redirect, she attempted to explain the inconsistencies by testifying that she was in shock after witnessing the murder. The deputy prosecutor asked how she felt seeing Officer Callanen, someone she knew and liked, lying on the ground. Appellant objected on the basis of relevance. The trial court overruled the objection.
The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters that have been weakened, confused, or obscured by cross-examination, and to rebut the discrediting effect of any damaging statements or admissions or to correct any wrong impression that may have been created. Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991). A trial judge may exercise discretion in allowing the party to evoke on redirect examination some matter which is relevant to his case or defense and which through oversight he has failed to elicit on direct. Easter, 306 Ark. at 455, 815 S.W.2d at 926; see also John William Strong, McCormick on Evidence § 32 at 108 (4th ed. 1991). A skillful re-examiner, then, may “draw out the sting of lethal cross-examination” by eliciting a reply on direct which explains matters of impeachment of the cross-examiner. Strong, supra, at 108-09. Here, prosecutor’s question on redirect was designed to give the witness the opportunity to explain the reason she was upset and under stress when she gave her initial statement. The testimony was relevant to an assessment of her credibility as a witness. Credibility is a fact of consequence to the determination of an action under A.R.E. Rule 401.
C.
Tracy Brooks, co-defendant Everett Foreman’s girlfriend, gave a statement to police in which she said that appellant planned the robbery and Foreman shot Officer Callanen. She said that she heard appellant talk about robbing McDonald’s on several occasions.
Ms. Brooks later avoided service of a subpoena and was so evasive that the trial court found it necessary to cite her for contempt. Ultimately she was brought into court on a forthwith subpoena. She unsuccessfully sought to invoke the Fifth Amendment. Subsequently the State granted her immunity, but still she refused to testify.
Judy Rudd, an attorney who independently contracts with the State of Arkansas to handle civil commitments for the Public Defender’s office, privately represented Ms. Brooks and advised her to take the Fifth Amendment. Appellant contends there was an inherent conflict of interest in allowing Ms. Rudd to represent Ms. Brooks, because his attorney was employed by the same Public Defender’s office.
In Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court acknowledged there is a possibility that prejudice will result when partners represent co-defendants, and the risk is increased when the two lawyers cooperate with one another in the planning and conduct of trial strategy, although this does not justify an inflexible rule that presumes prejudice in all cases. Id. at 783. The test for prejudice is whether the attorneys “actively represented conflicting interests.” Id. In Burger, the Court said that it had in the past “assumed without deciding” that two law partners were considered one attorney. Id.; see also Holloway v. Arkansas, 435 Ark. 475, 482 (1978).
Here, Ms. Rudd and appellant’s attorney actively represented conflicting interests. Therefore, the question is whether Ms. Rudd and appellant’s attorney should be considered to have a relationship comparable to being “partners.” The trial court held an extensive hearing on the issue and made a finding of fact that they were not in such a relationship.
A helpful definition of the word law “firm” is contained in the comment to Model Rules of Professional Conduct 1.10. This rule deals with imputed disqualification of lawyers in the same firm who represent adverse interests. The comment provides that the term “firm” includes a legal services organization such as the one involved in this case. However, it goes on to say:
Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other should depend on . . . the specific facts of the situation.
Comment to Model Rules of Professional Conduct 1.10.
Here, there was testimony that Ms. Rudd and appellant’s attorney were employed in different units of the Public Defender’s office. Ms. Rudd handles civil commitment cases, and she testified that she did not have access to any of the other files or to any other information about the criminal cases. Her supervisor, Bill Simpson, testified that she was not involved in criminal cases, but that she was employed only to handle civil commitments. Ms. Rudd’s representation of Ms. Brooks was in her private practice, and she was not paid by the Public Defender’s office to represent Ms. Brooks. Given these specific facts, we cannot say the trial court’s finding of fact was clearly erroneous.
D.
Appellant next contends that the trial court erred in refusing to grant a mistrial because of the trial court’s cumulative error. We have stated that we will “entertain an argument of cumulative error in rare and egregious cases.” Vick v. State, 314 Ark. 618, 617, 863 S.W.2d 820 (1993). We have reversed only when the cumulative effect of the errors committed denied the defendant a fair trial. See Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993) (finding that net effect of “overly zealous” comments by prosecutor, unsupported by evidence, combined to taint jury’s decision); Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986) (reversing when there were twenty-eight objections by appellant to leading questions, appellee was repeatedly admonished by trial judge and objections sustained but appellee’s conduct not stopped); Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978) (reversing when cumulative errors, omissions, and deficiencies in warrant were sufficient to undermine court’s confidence in it). There was no combination of errors in this case that deprived appellant of a fair trial.
An examination of the transcript has been made in compliance with Rule 4-3(h) of the Rules of the Supreme Court, ánd there is no reversible error on any other ruling adverse to appellant.
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Robert L. Brown, Justice.
The áppellants, Jane A. Cash
and Hugh Cash, appeal from a summary judgment in favor of appellees Dr. Rodolfo Espaldón Lim and Pine Bluff Radiologists, Ltd. They contend that a genuine issue of material fact concerning causation in their medical malpractice claim remains to be resolved and that, accordingly, summary judgment was not appropriate under Ark. R. Civ. P. 56(c). We agree, and we reverse the summary judgment and remand the matter for trial.
On April 8, 1993, the Cashes filed a medical malpractice complaint against Dr. Lim and his radiology clinic, Pine Bluff Radiologists, Ltd., and others. The primary allegation was that Dr. Lim misread Jane Cash’s April 16, 1991 mammogram and failed to diagnose a malignant tumor in her right breast, which resulted in a radical modified mastectomy of her right breast a year later. In 1992, Dr. Ronald Pritchard, another radiologist with Pine Bluff Radiologists, Ltd., read the film and noticed a suspicious density in Jane Cash’s right breast. He recommended that an excision be done. Dr. Hagans, a breast surgeon in Little Rock, did the excision, and the biopsy subsequently revealed a cancerous condition. On April 29, 1992, Dr. Hagans performed the partial radical mastectomy on Cash.
After the complaint was filed, discovery ensued with the appellees taking the deposition of Dr. Hagans and the appellants taking the depositions of Dr. Lim and Dr. Aubrey Joseph, still another physician with Pine Bluff Radiologists, Ltd. Dr. Lim and his radiology clinic then moved for summary judgment. They asserted that they were entitled to summary judgment as a matter of law and that the Cashes had the burden of proving medical malpractice and causation under Ark. Code Ann. § 16-114-206 (1987). They attached as exhibits to their motion four pages from Dr. Hagans’s deposition, X-Ray Requests and Reports for Jane Cash for the years 1989 through 1992, and a discharge summary from Baptist Medical Center in Little Rock dated May 1, 1992. The Cashes responded that factual issues remained to be resolved and that § 16-114-206 of the Medical Malpractice Act was unconstitutional. The Cashes attached to their response the complete depositions of Drs. Lim, Joseph, and Hagans. They subsequently filed an affidavit by Jane Cash regarding the stress, anxiety, and financial harm occasioned by Dr. Lim’s misdiagnosis.
On November 15, 1994, the circuit court issued a letter opinion and found: (1) that neither Dr. Hagans nor anyone else could state to a reasonable degree of medical certainty that the conduct of Dr. Lim or his clinic made a difference in the outcome of Jane Cash’s condition; (2) that the Cashes have failed to demonstrate remaining justiciable issues relating to causation; and (3) causation is an element that the Cashes must prove. On December 7,1994, the court granted summary judgment to Dr. Lim and his clinic.
Turning to the issue on appeal, this court has often summarized its standards for summary judgment review:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H&C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v.
Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City ofPiggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. R 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, All U.S. 317 (1986).
Oglesby v. Baptist Medical System, 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995); see also Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993); Birchfield v. Nationwide Insur., 317 Ark. 38, 875 S.W.2d 502 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).
Accordingly, it is the moving party who has the burden of presenting evidence to sustain a summary judgment, and all proof submitted must be viewed in the light most favorable to the opposing party. It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994); Bartlett v. Argonaut Ins. Co., 258 Ark. 221, 523 S.W.2d 385 (1975).
The matter of proximate causation is ordinarily one for the jury to resolve. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Hence, we turn to the proof submitted by Dr. Lim and his clinic to determine whether a genuine issue of material fact surrounding causation remains. Four pages from the deposition of Dr. Hagans were attached in support of the motion. Those pages read in part;
DEFENSE COUNSEL; Doctor, do I take it from the note of April the 5th, 1993, that you do not intend to testify regarding the standard of care for a radiologist prac ticing that specialty in Pine Bluff, Arkansas, or a similar locality in 1991 or 1992? Is that correct?
DR. HAGANS: I think that would be correct, since I’m not a radiologist.
DEFENSE COUNSEL: Sure. I understand. Now, this lady is your patient?
DR. HAGANS: Uh-huh.
DEFENSE COUNSEL: To a reasonable degree of medical certainty or probability, do I understand that while you feel the films may have been misread, you can’t and will not state that it made any difference in the ultimate outcome? Is that correct?
DR. HAGANS: That is correct, because I don’t think anyone can say that.
DEFENSE COUNSEL: I agree with you. And when I say the ultimate outcome, I’m talking about the entire course of events.
DR. HAGANS: Yes.
DEFENSE COUNSEL: Do you have any problem with that?
DR. HAGANS: No. I think it should be stated, as I told the patient, which is how all this may have occurred, is that, of course, it’s best, if ever a patient has cancer, to remove that cancer as soon as you possibly can.
DEFENSE COUNSEL: Sure.
DR. HAGANS: In this particular case, she had something on her pictures that I think was there, you know, in days past, a year before we removed it. In retrospect, it’s very easy to say that was cancer, you know, and as I told her initially, when I first showed her the films that told me that we needed to go biopsy this, and her question to me was, what do [sic] my pictures look like last year, and I showed the pictures to her on the view box, and it’s very easy — you have these pictures here and you look at them — that this density was there, very easily seen the year before. And this is something that she and her husband could see very easily. And I told them that you can’t say that it was cancer at that point until you did a biopsy. So when we did a biopsy, then, yes, in retrospect, it was cancer.
So there had been a year there where the tumor may have been removed sooner. Would it have made a difference? Unknown, because she had such a good prognosis and has such a good prognosis at this time, that it’s unknown if that year made a difference in her. But then the standard still remains that you should take something out as soon as you can.
DEFENSE COUNSEL: I understand that. But to a reasonable degree of medical certainty or probability, you can’t state as we sit here today, even with the clarity of the retrospectroscope, that had the cancer been removed in 1991, that anything would be different?
DR. HAGANS: Absolutely.
DEFENSE COUNSEL: Okay. What is her prognosis, in your opinion, Doctor?
DR. HAGANS: It’s a little difficult to say because of the fact that she quit chemotherapy
DEFENSE COUNSEL: Yes, sir.
DR. HAGANS: You know, if we had continued the chemotherapy as planned, her prognosis would have been well over 85 percent, 90 percent, that she would not have any trouble in the future. Now, with the chemotherapy not being completed, we don’t have any real statistics to tell us, of course, you know, how much difference that’s going to make. But that, of course, makes me very concerned that she didn’t complete the therapy.
The full depositions of Drs. Lim, Joseph, and Hagans attached to the Cashes’ response and Jane Cash’s affidavit shed no additional light on the issue of causation.
The nub of this matter is whether the statements made by Dr. Hagans in his deposition establish sufficient proof of a lack of causation so as to require the Cashes to respond with countervailing proof. The salient points of Dr. Hagans’s deposition are these:
• Dr. Hagans believed that the 1991 film had been misread.
• He would not testify about the standard of care for radiology in Pine Bluff because he was not a radiologist.
• He did not believe anyone could state with a reasonable degree of medical certainty that the misreading of the film made any difference in the ultimate outcome.
• The standard is that it is best to remove a tumor as soon as you can.
• It was “unknown” whether removing the tumor sooner would have made any difference and he would not state that it would have.
We have held in the past that when the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986); Collyard v. American Home Assur. Co., 271 Ark. 228, 607 S.W.2d 666 (1980). In Wolner, the plaintiff was in the hospital for pro-static surgery, and following surgery, he rose from a chair, fell, and broke his arm. He sued the hospital and his urologist, and the circuit court granted summary judgment in favor of both. We reversed with respect to the urologist and stated that it was the responsibility of the urologist, as the moving party, to prove the requisite standard of care and that he had conformed to that standard of care before the opposing party was required to present proof of the contrary. This he failed to do.
Similarly, in Collyard v. American Home Assur. Co., supra, the issue was whether proof was sufficient to sustain summary judgment in a slip and fall case. The plaintiff (Collyard) gave a deposition in which she stated that she did not know how the water causing her fall got on the floor or how long it had been there. The defendant business (YMCA) where the plaintiff fell moved for summary judgment and attached the plaintiff’s deposition in support of the motion. The circuit court granted the motion in favor of the defendant because the plaintiff had not responded to the motion by countervailing proof. This court reversed and stated:
The appellant [Collyard] alleged negligence on the part of the YMCA. The appellee [YMCA] never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact.
Collyard, 271 Ark. at 229-230, 607 S.W.2d at 668.
Viewing Dr. Hagans’s testimony in the light most favorable to the Cashes, as we are required to do, we cannot say that it establishes a prima facie case of lack of causation or that it constitutes proof that would require countervailing proof from the Cashes. Dr. Hagans was admittedly not a radiologist or an oncologist but a breast surgeon in Little Rock. He stated twice that it is always best to remove cancer as soon as you can and mentioned once that this was the “standard.” In seeming conflict with this, he also stated that he could not say as a medical certainty that the misreading of the 1991 film affected Jane Cash’s outcome, or that anyone could make that statement. Though he believed the films were misread in 1991, he emphasized that he was not a radiologist and did not know the standard of care in Pine Bluff.
We conclude that Dr. Hagans’s testimony falls into the category of his not knowing one way or the other what the causative impact of misreading the 1991 film might have been. He could not be certain of the impact, but, by his own admission, this subject was outside of his area of expertise. Moreover, if anything, his testimony on causation was as favorable to the Cashes as to Dr. Lim and his clinic. In sum, Dr. Hagans’s deposition does not rise to the level of sufficient proof on the issue of causation, and, as a consequence, offsetting proof by the Cashes was not required.
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Per Curiam.
Appellant, Richard Dalton Richmond, by his attorney, Charles E. Tilmon, Jr., has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert L. Brown, Justice.
The issue in this appeal is whether the circuit court erred in setting aside only the damages awarded as part of a default judgment. Appellants Neal Byrd and Wanda Byrd assert that the circuit court did err for multiple reasons, including lack of authority under Ark. R. Civ. R 55(c) to rehear the issue of damages, while leaving the default on the issue of liability intact. We agree that the court did not have the authority to set aside the damages award under Rule 55(c), and we reverse and remand.
The facts in this case are gleaned from the complaint filed by the Byrds against appellee Glenn Dark. The complaint alleges that on or about June 15, 1992, Dark, a resident of the State of Mississippi, was driving his pickup truck and hit Neal Byrd’s car from the rear. Byrd was stopped at a stop sign at the time in West Helena. On August 31, 1993, the Byrds filed suit against Dark for personal injuries arising out of the accident. The complaint prayed for $300,000 for Neal Byrd’s compensatory damages and $50,000 for Wanda Byrd’s loss of consortium. Summons was issued to Dark that same date. Dark was served with summons, the complaint, a request for production of documents, and interrogatories on September 14, 1993 . No answer was filed by Dark.
On January 20, 1994, a hearing was held before the circuit court on the damages to be awarded as a result of the default. Dark did not appear. Neal Byrd testified about his injuries, both those that were preexisting and those due to the accident, and his medical record totalling some 300 pages was introduced into evidence. Most of the medical record had nothing to do with the car accident. At the hearing, counsel for the Byrds also introduced a letter from State Farm offering to settle for $1,500 and remarked that State Farm withdrew the offer after the lawsuit was filed. Counsel for the Byrds further advised the court that Neal Byrd’s medical expenses were in the range of $5,000 or $6,000. At the conclusion of the hearing, the circuit court entered a default judgment in favor of the Byrds with damages of $200,000 for medical expenses and pain and suffering and $25,000 for loss of consortium.
On March 23, 1994, counsel for the Byrds took Dark’s deposition. Dark admitted being served with the lawsuit but stated that he turned the papers over to State Farm’s agent in Clarksdale, Mississippi about a week after receipt. On March 28, 1994, counsel for the Byrds wrote State Farm a letter. He related in that letter that he had spoken to Dark and that Dark told him that he had apprised State Farm of the lawsuit in time to answer. Counsel made demand on State Farm to pay the $225,000 judgment. That letter was received by State Farm on March 30, 1994.
On April 22, 1994, Dark filed a motion to set aside the default judgment on grounds that the damages awarded were excessive. He requested a new hearing on damages. On July 11, 1994, State Farm moved to intervene in the matter. It alleged that default judgment was improper because counsel for the Byrds had misstated the facts surrounding Neal Byrd’s injury to the circuit court at the January 20, 1994, hearing. The motion to intervene was granted. On September 22, 1994, Dark supplemented his motion to set aside the default judgment and alleged that the default judgment had been entered based on mistake, fraud, or misrepresentation.
On January 30, 1995, the circuit court entered its order setting aside the award of damages and made the following findings of fact:
1. That the default judgment as to liability is not an issue and the judgment for the plaintiff on the issue of liability will stand regardless of the Court’s decision on the issue of damages.
2. The Court finds that the attorney for the plaintiff did not mislead the Court in his presentation of plaintiff’s proof for damages.
3. The Court finds that the Court should have given the evidence presented a much more extensive review due to the nature of the proof — that being the fact that plaintiff Neal Byrd, having had other previous injuries and the medical evidence being complicated by this fact.
4. The Court finds that upon a more complete and further review of the evidence herein that the evidence does not support the amount of the judgment and amounts to either a mistake or other reason justifying relief from the operation of the judgment in accordance with Arkansas Rule of Civil Procedure 55(c).
5. The Court finds that the defendant has shown a meritorious defense to the amount of the judgment in accordance with Rule 55(c).
For these reasons, the judgment is set aside and the Court will rehear and reconsider the amount of the damages.
The central question before this court on appeal is whether Rule 55(c) provides the legal basis for setting aside the damage award, but not the judgment on liability, because of mistake in setting the damages or insufficient evidence. Rule 55(c) reads:
(c) Setting Aside Default Judgments. 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, 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. (Emphasis ours.)
In Arkansas, a default judgment establishes liability but not the extent of damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992); B&F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), quoting Howard Brill, Arkansas Law of Damages § 8-1 (2nd ed. 1990); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). In Divelbliss, we discussed the propriety of the default and whether it should be set aside under Rule 55(c). We affirmed the trial court’s decision not to set the default aside. We then emphasized that in Arkansas, unlike some jurisdictions, a hearing is required after default to establish damages, and the plaintiff must introduce evidence to support damages. We further stated that notice to the defaulting defendant who has never entered an appearance is not required. See Ark. R. Civ. P. 55(b). Similarly, in Cotroneo we first analyzed whether the default judgment on liability was subject to being set aside under Rule 55(c) due to mistake, inadvertence, surprise, or excusable neglect. We held that it was not, and we then discussed the damages awarded under a standard apart from Rule 55(c). In both of these decisions, the damages were dis cussed following our conclusion that the default on liability should not be set aside under the criteria set out in Rule 55(c).
In the case before us, the circuit court used Rule 55(c) to vacate the damage award due to the court’s mistake in fixing damages. This runs contrary to our decisions involving Rule 55(c), since it was amended in 1990. See, e.g., Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994); Maple Leaf Canvas v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). In each of these cases the issue was whether the default judgment on liability could be set aside because of mistake, inadvertence, surprise or excusable neglect on the part of the defendant — not the circuit court. Indeed, this court is aware of no authority supporting the proposition that a mistake of the circuit court is contemplated under Rule 55(c) as a basis for vacating a default judgment. We conclude that the circuit court erred in using Rule 55(c) as a vehicle to correct its perceived mistake in awarding excessive damages.
Furthermore, we do not read Rule 55(c) to authorize a court’s vacating a judgment for damages while the judgment on liability stands. Rule 55(c) refers to the cause of action brought and to a meritorious defense to that action. The “mistake” or “excusable neglect” contemplated under its terms refers to mistake or excusable neglect by the defendant in failing to respond to the lawsuit. It does not mean a mistake in the award of damages.
Dark, in his brief in this appeal, invokes a circuit court’s inherent power to order a remittitur when damages are excessive. This court has recognized an inherent power in the circuit court to reduce damage awards to conform to the established facts. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941); see also Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988). We have also recognized the inherent power of the circuit court to order a remittitur when the punitive damages awarded by a jury are grossly excessive or appear to be the result of passion or prejudice. See McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994) (remittitur reversed on punitive damages). However, we have not recognized this inherent power to extend to correcting a mistake in damages a year after the original judgment was entered. State Farm, in its brief, argues that it has presented a meritorious defense to the excessive damages under Rule 55(c). But Rule 55(c) speaks expressly in terms of a meritorious defense to the action. State Farm, accordingly, reads into the rule language that is simply not there. In sum, we construe Rule 55(c) to authorize the vacating of default judgments which embrace liability for the alleged cause of action. It does not permit a setting aside of the damage award when liability against the defendant remains fixed and is not in dispute.
There is, finally, the issue of two attorneys testifying as expert witnesses for Dark and State Farm in this case on the issue of the excessiveness of the damages awarded. The two attorneys were called as witnesses and gave their opinions with respect to the value of the Byrds’ case. We agree with the Byrds that this practice cannot be countenanced and must be discouraged. Attorneys are advocates and their individual experiences in the courtroom do not equip them to speculate on the excessiveness of damages in a particular case. That is a matter for the trier of fact to determine. Though we do not reverse this case based on this testimony by the attorneys, we will entertain this point as grounds for reversal in the future.
After briefs were filed in this matter, the Byrds filed a motion seeking to dismiss what they dubbed the appellees’ attempted cross appeal and seeking to strike the argument by State Farm and Dark that counsel for the Byrds had misrepresented Neal Byrd’s injuries at the hearing on damages. Sanctions were also requested. The Byrds contend that the circuit court found that there was no misrepresentation in its order and that Dark and State Farm did not cross appeal on this point. Though the Byrds are correct, we do not view the references in the appellees briefs as sufficiently egregious to warrant a dismissal, a striking, or sanctions. See, e.g., Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994); Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). The motion is denied.
We reverse the order of the circuit court vacating the damage award and calling for a rehearing on damages, and we remand for an order to be entered consistent with this opinion.
Reversed and remanded.
Glaze, J., not participating. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Johnnie Mann, filed suit against Jessie Orrell, d/b/a The Centerfold Club, and Centerfold Entertainment Club, Inc. (hereafter “the Centerfold Club”) and Paul Maummar. The complaint was dismissed by the trial court. We affirm.
The facts as set out in Mann’s complaint and amended complaint reflect that on May 18, 1991, Mann was an officer with the Hot Springs Police Department. In the course of his duties, he was called to the Centerfold Club to quell a disturbance. When he arrived, he observed three individuals, who were allegedly involved in the disturbance, running to a pickup truck that was parked in the club’s parking lot. The truck was owned by Paul Maummar. (The pleadings do not indicate that Maummar was at the scene.) When the individuals attempted to flee in the truck, Mann pulled his vehicle into the parking lot to block their exit. Mann then got out of his vehicle and was struck by the pickup truck. He sustained injuries as a result.
On May 16, 1994, Mann filed suit in Garland County Circuit Court naming the Centerfold Club and Paul Maummar as defendants. The driver and occupants of the pickup truck were not named. Mann’s complaint and his subsequent amended complaint alleged that the club was an establishment which allowed patrons to bring liquor onto the premises. It was further alleged that the three individuals who attempted to flee the scene were under age 21 and that the club had allowed them to consume intoxicating beverages to such an extent that they became unruly and dangerous. In particular, Mann claimed that the club was negligent in facilitating the consumption of alcohol by minors, in failing to screen for underage patrons, in failing to remove the minors once they became unruly, in creating an environment conducive to violence and in failing to maintain the premises in a reasonably safe condition. Finally, Mann claimed that the club’s manner of doing business constituted willful and wanton conduct.
The allegations against Paul Maummar were contained in one paragraph, which read as follows:
The Defendant, Paul Maummar, was negligent in as much as he was the owner of the aforesaid vehicle and he failed to use ordinary care by permitting one or more of the three (3) previously named individuals to be in possession and drive his car when he knew or reasonably should have known that they would become intoxicated and that they would otherwise operate his vehicle in a reckless manner.
The appellees responded to Mann’s amended complaint with motions to dismiss, pursuant to ARCP Rule 12(b)(6). The Centerfold Club argued that Mann was attempting to impose “dram shop” liability, which is not recognized in Arkansas. Maummar argued that Mann had failed to state facts upon which relief could be granted. The trial judge granted both motions to dismiss. Both dismissals were without prejudice. Mann elected to bring this appeal rather than to plead further.
When we review an order granting a motion to dismiss, we treat the allegations in the pleading as true and view those allegations in a light most favorable to the appellant. Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995). We have reviewed the trial court’s order with this standard in mind, and hold that the dismissal of the complaint was proper.
Mann recognizes that this court has declined to impose liability on a tavern owner for injury to a patron or third person when the injury results from the consumption of alcohol. First American Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). This is true even in the case of illegal consumption of alcohol by a minor. Yancey v. The Beverage House of Little Rock, 291 Ark. 217, 723 S.W.2d 826 (1987); Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986). However, in his brief, Mann attempts to distinguish this line of cases as follows:
The Complaint specifically alleges that the Centerfold Club failed to use ordinary care to maintain its premises in a reasonably safe condition by allowing minors to consume alcoholic beverages illegally on the premises to such an extent that they became drunk and unruly. As alleged in the Complaint, this failure was the proximate cause of Appellant’s injury. The [other liquor liability cases] concern instances where patrons left the premises of the tavern or liquor store owner and injured the third party off the premises. Appellant submits that the distinction is valid. . . .
Mann admits that his cause of action against the Centerfold Club is grounded on the fact that minors were allowed to consume alcoholic beverages on the premises. However, he would have us change our long-standing rule simply because of the site where the injury occurred. This is not a valid argument. In Carr v. Turner, supra, alcoholic beverages were also illegally consumed on the premises, but the injury to the third person occurred on a public street. It would be illogical for us to refuse to impose liability in Carr, where illegal, on-site consumption of intoxicants purportedly led to injury away from the premises, yet impose it here where illegal, on-site consumption of intoxicants purportedly led to injury on the parking lot of the premises.
To further support his argument, Mann cites Industrial Park Businessmen’s Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972). In that case, Buck was injured when another patron of the club shot him. Buck had made a nuisance of himself to the patrons and management of the bar. A patron of the bar, who had turned his pistol over to the bartender, was allowed by Barg, the club’s manager of sorts, to retrieve the pistol for the purpose of dealing with Buck’s obnoxious behavior. The case also reflects that, when the injury occurred, the club had been emptied of personnel, including bartenders and waitresses, leaving only Barg, who was in an intoxicated state. We upheld a verdict in favor of Buck and noted that a tavern keeper has a duty to use reasonable care to protect guests or patrons from reasonably forseeable injury, mistreatment or annoyance at the hands of other patrons. We further stated that negligence in such a situation might consist of failure to take appropriate action to eject persons of undesirable character from the premises, knowingly permitting irresponsible, vicious or drunken persons to be in and about the premises, or failure to maintain order and sobriety in the establishment.
Although both the Buck case and the case at bar concern a dangerous, drunken and disorderly situation, there is no evidence that liability in Buck was premised on the consumption of alcohol. By contrast, the very heart of Mann’s case is the allegation that the Centerfold Club facilitated the consumption of alcohol by underage persons. As we have said many times, we will not impose liability on a tavern owner for injuries resulting from the wrongdoer’s intoxication.
We now turn to that portion of the complaint which attempts to state a cause of action against Paul Maummar for negligent entrustment. The elements of negligent entrustment are: 1) the entrustee is incompetent, inexperienced or reckless; 2) the entrustor knew or had reason to know of the entrustee’s propensities or condition; 3) an entrustment of chattel; 4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the entrustor; and 5) harm proximately caused by the negligence of the entrustor. LeClaire v. Commercial Siding & Maintenance Co.. 308 Ark. 580. 826 S.W.2d 247 (1992).
There is nothing in Mann’s complaint to indicate that the entrustment created an appreciable risk of harm to Mann and a relational duty on the part of Maummar. A pleading is deficient if it fails to set forth facts pertaining to an essential element of the cause of action. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). Additionally, Arkansas is a state that requires fact pleading. A pleading which sets forth mere conclusions is not sufficient under our Rules of Civil Procedure. Perrodin v. Rooker, supra. Mann’s complaint attempts to follow the elements of a negligent entrustment cause of action, but sets forth virtually no facts which correspond to those elements. We agree with the trial court’s decision to dismiss the complaint against Maummar.
Mann’s complaint was dismissed without prejudice. He had the option to plead further. However, he chose to appeal. Since we have determined that the trial court’s dismissal was proper, Mann’s complaint is now dismissed with prejudice. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).
Affirmed.
We note also that the Buck case involves a tavern’s duty to its patrons. We have not been asked to decide whether Mann’s status as an on-duty police officer would have any effect on the Centerfold Club’s liability. See Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995), where we recognized the professional rescuer doctrine, also known as the Firemen’s Rule. See also Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984). | [
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Andree Layton Roaf, Justice.
This is a medical malpractice case. The appellants are the co-guardians of Emily Jane Golden (“guardians”) and the Arkansas Department of Human Services (“ADHS”), which provided medical benefits to her. The appellees are ten physicians employed by the University of Arkansas for Medical Sciences (“UAMS”), including two who treated Emily Golden’s mother, Kim Golden, during her pregnancy and delivery, Drs. J. Gerald Quirk and Gaylon L. Brunson, and eight others who provided medical treatment to Emily after her birth. Appellee American Physicians Insurance Exchange, (“APIE”) is the malpractice carrier for the physicians. The guardians filed suit against the physicians, alleging that Emily Golden suffered injuries as a result of negligence during her delivery and in the failure to subsequently diagnose her birth injuries. The trial court granted summary judgment to two of the physicians and dismissed the complaint as to one physician during the trial; a jury returned a verdict in favor of the remaining physicians. The guardians appeal the denial of their motion for new trial and the orders granting the summary judgments and dismissal. ADHS appeals the denial of its motion to intervene. We agree that the trial court erred in excluding the depositions of two of the guardians’ obstetrical experts and in denying ADHS’s motion to intervene. We affirm in part and reverse and remand for new trial as to Drs. Quirk and Brunson, and to allow the intervention of ADHS.
Emily Jane Golden was born at the UAMS hospital on October 3, 1985. This action was commenced on October 26, 1992, after Emily’s parents obtained a diagnosis that she suf fered a spinal cord injury at birth. Dr. Kim Golden, Emily’s mother, had asked Dr. J. Gerald Quirk, an obstetrician on the UAMS medical school ¡Faculty, to handle her pregnancy and delivery. Emily was delivered approximately seven and a half months into the pregnancy. Dr. Quirk elected to perform a vaginal delivery rather than a cesarian section, and he used forceps during the delivery. Another obstetrician, Dr. Gaylon L. Brunson, had examined Kim Golden during her premature labor while Dr. Quirk was out of town. The Goldens contend that Emily’s spinal cord was stretched at birth, and that her vertebra may have been fractured. They further contend that the remaining physicians named in the lawsuit, also UAMS employees or residents at the time, were negligent in failing to discover the extent of Emily’s injuries. The child was ultimately diagnosed as having a spinal cord injury, as opposed to cerebral palsy, when she was 7 years of age. The Goldens also sued APIE pursuant to the Arkansas Direct Action statute, as insurer of the state employee physicians. The trial court granted APIE’s motion to dismiss prior to trial, granted summary judgment to two of the physicians who examined Emily after her birth, Drs. Allison and Molpus, and dismissed the complaint during the trial as to Dr. Everett, another physician who examined Emily. The appellant ADHS moved to intervene pursuant to Ark. Code Ann. § 20-77-304 (Repl. 1991) in order to recover medicaid benefits paid on behalf of Emily after her medical insurance had been exhausted. The trial court denied the motion on the basis that ADHS’s claims were derivative of Emily’s parents’ claims for recovery of her medical expenses, and those claims were time barred.
1. Exclusion of deposition testimony
The guardians first contend that the trial court improperly excluded depositions of two of their experts contrary to the rules of civil procedure. This issue bears only on the case against Drs. Quirk and Brunson because the excluded expert testimony concerned only the issue of their negligence in treating Kim Golden during her labor and delivery. After the original complaint was filed, APIE filed a motion for a pretrial scheduling order requesting that it be allowed to take the discovery depositions of the guardians’ expert witnesses prior to and in a separate proceeding from any evidentiary depositions. The guardians’ counsel objected that the rules of civil procedure did not distinguish between discovery and evidentiary depositions and asserted they would not waive the wording of Ark. R. Civ. P. 32.
At a hearing on the motion, the guardians again argued the rules of civil procedure did not distinguish between discovery and evidentiary depositions. The trial court entered a scheduling order which provided that the defendants were entitled to take “discovery” depositions of all the plaintiffs’ expert witnesses and that the depositions “shall not be used as direct testimony at trial unless the witness is deceased.” The order further provided that, if it was determined that a witness would be otherwise unavailable to attend trial, “plaintiff shall notify all defense counsel so that an evidentiary deposition can be scheduled subsequent to and in a. separate proceeding from the discovery deposition.”
Prior to the start of the trial, the guardians filed motions seeking permission to read at trial the depositions of Dr. Frank Miller, who had been present during Kim Golden’s labor, and Dr. Melvyn J. Ravitz, both experts for the case against Drs. Quirk and Brunson. The motions asserted that Dr. Miller’s deposition was taken at his office in Lexington, Kentucky, and that Dr. Ravitz was an obstetrician in Manasquan, New Jersey. The motion further stated Dr. Ravitz was suffering from a medical problem and was unable to attend the trial. The trial court denied the guardians’ motion to introduce the depositions of Dr. Ravitz and Dr. Miller based on the pretrial order. The trial court found that exceptional circumstances did not exist in the case of Dr. Ravitz and appellees were not given notice pursuant to the pretrial order that Dr. Miller’s deposition was to be an evidentiary deposition. We agree that the trial court erred in excluding the depositions.
Rule of Civil Procedure 32 provides in part:
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: . . .
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; ....
There is no dispute that both Dr. Miller and Dr. Ravitz were out of state at the time of trial. There is no allegation that the absence of either expert was procured by the appellants. Rule 32 clearly provides for the admission of both depositions.
Drs. Quirk and Brunson assert that the trial court properly denied admission of the depositions for failure to comply with the pretrial order. They rely upon Ark. R. Civ. P. 26, General Provisions Governing Discovery, which provides in part:
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which he is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (Emphasis added.)
Drs. Quirk and Brunson assert that Rule 26(b)(4)(A)(ii) allows the trial court discretion to distinguish between discovery and evidentiary depositions.
However, this Court has clearly stated that Rule 32 does not distinguish between discovery and evidentiary depositions. Whitney v. Holland Retirement Ctr., 323 Ark. 16, 912 S.W.2d 427 (1996). We stated that the rule has been construed to provide that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). Id.
In Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), we concluded a deposition was properly excluded where the understanding of the parties and the trial court was that plaintiffs counsel would not use a doctor’s discovery deposition as an evidentiary deposition. We determined that the plaintiff had waived Rule 32 under these circumstances. However, in Whitney, supra, we rejected the argument that the parties had an implied agreement regarding discovery and evidentiary depositions.
Clearly, there was no agreement or waiver by the guardians in this instance. Although the trial court ruled the depositions would be for discovery only and not admissible at trial, and Quirk and Brunson may have relied upon that ruling, the guardians emphatically protested the trial court’s ruling and specifically cited the Goodwin case as the reason for their continued objections.
We also agree that the exclusion of the deposition testimony was prejudicial error. Our Medical Malpractice Act provides that in any action for medical injury the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991); Ark. Code Ann. § 16-114-206 (1987). The plaintiffs burden of proving the applicable standard of care and the defendant’s failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). Dr. Ravitz’s proffered deposition provided opinions regarding the applicable standard of care, the alleged negligence of Drs. Quirk and Brunson, and proximate causation. Dr. Miller’s deposition was also proffered by the guardians, and it provided that he examined Kimberly Golden in the delivery room on the evening of October 2, 1985. Although Dr. Miller requested that he be considered a fact witness rather than an expert witness, he conducted a cervical exam of Kimberly Golden, discussed the “appropriate” treatment which he prescribed for her uterine contractions, and discussed the procedures he followed during her subsequent pregnancies. In the instant case, the guardians were deprived of expert testimony in a situation in which such testimony was required. See Brumley v. Naples, supra. We agree that the exclusion of critical expert testimony in a medical malpractice case with multiple experts on each side constitutes prejudicial error.
2. Medical Malpractice Act
The guardians assert that Ark. Code Ann. § 16-114-207(3) (1987), a part of the Medical Malpractice Act, is unconstitutional. This section of the act provides that no medical care provider shall be required to give expert testimony at trial against himself or herself.
The arguments on this point raised in the trial court consist of the following. In a motion for authority to ask the defendant doctors to give expert opinion testimony at their depositions, the guardians asserted § 16-114-207(3) did not apply to discovery. A hearing was held regarding this motion, and during the discussion, counsel for the guardians stated,
[l]et me just state this for the record. I think this whole statute is unconstitutional. This same issue was before Judge Bogard in another case. He ruled this entire statute unconstitutional. If the Court is going to rule against me on this point, I would like to make that argument and present a brief on that point so I can preserve my record on that to go to the Supreme Court with it. But I think the whole statute is unconstitutional. (Emphasis added).
The trial court commented his inclination was to allow the guardians to question the defendants about their opinions as to the standard of care but not to allow use of this testimony at trial.
Subsequently, the guardians filed a third amended complaint which alleged in part:
the so-called Arkansas Medical Malpractice Act . . . and each and every section thereof, (1) Discriminates in favor of medical providers over others and, therefore, violates the equal protection clause of both the Federal and Arkansas constitutions (Ark. Const. Art. II, Sec. 3; U.S. Const. Amend. XIV), (2) Denies prompt access to the courts thereby depriving persons of the lawful right to redress (Ark. Const. Art. II, Sec. 13), (3) Constitutes special legislation (Ark. Const. Art. V, Sec. 25), (4) Violates the privileges and immunities clause of both the United States (U.S. Const. Amend. XIV) and the Arkansas Constitution (Ark. Const. Art. II, Sec. 18), (5) Violates the Arkansas Constitution in attempting to limit amounts of recoveries. (The Arkansas Constitution, at Art. V, Sec. 32, provides: “that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”), and (6) Violates the Supersession Rule.
In response to a motion in limine filed by Quirk, the guardians stated in part, “In the first place, plaintiffs contend that the so-called Medical Malpractice Act is unconstitutional.” At a pretrial hearing on the motion in limine, during the course of his argument, counsel for the guardians stated, “we would restate our position once again, that this particular statute, . . ., is unconstitutional.” The trial court stated, “I’ll hold that it is constitutional.” Finally, in the hearing on the motion for new trial, the guardians proffered the order finding Ark. Code Ann. § 16-114-207(3) unconstitutional in another medical malpractice case. The order simply stated that § 16-114-207(3), “(1) discriminates in favor of medical providers, (2) usurps the authority of the courts to establish rules of practice, pleadings and procedure, and (3) violates the equal protection clause and the privileges and immunities clause of the Arkansas and United States Constitution, therefore, that section of the Act is unconstitutional.” There is no other indication in the abstract that the guardians presented any further argument or brief to the trial court.
We first note that this constitutional issue was not properly briefed and argued to the trial court. See Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987). This Court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1993). Moreover, the guardians did not raise the specific constitutional arguments they now seek to advance in this appeal. Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995); see also Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996). At trial, they merely made conclusory statements that the statute was unconstitutional. This argument is therefore procedurally barred.
3. Cross-examination of Dr. Quirk
The guardians contend that the trial court erred in limiting the cross-examination of Dr. Gerald Quirk. They raise three evidentiary questions under this point. They contend that the trial court prevented them from cross-examining Dr. Quirk about his “attitudes and temperament,” his “charting practices,” and his past employment as a medical expert. Although we have already determined the judgment as to Dr. Quirk must be reversed, we discuss this argument as it is likely to arise at trial on remand.
The guardians state that Dr. Quirk testified in a previous case that he was a “street fighter” from New York and this attitude was expressed in his daily life and in his verbal jousting with opposing attorneys. They assert that Quirk’s temperament caused him to obstinately refuse to modify his manner of performing the delivery once complications arose and to instead employ physical force by using forceps to complete the delivery of Emily. The guardians further contend that these attitudes and temperament were part of the foundation of their case, and were relevant and probative to the issue of Quirk’s credibility.
At a pretrial hearing, the trial court concluded that testimony regarding Dr. Quirk’s “verbal discourse with lawyers” was highly prejudicial. The trial court further stated that if the defendant were being called as an expert witness, the fact that he enjoyed engaging in verbal street fighting with lawyers in the courtroom would be admissible to show bias and prejudice, but as a fact witness, such testimony, “is not probative but is prejudicial.” At trial, when the guardians once again sought to cross-examine Dr. Quirk regarding his attitude and temperament, the trial court simply stated the questions were not relevant to the case.
A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Further, we will not reverse a trial court’s weighing of probative value against unfair prejudice under Rule 403 unless there has been a manifest abuse of discretion. Id. Here the appellants have failed to demonstrate an abuse of discretion regarding either determination.
The guardians next submit the trial court improperly excluded evidence of Dr. Quirk’s “charting practices.” They assert that during his deposition, Dr. Quirk stated that he “does ‘skillful charting,’ in that he never charts anything unfavorable about himself.” As an example they allege that Dr. Quirk once misdiagnosed a baby as being dead, and later charted inaccurate information to hinder any later inquiry into the incident.
Even assuming the guardians’ characterization of the incident is accurate, the trial court did not abuse its discretion in excluding the evidence. At the pretrial hearing, the guardians argued Dr. Quirk’s charting practice was a “habit” and pertinent to show a practice of fraudulent charting. The trial court concluded Dr. Quirk was not on trial for the incident regarding the baby and it was not admissible, stating that “perhaps the charting might be admissible. But the facts that were told to me would absolutely prejudice the jury in this case.” The trial court further stated that “I don’t think the probative value anywhere closely measures to the prejudicial effect.”
On appeal, the guardians do not assert that the trial court abused its discretion regarding the prejudicial effect of the testimony; they simply assert the testimony is admissible under Ark. R. Evid. 404 and 608 which address character evidence. However, it is within the trial court’s discretion to exclude otherwise admissible testimony under Ark. R. Civ. P. 403. Thompson, supra. We cannot say that the trial court abused its discretion in excluding the testimony.
For their third point, the guardians contend the trial court erred in excluding evidence of Quirk’s past employment as a medical expert. They submit Quirk worked in the past as a medical expert witness on a “very large number of cases for a plaintiffs attorney.” The trial court initially concluded Quirk was a fact witness, not an expert witness, and Ark. Code Ann. § 16-114-207(3) provided he could not be required to give an opinion against himself. However, the trial court further stated that cross-examination of Dr. Quirk about his testifying as an expert witness would not be relevant and the prejudicial value would outweigh any probative value.
On appeal, the guardians submit the testimony was clearly admissible under § 16-114-207(3) and “was probative on several other counts as well.” The guardians state that the evidence demonstrated Quirk had not merely testified on occasion; he had worked on approximately 200 cases for a single plaintiffs attorney and received $250 an hour for that work. Here, the guardians have also failed to demonstrate that the trial court abused its discretion in concluding the testimony was not relevant. See, Thompson, supra. Dr. Quirk’s past experience as a medical expert for a plaintiff’s attorney, though it may have been extensive, was not relevant in this case.
4. Res ipsa loquitur
The guardians next declare that the trial court erred in refusing Arkansas Model Instruction (AMI) 610 because all of the required elements of res ipsa loquitur are present in this case. At trial, the appellants proffered a jury instruction which provided,
With respect to the question of whether Dr. Gerald Quirk was negligent in the use of forceps in this case, the plaintiffs have the burden of proving each of the following two propositions: First, that the alleged injury to Emily Jane Golden’s vertebrae was attributable to the use of forceps which were under the exclusive control of Dr. Quirk. Second, that in the normal course of events, no injury would have occurred to Emily Jane Golden’s vertebrae if Dr. Quirk had used ordinary care while the forceps were under his exclusive control. If you find that each of these two propositions has been proved by the plaintiffs, then you are permitted, but not required, to infer that Dr. Quirk was negligent.
See AMI 610 (3rd. ed.). Once again, we discuss this issue as it is likely to arise on remand.
In Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991), this Court clearly stated that the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist. We noted that the theory of res ipsa loquitur may be invoked when: (1) the defendant owes a duty to the plaintiff to use due care, (2) the accident is caused by the thing or instrumentality under the control of the defendant, (3) the accident which caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care, and (4) there is an absence of evidence to the contrary. Id. In Schmidt, however, we concluded the appellant was not entitled to the application of the doctrine where there was “evidence to the contrary,” in the form of expert testimony, which indicated the use of “proper care” by two of the defendants.
The guardians’ proposed jury instruction relates to the question of whether Dr. Quirk was negligent in the use of forceps, resulting in an injury to Emily Jane Golden’s vertebrae. However, there was substantial “evidence to the contrary” that an accident was caused by the thing or instrumentality under the control of the defendant or that an accident even occurred during the delivery of Emily Golden. Tanna Lentz Barnes, the nurse who assisted with the delivery, testified that she did not recall Dr. Quirk yanking the baby out with the forceps. Dr. Larry Gilstrap, a professor of obstetrics and gynecology who testified for the appellees, stated that it was appropriate and within accepted care for Dr. Quirk to have performed the outlet forceps delivery. Dr. Gilstrap further testified that it was his opinion with a reasonable degree of medical certainty that Emily Golden did not have a fractured neck at birth. Dr. Gerald Fenichel, a pediatric neurologist who testified for the appellees, stated that it was his “opinion within a reasonable degree of medical certainty that Emily Golden did not have a fractured neck at birth as a result of a low forceps delivery by Quirk.”
Dr. David McKelvey, an obstetrician-gynecologist who testified for the appellees, stated excessive force was not used in delivering the baby. Finally, Dr. Tom Naidich, an expert in neuroradiology who testified for the appellees, stated that what is seen at the cervical vertebrae in the films, MRI scans, and CT scans of Emily Golden was not the result of trauma at delivery. The trial court properly refused the proffered instruction.
5. Limitation of Closing arguments
At the end of the trial, the trial court stated that he was inclined to allow the plaintiffs forty minutes for closing argument, each defense attorney twenty minutes, and then ten minutes for the plaintiffs in rebuttal. Counsel for the guardians commented that forty minutes seemed unrealistic. The next day, prior to the beginning of closing arguments, the trial court stated he had decided to allow the plaintiffs a full hour, but only twenty minutes of that time could be used for rebuttal. Each of the defendants was still limited to twenty minutes in closing argument.
On appeal, the guardians assert that the trial court erred in limiting the time because it is clear that the circumstances of this case necessitated a longer closing argument. However, the guardians did not object to the trial court’s limitation upon closing argument. Thus, the issue is not preserved for appeal. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). Although counsel for the guardians initially commented that forty minutes seemed unrealistic, the trial court reconsidered and extended the time to one hour. The guardians’ counsel made no other comments regarding the limitation.
The guardians further assert that the trial court erred in prohibiting them from arguing damages in the rebuttal portion of their argument. Following the conclusion of the defendants’ opening arguments, one of the defendants asserted that since none of the defendants mentioned damages during closing arguments, plaintiffs should be prohibited from discussing damages during the rebuttal. The trial court agreed and ruled that the plaintiffs could not argue damages in their rebuttal.
A trial court has wide discretion in controlling, supervising, and determining the propriety of counsels’ arguments, and an appellate court will not reverse absent a showing of manifest abuse. Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994). Moreover, here the guardians cannot show they were prejudiced by the ruling. The jury returned a verdict in favor of the defendants on the issue of liability; therefore, the jury was never required to consider the issue of damages. See Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). This Court will not reverse in the absence of a showing of prejudice. Id.
6. Dismissal of Insurer
The guardians contend that the trial court erred in dismissing APIE. APIE was made a party to the litigation, pursuant to Ark. Code Ann. § 23-79-210 (a)(1) (Repl. 1992) and § 19-10-305(a) (Repl. 1994), as malpractice insurance carrier for defendant physicians. APIE moved to dismiss on the basis that the direct-action statute, § 23-79-210, did not authorize the filing of a direct-action lawsuit against a liability insurance carrier for an individual. APIE also asserted in a supplemental brief that Act 292 of 1993 amended § 19-10-305 and clarified that direct-action statutes were not allowed against liability insurers for state employees. The trial court concluded that in Act 292 of 1993 the legislature had spoken clearly on this matter; therefore the complaint against APIE should be dismissed.
Arkansas Code Annotated § 23-79-210(a) (Repl. 1992) provides:
(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.
In Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988), we commented that our direct-action statute is limited to the insurance carriers of cooperative non-profit organizations, municipalities, agencies or subdivisions of municipalities or of the state, improvement districts, school districts, or other organizations of any kind or character not subject to suit in tort. See also Jarboe v. Shelter Insurance Company, 317 Ark. 395, 877 S.W.2d 930 (1994). We further commented that the statute makes no mention of individuals. Carter, supra
On appeal, the guardians contend APIE is not the insurance carrier for the individual doctors, but rather it is the insurer for UAMS, a state agency, and the doctors are covered as employees of the agency. However, the complaint did not allege that APIE was brought in as the insurer for UAMS, or that the Medical Center was negligent.
The guardians also assert that the amended sections of § 19-10-305 are unconstitutional as applied retroactively to any suits pending on the effective date of Act 292. Act 292 of 1993 provides in part:
SECTION 1. Arkansas Code 19-10-305 is hereby amended to read as follows:
“19-10-305. Immunity of state officers and employees - Status as employee.
(a) Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.
SECTION 3. This act shall have a retroactive application to the effective date of Act 542 of 1991 to avoid the misinterpretation of the intent of Act 542 as permitting suits directly against liability insurers of state and local government officials and employees. This act is intended to have retroactive effect so as to apply to any suits pending as of the effective date of this act. (Emphasis added.)
Act 292 added only the underlined portion of the statute. The guardians simply state that “such retroactive application violates Appellants’ rights under the due process clauses of both the Arkansas and United States Constitutions, Ark. Const. art. 2, Section 8, and U.S. Const. Amend. V.”
We first note that where an appellant cites no authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm the decision of the trial court. State Farm Mut. Auto Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995). Second, this Court has previously concluded that the direct action statute only allows suits against insurers for the negligence of their insureds when the insured is a charitable organization or governmental entity. Jarboe, supra. More significantly, Act 292 simply added the clause “except to the extent that they be covered by liability insurance” as qualifying an employee’s immunity. Consequently, there is no retroactive application because in Carter v. Bush, supra, this Court recognized in 1988 that employees have only a qualified immunity and that actions can be maintained against them to the extent they are protected by insurance.
7. Summary Judgment
The guardians contend the trial court erred in granting summary judgment in favor of Dr. Janice Allison and Dr. Mark Molpus. Drs. Allison and Molpus moved for summary judgment on the basis that they were residents in radiology training at all times relevant to the lawsuit and the guardians failed to present any expert testimony showing that they deviated below the standard of care for residents in training. The guardians responded that Allison and Molpus were fully licensed doctors at all times relevant to the lawsuit and that there was testimony that both misread an MRI as normal. The trial court granted summary judgment in favor of Allison and Molpus.
On appeal, the guardians submit they provided extensive deposition testimony which created a fact question as to the neg ligence of Allison and Molpus. They also assert that the two defendants moved for summary judgment without any supporting affidavits or depositions only because no expert witness testified they deviated below the standard of care for residents in training.
The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This Court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.
Here, Allison and Molpus did not dispute the facts presented by the guardians, but argued they were entitled to summary judgment'as a matter of law since there was no testimony that they deviated below the applicable standard of care. Arkansas Code Annotated § 16-114-206 (1987) provides that in any action for medical injury the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991). The plaintiffs burden of proving the applicable standard of care and the defendant’s failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).
On appeal, the guardians offer no argument that either Allison or Molpus deviated below the required standard of care. In fact, as to Allison, they do not even mention the standard of care. As to Molpus, they argue that Dr. Henry Pibram testified it was below the standard of care for the staff radiologist not to comment on a mass depicted in the MRI. However, Dr. Pibram admitted he did not know what the standard of care was for a resident. The guardians have not established on appeal that they presented any evidence of the standard of care required of Allison and Molpus. They have not cited any evidence in the record to support the theory that residents should be held to the same standard as other licensed doctors. Consequently, Allison and Molpus were entitled to judgment as a matter of law; the trial court did not err in granting the summary judgments.
8. Dismissal of Dr. Everett
The guardians argue that the trial court erred in dismissing Dr. Karen Everett upon her motion for directed verdict. Dr. Karen Everett was a neurology resident when she conducted an examination of Emily Golden on August 4, 1989. Dr. Bernadette Lange was the staff pediatric neurologist who supervised Dr. Everett. Dr. Everett signed the report regarding Emily Golden, and the report was counter-signed by Dr. Lange. The guardians assert Dr. Everett’s examination ignored symptoms that Emily Golden had a spinal cord injury and did not recommend any follow up treatment. On appeal, the guardians submit that the “total evidence” justified submitting Dr. Everett’s negligence to the jury.
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. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id.
The guardians principally rely upon the testimony of Dr. John Menkes, a pediatric neurologist, who testified as an expert for the guardians. During direct examination, he testified that it was below the standard of care not to bring Emily Golden back for further examination. On cross-examination, Dr. Menkes testified that Dr. Everett and Dr. Lange did not violate any standard of care in not detecting a spinal cord lesion on August 4, 1989, and that his only criticism was that they should have brought the child back for a follow-up examination.
Dr. Menkes further testified that Dr. Everett originally wrote “RTC,” return to clinic, which was scratched out when Dr. Lange determined a follow-up visit was not necessary. Dr. Menkes testified that his criticism of Dr. Everett was that she should have overruled Dr. Lange and insisted the child return to the clinic. However, Dr. Menkes further stated that if it is the customary practice at UAMS for the staff doctor, and not the resident, to have the final word, then Dr. Everett would not have such authority; Dr. Menkes did not know the customary practice at UAMS.
In granting the directed verdict, the trial court commented that Dr. Menkes’s criticism concerned the return to the clinic and concluded Dr. Menkes was not familiar with the standard of care at the University of Arkansas Medical School as to the duties of a resident in this situation. Once again, the guardians failed to present proof of the applicable standard of care and of the defendant’s failure to comply with that standard. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991); Brumley v. Naples, supra.
9. Exclusion of medical expenses
The guardians assert the trial court erred in excluding Emily Jane Golden’s medical expenses. The trial court granted summary judgment in favor of the defendants and barred the guardians from recovering medical expenses for Emily Golden. The trial court concluded the claim for recovery of medical and related expenses incurred during the child’s minority is that of her parents only and because the parents failed to assert their claim within two years of the date of the negligent acts, the claims were barred by the statute of limitations.
The trial court concluded the child is not given an independent right to recover the cost of the medical treatment. In Parrott v. Mallett, 262 Ark. 525, 558 S.W.2d 152 (1977), this Court noted that in case of injury to a minor child, there are two separate and distinct causes of action: one in favor of the infant for his injuries and one in favor of the parent for losses suffered by the parent. We went on to state:
We have not specifically stated that recovery cannot be had in an action on behalf of a minor child for medical expenses incurred and to be incurred during his minority, where he has not paid them and is not liable for them. By an overwhelming weight of authority, it is held that no award for such damages may be made in an action brought on behalf of the child, where the child is unemancipated and not responsible for his own debts and has not paid the bill for such expenses.
Thus, the trial court correctly concluded Emily Golden did not have an independent right to recover medical expenses.
As to the right of William and Kimberly Golden to recover expenses incurred on account of the injury to Emily Golden, the trial court concluded the statute of limitations barred such an action. Ark. Code Ann. § 16-114-203 (Supp. 1995) provides:
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.
The guardians concede that the last wrongful act complained of occurred in January of 1991. William and Kimberly Golden did not even become parties to the action, and then only as guardians, until the Second Amended Complaint which was filed on February 18, 1993. Thus, the trial court correctly determined that their claims were time barred.
10. Intervention of ADHS
Appellant ADHS argues that the trial court erred in denying its motion to intervene. On November 8, 1993, ADHS filed a motion to intervene pursuant to Ark. R. Civ. P. 24(a)(1) and Ark. Code Ann. § 20-77-304 (Repl. 1991). The complaint asserted Emily Golden had applied for and received benefits administered by the Medicaid program and she had assigned any recovery from the defendants to ADHS. The complaint further asserted that Ark. Code Ann. § 20-77-301 et seq. imposes such an assignment as a matter of law and creates an absolute lien in favor of ADHS. The trial court denied the motion for interven tion on the basis that ADHS’s claims were derivative of the parents’ claims for recovery of medical expenses incurred during the minority of Emily Golden. The trial court found that because the parents’ claims were barred, ADHS’s derivative claim was also time barred.
Appellant ADHS contends it has a right (1) to initiate an action on its own behalf, irrespective of the actions of others, and (2) to intervene in an existing action brought by or on behalf of a Medicaid recipient. We hold the trial court erred in denying the motion for intervention, as ADHS’s claims are clearly not derivative of the claims of the parents.
Arkansas Code Annotated § 20-77-301 (Repl. 1991) provides in part:
(a) When medical assistance benefits are provided or will be provided to a medical assistance recipient because of injury, disease, or disability for which another person is liable, the appropriate division of the Department of Human Services shall have a right to recover from the person the cost of benefits so provided. The department may, to enforce the right, institute and prosecute legal proceedings against the third person who may be liable.
(b) No action taken on behalf of the division pursuant to this section or any judgment rendered in the action shall be a bar to any action upon the claim or cause of action of the recipient, his guardian, personal representative, estate, or survivors against the third person who may be liable for the injury. Nor shall any action operate to deny to the recipient the recovery for that portion of any damages not covered hereunder.
(Emphasis added.) Further, Ark. Code Ann. § 20-77-306 (Repl. 1991) provides in part:
All parties who were legally liable for any or part of any medical cost of an injury, disease, disability, or condition requiring medical treatment for which the medicaid program, established by Acts 1965 (2nd Ex. Sess.), No. 14, § 7 [superseded], has paid, or has assumed liability to pay, shall be liable to the Department of Human Services for the amount of their liability to the extent that the Depart ment of Human Services has paid or agreed to pay.
Thus, it is clear that ADHS has an independent right to recover the cost of benefits provided from persons who are liable for injury to a medicaid recipient.
In the instant case, ADHS sought to intervene in the action filed on behalf of Emily Golden, pursuant to Ark. Code Ann. § 20-77-304 (Repl. 1991), asserting that Emily assigned any recovery from the defendants to ADHS pursuant to Ark. Code Ann. § 20-77-307 (Supp. 1995). Section 20-77-307 provides in part:
(a) As a condition of eligibility, every Medicaid applicant shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to the Arkansas Department of Human Services to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant.
(b) The application for Medicaid benefits shall, in itself, constitute an assignment by operation of law.
(c) The assignment shall be considered a statutory lien on any settlement, judgment, or award received by the recipient from a third party.
Further, § 20-77-304 provides in part:
(a) If either the medical assistance recipient or the division brings an action or claim against a third person, the recipient or department shall, within thirty (30) days of filing the action, give to the other party written notice of the action or claim by personal service or registered mail. . . .
(3) If an action or claim is brought by either the department or recipient, the other may, at any time before trial on the facts, become a party to the action or shall consolidate his action or claim with the other if brought independently,
(Emphasis added.)
The appellees contend ADHS has no independent cause of action; however, that assertion is directly contradicted by § 20-77-301. Further, § 20-77-304(3) clearly contemplates ADHS may become a party to the action brought by the guardians. The trial court erred in denying the intervention; we reverse.
The guardians have also asked that we retax costs pursuant to Ark R. App. P. 6(c) because the appellees filed a Designation of Record which resulted in the inclusion of unnecessary material not used by any parties in this appeal, at an additional cost to appellants of $15,699.50. The appellees point out that the guardians initially listed 23 issues they intended to raise on appeal. The brief filed by the guardians contained only ten of these issues. Appellees further contend that among the issues raised by the guardians were vague and overbroad points which required the designation of virtually all liability testimony. We cannot say that the appellees were unreasonable in their belief that the additional portions of the record were needed for consideration of the issues initially raised by the guardians. Accordingly, the guardians’ motion to retax costs is denied.
Affirmed in part; reversed and remanded in part.
Glaze and Brown, JJ., not participating.
Special Justices James McLarty and W. Kelvin Wyrick join in this opinion. | [
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Per Curiam.
The appellant seeks an extension of time in which to complete and file his record on appeal. Due to the special circumstances in the case, we grant the motion.
On October 23, 1995, we granted appellant’s pro se motion for a belated appeal. Attorney Charles Honey was appointed to represent the appellant and was directed to file a petition for a writ of certiorari to complete the record. The petition was filed on December 11, 1995. We issued the writ to the Ouachita County clerk and court reporter on January 16, 1996, returnable on February 15, 1996. The writ has not been returned.
On January 29, 1996, the appellant filed the instant motion for an extension of time in which to complete and file the record. His motion states that the court reporter who originally recorded the trial proceedings has retired, causing the new reporter to be overloaded.
Ordinarily, we do not allow an extension of time once the clerk and court reporter have been directed to return a writ on a certain date. However, the circumstances in this case are exceptional. One court reporter has retired, leaving a new reporter with an increased burden. Additionally, the appellant’s attorney was appointed only recently and no delays in the case can be attributed to him.
A new writ of certiorari is hereby issued to the clerk and court reporter of Ouachita County, returnable on March 26, 1996.
Motion granted. | [
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Donald L. Corbin, Justice.
Appellant, Benny Reed, appeals a judgment of the Union County Circuit Court convicting him of possession of cocaine with intent to deliver and possession of drug paraphernalia and sentencing him to the Arkansas Department of Correction for forty years and ten years respectively. We granted his motion for rule on the clerk. Reed v. State, 320 Ark. 515, 899 S.W.2d 53 (1995) (per curiam). Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2).
Appellant raises four points for reversal, all of which are claims that he received ineffective assistance of counsel at his jury trial. It is well established that claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court, as on a motion for new trial. E.g., Pipkin v. State, 321 Ark. 511, 905 S.W.2d 827 (1995) (citing Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995)). The rationale behind this rule of law is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Kanig v. State, 321 Ark. 515, 905 S.W.2d 847 (1995).
Appellant did not file a motion for new trial, nor did he raise the issue of his counsel’s ineffectiveness during trial. See Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Because appellant failed to preserve below the issue of ineffective assistance of counsel, we affirm. | [
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Robert H. Dudley, Justice.
Appellant Leo Darrough was convicted in a bench trial of two counts of possession of cocaine with intent to deliver, one count of simultaneous possession of drugs and firearms, one count of possession of marijuana, one count of possession of a firearm by a felon, and one count of maintaining drug premises. In addition, the trial court also revoked appellant’s probation from a prior conviction. We affirm the convictions and the revocation of probation.
I. Crimes Committed on August 17, 1993
At 11:50 p.m., on the night of August 17, 1993, Little Rock police officers executed a search warrant at 822 Rice Street. Upon entering the house, the officers found appellant Leo Darrough and Alice Plummer lying on a bed. In the same bedroom they saw a bag that contained a large, white, rock-like substance and several smaller pieces of the same substance; several pieces of white, rock-like substance in a small bottle; and several pieces of an off-white, rock-like substance sitting on the dresser. The bedroom was only about ten feet by twelve feet. The officers found a bottle containing pieces of a white substance in one of the bedroom closets. They observed a change purse containing three white, rock-like substances on the dining room floor. All of the white substances subsequently proved to be of a cocaine base. The police additionally found a plastic packet containing green vegetable matter on the floor of the bedroom and two small plastic packets of green vegetable matter on top of the entertainment center in the bedroom. These substances were later proved to be marijuana. Both closets in the bedroom had men’s clothing and shoes.
The police had used a confidential informant to purchase drugs with a marked twenty dollar bill at the residence earlier the same day. The person who sold the drugs to the confidential informant was a female. The police found $3,120.00 in cash sitting on a stereo speaker in the bedroom, and the marked money was included in that cash. The officers also found a loaded Winchester .20 gauge shotgun in the living room. Appellant, a felon, admitted that he owned the shotgun, but said he took it to the house to give to Ms. Plummer for her protection.
Appellant told one officer that the residence formerly belonged to his brother, Thomas Darrough, and that he acquired the house upon his brother’s death. He stated that a man had a key to the house and would leave cocaine there and come back later to pick it up. He stated that the cocaine and the large amount of cash found in the house belonged to this man. He thought the man gave money to children for selling drugs. Appellant stated that the man had been coming to his house for approximately six to eight months.
Appellant contends that the State failed to establish that he was in possession of the drugs and shotgun. We have said that in order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is control or right to control the contraband, is sufficient. Id. at 50, 643 S.W.2d at 253. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.
Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband.
Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988).
Here, there was substantial evidence that appellant lived in the house and that he and Alice Plummer were in the bedroom of the house at the time of the search. There was a considerable quantity of drugs and a large amount of cash in open view in the bedroom. The cash included a marked twenty dollar bill that had been used to buy drugs at the same address that same day. A loaded shotgun was nearby. We have no hesitancy in holding that these facts constitute substantial evidence that appellant knew of and had control of the contraband, possessed it with the intent to deliver, had simultaneous possession of cocaine and the firearm, and that he was a felon in possession of a firearm.
II. Crimes Committed on November 2, 1993
On November 2, 1993, Little Rock police officers executed another search warrant at the house at 822 Rice Street and at the adjacent salvage yard. The house was vacant, but the officers found white paper with cocaine residue on the kitchen counter, $309.00 on the bedroom dresser, a test tube with cocaine residue in the kitchen sink, and a razor blade with cocaine residue on the kitchen counter. Officers also found a Waterworks bill for Thomas Darrough.
Detective James King testified that he had seen appellant at the adjacent salvage yard “dozens and dozens of times.” Appellant and two other individuals were at the salvage yard when the police arrived. The police found three bottles that contained a residue of cocaine under the wheel well of a truck that was located east of the shop on the salvage yard. The area where the truck was located was not open to the public, but had a fence around it and had to be entered through a garage.
On the west side of a garage at the salvage yard, on the ground, and in plain view, the officers found a container that contained rocks of crack cocaine. This part of the salvage yard is surrounded by a fence and can be entered only through the garage. Outside the west side of the shop, tucked underneath various items, the police found three more bottles that contained a residue of cocaine. Car parts were strewn all about this area. Detective Dan Chandler testified that he had seen appellant at the salvage yard on numerous occasions and appellant was standing in the open portion of the garage, which was on the south side of the building at the east end, when the police arrived.
Appellant testified that he was at the salvage yard to move his car parts to another location. He testified that he had been evicted in March, and went to the salvage yard every day to move car parts. He testified that the two other individuals who were at the yard were hired that day to help him move the parts.
Appellant contends that the State failed to link him to the drugs found in the salvage yard. The question on review is whether there was substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is “evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture.” Cigainero v. State, 310 Ark. 504, 506, 838 S.W.2d 361, 362 (1992). In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).
There was substantial evidence that appellant was at the salvage yard on a daily basis and was the operator of the yard. The parts in the yard belonged to him. Some of the containers with drugs were found in plain view, while others were hidden inside appellant’s property. Some of the contraband was found hidden in a truck that belonged to appellant. The immediate area was fenced and not readily accessible to others. The two other individuals who were there when the police arrived were only employed that day. The proof was sufficient to infer that the drugs were constructively possessed by appellant and not by the two individuals who were only at the salvage yard for the day. Thus, there was substantial evidence to sustain appellant’s convictions for maintaining drug premises and for possession of cocaine with intent to deliver.
III. Revocation of Probationary Sentence
On July 13, 1993, appellant pleaded guilty to charges of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises, and was sentenced to five years on probation. While on probation he committed the multiple crimes discussed in parts I and II of this opinion. Since we affirm the convictions for the multiple crimes that were committed while he was on probation, we necessarily hold that the trial court had sufficient evidence to revoke the probation of sentence. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).
Affirmed. | [
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Per Curiam.
The appellant pleaded guilty to driving while intoxicated, fourth offense, and was sentenced to two years imprisonment to be followed by five years of probation. His driver’s license was revoked for three years. The judgment and commitment order was filed on August 27, 1993. On May 16, 1994, the appellant filed a petition to vacate sentence pursuant to Arkansas Code Annotated § 16-90-111 (Supp. 1993) and Rule 37 of the Arkansas Rules of Criminal Procedure. He argued that the term of two years of incarceration followed by five years of probation exceeded the statutory maximum allowed by law. The court granted the petition, and on June 6, 1994, the appellant appeared before the Independence County Circuit Court for resentencing. The new sentence was a term of sixty months to be served at the Arkansas Department of Correction. The appellant brings this appeal.
The appellant argues that the trial court erred in the following ways: (1) the trial court failed to set forth particular reasons for increasing the term of imprisonment; (2) it failed to allow him the opportunity to withdraw a previous plea of guilty; (3) it solicited and obtained information regarding pending charges against him, yet failed to consider favorable factors to him; and (4) the two-year imprisonment portion of the original sentence was valid, had already been put into execution, and therefore was not subject to modification. The Independence County Circuit Court’s judgment and commitment order of June 6, 1994, is reversed because the court lacked jurisdiction to resentence the appellant.
The original judgment and commitment order was illegal, as the appellant originally maintained, because the two-year imprisonment followed by a five-year term of probation exceeds the maximum penalty for the offense committed as defined under Ark. Code Ann. § 5-65-111 (b)(3) (Repl. 1993) and because the imposition of probation following a term of imprisonment is prohibited by Ark. Code Ann. § 5-4-104 (Repl. 1993). However, as stated before, the trial court had no jurisdiction to correct the illegal sentence.
The appellant failed to file his May 16, 1994, petition to vacate sentence in a timely manner. Rule 37 has filing deadlines that govern not only Rule 37 petitions but also petitions to correct illegal sentences filed pursuant to Ark. Code Ann. § 16-90-111 (a). Arkansas Rule of Criminal Procedure 37.2(c) states, in pertinent part:
... If conviction was obtained on a plea of guilty, . . . the petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of the entry of judgment.
Arkansas Rule of Criminal Procedure 37.2(b) states, in pertinent part:
. . . All grounds for post-conviction relief from a sentence imposed by circuit court, including claims that a sentence is illegally imposed, must be raised in a petition under this rule.
These filing deadlines are jurisdictional in nature. If they are not met, a circuit court lacks jurisdiction to consider the Rule 37 petition at issue or the petition to correct illegal sentence at issue on its merits. Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993).
The appellant should have filed his petition within ninety days of August 27, 1993, the date that the original judgment and commitment order was entered against him. Because the petition was not filed in a timely manner, the circuit court was required to dismiss the petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Although the provisions of Ark. Code Ann. § 16-90-111 (a) permit a circuit court to correct an illegal sentence at any time, this court has held that this provision is invalid to the extent that it conflicts with Rule 37.2(b). Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995); Harris v. State, 318 Ark. 599 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994). The case is remanded to the Independence County Circuit Court to reinstate the original judgment and commitment order.
Reversed and remanded. | [
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Robert H. Dudley, Justice.
The Probate Court of Ashley County refused to exercise jurisdiction in this multi-state child-custody case. We affirm the decision of the trial court.
Karl and Robin Roseberry lived in Fort Worth, Tarrant County, Texas. They had two little girls, Amanda, born May 5, 1987, and Amber, born on July 29, 1989. In 1992, Karl filed suit for divorce in the Tarrant County District Court. Robin appeared personally and contested the case. Testimony was taken on April 15, 16, and 20, 1992, but by the time the twenty-six page decree was entered on June 19, 1992, Robin resided in Vermont.
The Tarrant County District Court found that it had jurisdiction of the case, in part, because Karl had been a domiciliary of Tarrant County for more than six months. The decree pro vided that Karl was appointed the sole managing conservator, or was granted custody, of the two little girls, and that Robin was appointed the possessory conservator, or was given visitation rights. The decree specified the times for visitation and provided that Karl was required to provide round-trip airline fares for the children from the Dallas-Fort Worth Airport to the Burlington, Vermont, airport for both the summer and Christmas visitation periods with Robin. The district court retained jurisdiction to make further orders. The presiding judge was William Brigham.
In March 1993, Karl filed a motion for custody modification in the Tarrant County District Court. He alleged that Robin was guilty of sexual abuse of the children and asked that unsupervised visitation be denied Robin and that she be enjoined from taking the children outside of Tarrant County. The trial court is not shown to have acted on this motion, and the record does not disclose the reason Karl did not pursue it.
On July, 27, 1994, Robin filed a motion in Tarrant County and, in part, pleaded: “This Court has acquired and retains continuing, exclusive jurisdiction of this suit and of the children the subject of this suit as a result of prior proceedings.” The motion alleged that the two children were in immediate physical danger from Karl. Attached to the motion was the affidavit of Shalene Portman Roseberry, who was Karl’s new wife. The affidavit stated that Karl had severely beaten Shalene on various occasions, had threatened the girls, had physically abused them, had stated that he was going to Vermont to kill Robin, and had extreme outbursts of anger accompanied with violent physical actions.
On July 29, 1994, the Tarrant County District Court, in an ex parte temporary order, removed the care and custody of the children from Karl and placed the girls in the custody of Robin. The order additionally restrained Karl from seeing the children. The district court set a hearing for August 11, 1994, to determine whether the temporary restraining order should be made into a temporary injunction pending final hearing and whether Robin should be made the sole conservator. The presiding judge again was Judge William Brigham.
The temporary order granting care and custody to Robin had not been amended or modified when, on September 29, 1994, Karl was killed in a railroad crossing accident. On that date, the children weré in Tarrant County at the home of Karl’s parents. The record does not disclose how or why the children were there.
Soon after Karl’s death, Karen and Mike Murphy, Karl’s sister and brother-in-law, took the children from Karl’s parents’ home in Tarrant County to their home in Ashley County, Arkansas. Almost immediately, on October 3, 1994, Karen and Mike Murphy filed a petition in the Probate Court of Ashley County for an ex parte order of temporary guardianship of the two girls. They alleged:
Robin Danforth Roseberry has kidnapped the children in the past, has refused to return the children to their father after a visit; has a history of shoplifting and other bizarre behavior; and has lost custody of an older child to her parents because of her neglect. Finally, and most serious of all, Robin Danforth Roseberry has allowed these minor children to be sexually molested by her boyfriend and has participated with her boyfriend in requiring the children to watch sex acts involving the mother and the boyfriend. It is in the best [interest] of the minor children that petitioners be appointed temporary and permanent guardians of the person and of the estate of the minor children.
They asked that the temporary guardianship be made permanent. On the same day, October 3, the Arkansas court appointed Karen and Mike Murphy temporary guardians until the matter could be fully heard on October 6, 1994. Robin had no notice of the proceeding.
On the same day, October 3, but in Tarrant County, Texas, Robin filed a petition for a Writ of Habeas Corpus in which she alleged that the girls were being illegally restrained by Karl’s parents. Judge William Brigham issued the writ commanding Karl’s parents to produce the children before the court on October 6, 1994.
On October 6, the Murphys, who are appellants in this case, and Karl’s parents, Curtis and Delango Roseberry, filed petitions in intervention in the custody action in the Texas court. All four of the intervenors sought custody of the girls for the Murphys.
On the same date, October 6, as the hearing was about to commence in Ashley County, Arkansas, Probate Judge Jerry Mazzanti stated that he had been contacted by Judge William Brigham of the Tarrant County District Court and informed that there had “been an ongoing proceeding there in Texas for a substantial period of time,” and that it was his impression that the Texas court should hear the custody matter. Judge Mazzanti stated that Judge Brigham had not yet had time to forward certified copies of the Tarrant County, Texas, proceedings, but because of the serious nature of the allegations filed in the Arkansas court, he ruled that he would take jurisdiction for consideration of an “emergency order for a period of up to thirty days or until there is a verified order” from Texas, and then the temporary order would then be terminated. Judge Mazzanti heard proof but never entered a formal order. Perhaps the reason was the judge knew Robin had not been given notice of the Arkansas hearing, and that she was proceeding in Texas.
The next day, October 7, in Texas, Judge Brigham issued an “Order on Jurisdiction and Delivery of Minor Children to the Court.” It provides, in part, “IT IS THEREFORE ORDERED that the 233rd District Court of Tarrant County, Texas has continuing jurisdiction and the state of Texas is the home state of the children the subject of this suit.” (Emphasis added.) On October 12, Judge Brigham issued an “Order to Return Children,” which in part provides, “The Court finds that the Applicant, ROBIN LYNN DANFORTH, is the person entitled by law to possession of the children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY and that Respondents, MICHAEL ANDERSON MURPHY, KAREN LEANN MURPHY, CURTIS ROSEBERRY, and DELANGO (JANIE) ROSEBERRY, have illegally confined and restrained the children.” As a result of the illegal restraint of the children, and the interventions of the Murphys and Karl’s parents, the Tarrant County District Court awarded Robin a judgment against the Murphys and Karl’s parents for $1,340.00, plus $238.00 costs. On November 9, 1994, in the final custody order, Judge Brigham decreed, “IT IS ORDERED AND DECREED that ROBIN LYNN DANFORTH is the person entitled by law to possession of the children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY.”
On December 12, 1994, the Tarrant County District Court set the petitions for intervention for hearing on January 23, 1995. On January 23, 1995, an associate judge of the Tarrant County District Court filled out a “Report for Modification” which provides that the petitions for intervention filed by the Murphys and Karl’s parents were moot and “Court further finds that all information involving the children is now in Vermont and this is not a convenient forum. Ordered that intervention is dismissed.” The associate judge’s report was approved by Judge Brigham on January 24.
On March 1, 1995, the Murphys filed a motion asking the Arkansas court to reconsider its earlier order refusing to exercise jurisdiction since the Texas court said the case was no longer pending there. A hearing was set for April 17, 1995. Robin filed a motion to dismiss. Both parties were represented at the hearing on the motion to reconsider. Counsel agreed that the children had been in Vermont since October 1994, and that the Vermont Family Court had scheduled a hearing for May 11, 1995, on a petition for custody that had been filed by the Murphys. Judge Mazzanti ruled that on October 3, 1994, the date the Murphys filed their petition for a temporary guardianship in Arkansas, Texas was the home state of the girls pursuant to the Parental Kidnapping Prevention Act of 1980 and, as a result, dismissed the motion to reconsider.
Even though this case involves a petition for guardianship, rather than the more usual chancery court determination of child custody, the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, (1994), is applicable because the Murphys sought to be appointed temporary guardians, with the temporary appointment to be made permanent; thus, it would have the effect of permanently determining custody and would interfere with the Texas court’s custody orders. See 28 U.S.C. 1738A(b)(3). On appeal, the Murphys first contend that under the P.K.P.A. the Texas court improperly exercised jurisdiction because (1) Karl was deceased and, under Texas law, the pending case between him and Robin was abated; and (2) Texas did not meet the criteria of the P.K.P.A. as set out in 28 U.S.C. § 1738A(c)(2) because no contestant continued to live in Texas after Karl’s death.
The Murphys’ argument that the Texas court did not have jurisdiction ignores a number of critical facts. On July 29, 1994, Robin again entered her personal appearance in the Tarrant County District Court and pleaded that court “has acquired and retains continuing, exclusive jurisdiction of this suit and of the children.” On the same date, the Tarrant County Court gave temporary custody of the children to Robin, and set a hearing for August 11 to determine whether Robin should be given permanent custody. The order had not been amended when, on September 19, Karl was killed. The children were in Tarrant County on that day. By October 3, the children had been temporarily taken to Ashley County, where they remained for only a few days. On October 3, the Murphys filed their petition for a temporary guardianship in Ashley County, but on the same day Robin filed a petition in Tarrant County asking that the children be returned to her. On October 6, Judge Brigham issued a Writ of Habeas Corpus. This same day, October 6, is the date Judge Mazzanti refused to exercise jurisdiction in Ashley County. The next day, October 7, Judge Brigham ruled that the Tarrant County District Court “has continuing jurisdiction and the state of Texas is the home state of the children.” (Emphasis added.) On October 11, 1994, the Murphys filed a petition in intervention in Tarrant County. On the same day, October 11, 1994, Robin, the Murphys and Karl’s parents appeared in the Tarrant County District Court and the court granted Robin a personal judgement against the Murphys and Karl’s parents in the amount of $1340.00, plus costs in the amount of $238.00 for expenses she incurred in attempting to find her children. Robin’s attorney was awarded a judgment against the Murphy’s and Karl’s parents for $1,912.50. On November 9, 1994, Judge Brigham found that the children were in possession of the Family Court Services in Tarrant County Texas and ruled that Robin was entitled to permanent custody of the children. It was not until over a month later, on December 12, 1994, after Robin and the children were in Vermont, that the Texas court ruled that “all information involving the children is now in Vermont and this is not a convenient forum.”
The P.K.P.A. hierarchy of jurisdictional preferences is: (1) continuing jurisdiction; (2) home-state jurisdiction; (3) significant-connection jurisdiction; and (4) jurisdiction when no other jurisdictional basis is available. 28 U.S.C. § 1738A(c); Jeff Atkinson, Modern Child Custody Practice, § 3.24 at 165 (1986).
Tarrant County fits within the first category. It had continuing jurisdiction. The original custody decision was made there, as were the first and the second modifications of custody, and the Texas court retained jurisdiction to make further orders affecting the children. All of the parties to this action were there before the Texas court when the final custody order was entered, and the Texas court ruled that it had continuing jurisdiction.
In addition, the Tarrant County District Court ruled that Texas was the home state of the children. See 28 U.S.C. § 1738(b)(4). The record does not reflect that these rulings were ever appealed.
Even if continuing jurisdiction and home state jurisdiction were not in Texas, it was also the state which met the third criterion, a significant connection. Robin, entered her personal appearance in Tarrant County when she petitioned for a change of custody, that petition was still pending on the date of Karl’s death, and the children were still in that jurisdiction on the date of Karl’s death. The Murphys and Karl’s parents filed a petition in intervention there. They appeared there. When home-state jurisdiction is not available, a jurisdiction with a significant connection can exercise jurisdiction. 28 U.S.C. 1738A(c)(2)(B). Manifestly, the connection was significant enough for the Texas court to award Robin a personal judgment against the Murphys and Karl’s parents for $1340.00, plus $238.00 costs.
Finally, the P.K.P.A. prohibits a court from exercising jurisdiction if another court is already exercising jurisdiction consistent with the provisions of the act. 28 U.S.C. 1738A(g). The purpose of this last provision is to avoid the “havoc wreaked by simultaneous and competitive jurisdiction.” Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983). The Texas court was providently exercising jurisdiction when the Arkansas court appropriately refused to interfere.
Even so, the Murphys contend that the Arkansas court erred in failing to exercise emergency jurisdiction. The P.K.P.A. and the Uniform Child Custody Jurisdiction Act, Ark. Code Ann. § 9-13-201 to - 228 (Repl. 1993), both contain language providing for jurisdiction to be exercised on an emergency basis. The language of the two acts is almost identical in this regard. Under either act, the only requirements for an emergency order are the physical presence of the child and the existence of a genuine emergency such as abandonment or abuse. 28 U.S.C. § 1738A(c)(2)(C); Ark. Code Ann. § 9-13-203(a)(3) (Repl. 1993). However, emergency powers under both of the acts are limited. Emergency jurisdiction should not be used to modify a custody order permanently. Mitchell v. Mitchell, 437 So. 2d 122, 127 (Ala. Civ. App. 1983). Emergency jurisdiction may be used to enter a temporary order giving a party custody only for as long as it takes to travel with the child to the proper forum to seek a permanent modification of custody, usually the home state. Atkinson, Modern Child Custody Practice, § 3.18 at 148. In Iacouzze v. Iacouzze, 672 P.2d 949 (Ariz. Ct. App. 1983), aff'd, 672 P.2d 928 (Ariz. 1983), the appellate court affirmed the trial court’s decision to give the mother temporary custody for the time it took her to commence proceedings in the child’s home state of New Jersey. In Nussbaumer v. Nussbaumer, 442 So. 2d 1094, 1097-98 (Fla. Dist. Ct. App. 1983), the appellate court reversed a permanent change of custody and directed that on remand the trial court could enter a temporary order “for a period of time no longer than is reasonably necessary to allow the father to present his allegations of neglect ... to the proper . . . court”. Professor Atkinson suggests:
A circumstance in which permanent modification might be appropriate in a state exercising emergency jurisdiction would be if the evidence of the mistreatment or abuse was available in the state exercising emergency jurisdiction, but was not available or difficult to obtain in the child’s home state. The problem of availability of evidence, however, can be solved by taking testimony in one state and having it transmitted to another state.
Atkinson, Modern Child Custody Practice, § 3.18 at 148, n.170.
Here, the Murphys asked the Arkansas court to make them temporary guardians and, after a full hearing, to make them the permanent guardians. Thus, they sought a permanent change in custody under the exercise of emergency jurisdiction. The Murphys made no suggestion that all of the evidence could not be produced in Texas, and, in fact, the Murphys returned the children to Texas, and filed their petition in intervention there. Thus, the Arkansas court correctly refused to exercise emergency jurisdiction.
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Robert H. Dudley, Justice.
Plaintiff William V. Alexander, Jr. filed this suit on June 11, 1993, alleging that defendant John Flake committed fraud, breach of fiduciary duty, and fraudulent concealment in the development of a real estate project in Boulder, Colorado. Defendant Flake later moved for summary judgment. The primary issue was whether the three-year statute of limitations had run by the time suit was filed. The trial court ruled that the suit was barred. Plaintiff appeals. We affirm the ruling of the trial court.
Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Hampton v. Taylor, 318 Ark. 771, 776, 887 S.W.2d 535, 538 (1994). Our review is limited to examining the evidentiary items presented below and determining whether the trial court correctly ruled that those items left no material facts disputed. Id. at 777, 887 S.W.2d at 539. The facts must be viewed in the light most favorable to the party against whom the motion was filed, and all doubts and inferences are resolved against the moving party. Id.
A defense of limitation is an affirmative defense. When it is clear on the face of the complaint that the action is barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was tolled. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S.Ct. 290 (1992).
Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Miles v. A. O. Smith Harvestore Prods., Inc., 992 F.2d 813, 817 (8th Cir. 1993). The statute of limitations for fraud and breach of fiduciary duty actions is three years. Ark. Code Ann. § 16-56-105 (1987); Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994); Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993). Plaintiff Alexander filed this lawsuit on June 11, 1993. Conse quently, for the complaint to have been timely filed, plaintiff must neither have known, nor been able to discover through reasonable diligence, the alleged fraud before June 11, 1990.
I. Statute of Limitations
The parties filed extensive affidavits, exhibits, depositions, and briefs in the trial court. A review of those documents reveals the following facts.
A. Undisputed Facts
Plaintiff Alexander is an attorney licensed to practice before the Bars of Arkansas, Tennessee, and the District of Columbia. After graduating from Vanderbilt Law School, he served as a law clerk for a federal district judge. He then practiced law for seven years. He was a member of Congress for twenty-four years. He has the capacity to understand legal documents.
In November 1984, plaintiff and five other men, including defendant Flake, signed a general partnership agreement to form Boulder Properties I. The purpose of the partnership was to develop a condominium complex in Boulder, Colorado. Under the terms of the partnership agreement, plaintiff Alexander had a profit or loss percentage of 16.667%. The partnership financed the project through Twin City Bank of North Little Rock by executing a promissory note in the amount of $5,150,000. The partners executed this “first” guaranty agreement under which the partners were jointly and severally liable for full payment of the note. Thus, in 1984, plaintiff Alexander, along with each of the others, was jointly and severally liable for the five-million dollar debt.
The real estate market in Boulder deteriorated, and the condominium units did not sell as the partners had anticipated. In April 1987, the partnership executed another guaranty agreement, the “continuing” guaranty agreement, under which each of the partners reduced his liability to 125% of his pro rata share of the partnership. Under the continuing guaranty, plaintiff and defendant each guaranteed 20.83% of the amount of the note. At the same time, the principal amount of the note was reduced to $3,500,000. Thus, under the “continuing” guaranty, the amount of plaintiff’s joint and several liability was reduced.
David McCreery, the managing general partner, sent memoranda to each partner, before and after the execution of the continuing guaranty, outlining the financial problems of the project, initially expressing belief that the project ultimately would be successful; informing the partners of their share of marketing expenses due; informing the partners that they must seek financing for their personal amount of the debt; informing the partners that it would be necessary for them to make monthly payments on the current interest due to the Twin City Bank; discussing the continuing guaranty; discussing the shortfall of the property; and discussing the possibility of the partners providing individual letters of credit for their pro rata share of the shortfall.
As early as January 1987, the memoranda expressed concern over the success of the project. In March 1987, one of McCreery’s memoranda stated, “I can’t tell you how I regret that this development did not turn out the way we all had intended for it to, but markets change and we got involved in a market that deteriorated about the time that we started construction.” In September 1987, McCreery’s memorandum to the partners stated that he calculated the shortfall on the loan to be $600,000, but that Twin City Bank was requesting a letter of credit in the amount of $1,150,000. The memorandum stated that each partner’s decision to provide a letter of credit or other collateral for his pro rata share was his personal decision. This memorandum also referred to the fact that the loan was on the bank examiners’ list of criticized loans.
Plaintiff Alexander wrote a letter to Twin City Bank in November 1987, in which he proposed collateral in Mississippi County for his 16.6% interest in the Boulder property. This was more than four years before suit was commenced. Plaintiff also made numerous payments to the partnership for monthly interest assessments in accordance with the memoranda. Plaintiff obtained a loan of $259,250 from Twin City Bank in May 1988, to cover his part of costs associated with Boulder Properties.
In 1990, the development sold for a loss. Plaintiff failed to satisfy his obligations to Twin City Bank, and the bank filed a foreclosure suit against plaintiff in Mississippi County, the venue of the collateral.
B. Plaintiff’s Allegations of Fact
Plaintiff’s affidavits and other evidentiary matters, which we must accept as true in reviewing the grant of summary judgment, reflect the following. In the early 1980’s, defendant Flake and Congressman Alexander became friends through their mutual interest in politics. Defendant would call plaintiff frequently to discuss state political issues as well as matters pending in Congress. Plaintiff believed defendant was a concerned citizen with a genuine interest in public policy.
In their conversations, plaintiff told defendant that he had very limited funds for investment and had little time to spend on looking after his investments. Defendant stated that plaintiff could join in some of his investments, and together they made several investments. Defendant brought plaintiff into five different business ventures and told him of the transactions only after the fact. The first of these investments included use of a non-recourse promissory note. Defendant knew that plaintiff did not know the details of the ventures and did not have the time or inclination to learn about them. Defendant always reported to plaintiff that the various ventures were going well.
In 1984, defendant entered plaintiff in the Boulder I partnership. Defendant knew that plaintiff would not review the various documents before signing them and that it was defendant’s responsibility to review the documents. Once defendant sent the documents to plaintiff, plaintiff considered the documents to have defendant’s stamp of approval, and he routinely signed and returned them to defendant without reading them. At times, defendant sent only the signature page of documents. In numerous phone calls extending through 1991, defendant continued to discuss the Boulder project in glowing terms.
In 1987, defendant told plaintiff that he would send him a document for his signature. Defendant stated that the document was merely a formality that the bank needed. The document was the continuing guaranty which reduced both plaintiff and defendant’s liability to 20.83% of the loan. Plaintiff contends that had he realized that the continuing guaranty reduced defendant Flake’s liability he would not have signed it.
Plaintiff learned from the memoranda that the project needed more money, but he still believed, because of the representations of defendant, that he had no exposure or liability to the bank. Defendant later requested that plaintiff sign a note, and he did so only after defendant assured him that the note was just something needed for the bank’s records. At that point, plaintiff continued to believe the project was profitable and that he had no personal liability.
In support of his contention that a fiduciary relationship existed, plaintiff averred that, in 1984, following the closing of a transaction on property unrelated to the partnership, defendant purchased a certificate of deposit as plaintiff’s trustee. When the certificate of deposit matured, the funds were sent to plaintiff. Further, in 1990, defendant contacted a certified public accountant to discuss the manner of handling plaintiff’s finances.
In February 1990, plaintiff became aware of the gravity of the investment in the Boulder I partnership. In the fall of 1991, plaintiff discovered that defendant had interests adverse to his, and that defendant took steps to reduce his own exposure at the time he caused plaintiff to sign the continuing guaranty. In February 1993, after reviewing documents with his attorney, plaintiff discovered that defendant had breached his duty and obligation to him.
C. Facts Applied to Law
Plaintiff contends that the trial court erred in ruling that this action is barred by the statute of limitations because an issue of material fact exists about whether defendant concealed his fraud and breach of fiduciary duty.
Plaintiff signed the general partnership agreement in November 1984, and signed the continuing guaranty, the document which is the basis for this suit, on April 27, 1987. It is undisputed that plaintiff received numerous memoranda reporting the financial condition of the partnership both before and after signing the continuing guaranty. Plaintiff made payments to the partnership and obtained financing to cover costs associated with the partnership throughout 1987, 1988, and 1989. Plaintiff admits that he signed the partnership agreement and continuing guaranty agreement, but averred that he did not read them. He also averred that he did not read the numerous memoranda which would have informed him of the financial condition of the partnership. Plaintiff’s failure to read the partnership agreement, the continuing guaranty, and the memoranda show a lack of reasonable diligence.
In First Pyramid Life Insurance Co. v. Stoltz, we wrote:
Even if there was evidence of fraud on the part of First Pyramid, and there is none, the statute of limitations would still have run on this claim. “Fraud does suspend the running of the statute of limitations, and the suspension remained in effect until the party having the cause of the action discovers the fraud or should have discovered it by the exercise of reasonable diligence.”
311 Ark. at 318, 843 S.W.2d at 845 (emphasis in the original) (citations omitted). The opinion quotes the “classic language on this point,” as follows:
No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.
Id. at 319, 843 S.W.2d at 845 (citations omitted).
In Wilson v. General Electric Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992), the plaintiffs leased a car for five years and alleged that they were told they could return the car in three years and owe nothing further on the lease agreement. The plaintiffs also alleged they were told they would not have to purchase excess mileage coverage since they would be returning the car early. After plaintiffs used the car for three years and the car reached the mileage limitation, they attempted to return it. The defendants would not accept return of the car. The plaintiffs learned that the contract, which they had not previously read, contained a clause that provided a formula for determining an early termination charge. The plaintiffs filed a com plaint alleging intentional misrepresentation and usury three years and four months after signing the contract. The trial court granted summary judgment for the defendant based, in part, on the ruling that the claim was time-barred. The plaintiffs asserted that the statute of limitations was tolled by fraudulent concealment of the misrepresentation at the time they signed the lease agreement. We affirmed the ruling of the trial court, stating that the statute of limitations was suspended only until the fraud, if any, was or should have been discovered with the exercise of reasonable diligence. In so holding, we wrote:
In sum, the Wilsons did not fulfill their duty to exercise reasonable diligence in examining the contract they executed to uncover what they alleged was a fraudulent misrepresentation by the leasing manager, so they cannot now complain that the statute of limitations should have been tolled. To the contrary, the evidence shows that they knew or should have known of the contract’s actual provisions, so there was no genuine issue of material fact precluding summary judgment.
Id. at 89, 841 S.W.2d at 621.
Similarly, in the case at bar, appellant did not fulfill his duty to exercise reasonable diligence in examining the agreements or in reading the memoranda provided to him. Consequently, he cannot avail himself of the benefit of tolling based on fraudulent concealment.
Plaintiff relies on the case of Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992), in which the plaintiff signed a lease for retail space after being assured by the defendant leasing agent that a Wal-Mart store would remain in the shopping center. Shortly after the lease was signed, an article appeared in the local newspaper stating that Wal-Mart was relocating elsewhere. The plaintiff was not aware of the article. The plaintiff later heard a rumor that Wal-Mart was relocating and asked the defendant listing agent if it were true. The agent told her that Wal-Mart would remain in the center. At a meeting of the shopping center merchants, the defendant listing agent told the merchants that WalMart was remaining in the center. A month later Wal-Mart relocated. Plaintiff filed suit. The trial court granted the defendants’ motion for summary judgment, finding that the statute of limi tations was not tolled by fraudulent concealment because, following the publication of the newspaper article, the plaintiff knew or with reasonable diligence could have discovered that WalMart was relocating. We reversed. The proof showed that plaintiff relied on the statements by the listing agent and did not see the article. Therefore, an issue of material fact existed as to whether the article should have put the plaintiff on notice and required her to investigate to determine whether Wal-Mart was moving.
That case is clearly distinguished from the case at bar because, in that case, the defendant did not provide plaintiff with documents that contained the allegedly concealed information. The plaintiff might have read the newspaper article, and it might have put plaintiff on notice; that was a material issue of fact. Here, plaintiff signed the partnership agreement that made him a general partner and made him subject to liability. He signed the first guaranty and the continuing guaranty. He is bound to know the content of the documents he signed. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991); see also Stone v. Prescott Special Sch. Dist., 119 Ark. 553 (1915). Additionally, the memoranda outlining the condition of the project, advising the partners that they needed to obtain financing and informing them of their share of expenses due, were sent directly to plaintiff. The evidence conclusively proved that, even if plaintiff did not know of the fraud prior to June 11, 1990, he could have discovered it by exercising reasonable diligence.
The trial court additionally ruled that summary judgment was granted because plaintiff failed to show one of the elements of fraud and failed to show a breach of fiduciary duty. Plaintiff assigns those rulings as error, but we do not reach the assignments since we affirm the trial court’s ruling on the basis of the running of the statute of limitations.
II. Summary Judgment Prior to Completion of Discovery
In his final argument plaintiff contends that the trial court erred in granting summary judgment before he was able to submit some records from the Federal Deposit Insurance Corporation. At the hearing on the motion for summary judgment, plaintiff asked the trial court to refrain from ruling on the motion until he obtained a protective order and then could submit some FDIC records and an affidavit by an expert witness. He stated that the affidavit was prepared and he could file it with the court if the court entered the protective order on that day. The trial court entered the protective order on the day of the hearing as requested. The summary judgment was granted upon “consideration of the pleadings, affidavits, and other materials both in support of and in opposition to the Motion for Summary Judgment (including without limitation certain materials submitted by the plaintiff after the hearing).” The FDIC records were submitted after the hearing; therefore, plaintiff’s argument most likely is lacking for a factual basis. However, even if the trial court should not have considered the FDIC records, we would not reverse.
Whether to grant a continuance to allow for further discovery is a matter within the discretion of the trial court. ARCP Rule 56(f); Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). In order for this court to reverse the trial court’s denial of the continuance, the appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case. Id. Plaintiff has not demonstrated that the trial court abused its discretion in granting the summary judgment prior to the completion of all discovery or that the additional discovery would have changed the outcome of the case.
Plaintiff relies on First National Bank v. Newport Hospital and Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984). That case was a medical malpractice case, and the plaintiff had the burden of proving, by expert testimony, that her injuries were caused by the failure of the defendant to exercise the degree of skill and learning possessed by other physicians engaged in the same kind of practice in similar localities. The trial court granted the defendants’ motion for summary judgment based on the lack of expert testimony to support the plaintiff’s claims prior to the defendant producing medical records which the plaintiff had requested in discovery. We reversed and stated that there was no suggestion of lack of diligence on the part of the plaintiff or any reason to challenge the relevancy of the discovery sought. We concluded:
Where, as in this case, the decision of a question of law by the Court depends upon an inquiry into the sur rounding facts and circumstances, the Court should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.
Id. at 336, 663 S.W.2d at 744 (quoting Palmer v. Chamberlin, 191 F.2d 532 (5th Cir. 1951)). Unlike First National Bank v. Newport Hospital and Clinic, the facts in the case at bar were sufficiently developed for the trial court to determine whether summary judgment was appropriate.
Plaintiff asserts that the FDIC records, the affidavits, and the depositions were relevant to show that defendant had a motive to shift liability from himself to plaintiff in the continuing guaranty. While such evidence may have supported plaintiff’s theory of the case had it gone to trial, it does not change the fact that plaintiff did not show damage or justifiable reliance, two elements necessary to a cause of action based on fraud. Motive is not an element of fraud. See Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). Nor does it establish a fiduciary relationship or breach of that relationship. Thus, plaintiff has not demonstrated that postponing the ruling for further discovery would have enabled him to rebut the motion for summary judgment. In addition, plaintiff has not shown that he was diligent in obtaining the additional discovery. See Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).
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Andree Layton Roaf, Justice.
Appellants, Jim Guy Tucker, and others, appeal from an order of the Pulaski County Chancery Court which declared that the public school financing system then in effect violated the equal protection and education provisions of the Arkansas Constitution.
Appellants raise two points on appeal: the trial court erred by 1) misapplying the equal protection and education provisions of the Arkansas Constitution; and 2) incorrectly applying statistical measures of equity. As the ruling by the chancellor does not constitute a final appealable order, we dismiss the appeal.
Facts
On September 19, 1994, appellees Lake View School District (“Lake View”) and various of its students and patrons filed an amended complaint against Governor Jim Guy Tucker, the State Board of Education and its members, the State Treasurer, Speaker of the House of Representatives, Senate President Pro Tempore, and the Director of the Department of Education (“the State”). The complaint alleged that the system of school funding then in place violated the Arkansas constitutional guarantees of equal protection and of a general, suitable, and efficient system of education. The complaint also asserted that the funding system violated the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. Lake View sought declaratory and injunctive relief, mandamus against the State to enact a constitutional system of school funding and to increase funding for public schools, nominal damages, attorney’s fees, and costs.
After a trial on the merits before Chancellor Annabelle Clinton Imber, involving numerous witnesses and exhibits, the chancellor issued 147 findings of fact and eighteen conclusions of law on November 9, 1994. She determined that the school fund ing system was constitutional under the United States Constitution and dismissed with prejudice Lake View’s claims in that regard. However, she ruled that the funding system was in violation of the equal protection provision of the Arkansas Constitution, “as it has no rational bearing on the educational needs of the district,” and that the system also violated the education provision of the Arkansas Constitution by “failing to provide a general, suitable, and efficient system of free public education.” The chancellor stayed the effect of her decision for two years to allow the General Assembly time to enact and implement appropriate legislation in conformity with her opinion.
The General Assembly subsequently enacted new school funding statutes, Acts 916 and 917 of 1995, which effectively repealed the funding system at issue in this appeal.
There are three questions raised by the posture of this case and by the chancellor’s decree which would all have to be answered in the affirmative for us to reach the merits of this case — whether the order entered by the chancellor was a final, appealable order, whether the chancellor had jurisdiction to hear the case, and whether the enactment of a new school funding system renders this matter moot. We conclude that there has been no final order entered in this action.
Finality of Order
Because the chancellor stayed for two years the effect of her decision finding the school funding system unconstitutional, and declined to grant Lake View any of the specific remedies requested, we must consider whether the decision is a final, appealable order. This is a requisite for appellate jurisdiction, which we have a duty to determine. See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994); Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993).
We first note that the question of whether the chancellor can stay the effect of her decision finding the statutes unconstitutional is not before us. The State does not raise this issue and Lake View has not filed a cross appeal or even a brief in this case.
For a judgment to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). To be final, an order must not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). See also Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987).
The case primarily relied upon by the parties and the trial court on the questions of substantive law, Dupree v. Alma School Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983), appears to be precisely on point and was also tried before a chancellor. However, the issue of finality was not presented by the chancellor’s award of declaratory relief in Dupree. There, eleven school districts brought a class action suit against members of the Arkansas State Board of Education, charging, as in the present case, that the system of school financing then in effect violated the Arkansas Constitution’s guarantee of equal protection and its requirement that the state provide a general, suitable and efficient system of education. The trial court declared the system to be in violation of the constitutional provisions in question, and this Court affirmed that decision. The opinion in Dupree does not indicate whether any further relief was sought by the appellee school districts, however, the effect of the trial court’s order was not stayed, and the chancellor’s decision granting declaratory relief was a final order.
Here, as in Dupree, the chancellor made a final determination that the school funding system was unconstitutional. However, she stayed the effect of her decision to allow the General Assembly to implement a constitutional system, and consequently did not consider the constitutionality of the individual elements of the system, nor did she address Lake View’s requests for injunctive relief and mandamus. The chancellor’s failure to grant the specific relief requested by the prevailing parties was in effect a deferral; she provided in her decree that the two-year stay was to “give the State of Arkansas time to enact and implement appropriate legislation in conformity with this opinion.” By the terms of the decree, Lake View could request further hearings at the end of two years to determine if the new funding system conforms to the chancellor’s ruling, or had the State failed to take any action at all. Lake View’s rights in this matter have not been concluded and they have no way to put the chancellor’s directive into execution without further proceedings before the trial court; the requirements for finality are thus not met.
Jurisdiction and mootness
Because we dismiss this appeal for lack of a final order, we need not reach the issues of whether the chancellor had jurisdiction to hear the case, or whether the enacting of a new funding system has rendered this matter moot. However, we point out that the matter of jurisdiction may again arise if further proceedings before the trial court result in another appeal of this case. The issue of subject-matter jurisdiction, like that of finality, is one that we raise on our own motion. Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995). As to mootness, we note that repeal of the funding system declared unconstitutional does not become effective until July 1, 1996. Act 917 of 1995, § 15(b).
Appeal dismissed.
Glaze, J., concurs, and Brown, J., dissents.
The chancellor entered an order on December 21, 1994, amending the findings of fact and denying Lake View’s request for specific remedies and for the funding system to be set aside. However, Lake View’s motion to modify the findings of fact was untimely pursuant to Ark. R. Civ. P. 52 and we determined this December 21, 1994 order to be a nullity. See Tucker v. Lake View Sch. Dist., 321 Ark. 618, 906 S.W.2d 295 (1995). The State made a timely request to modify the findings of fact, and a separate valid order was entered December 21, 1994, pursuant to this request.
Dupree was decided on May 31, 1983. “The School Finance Act of 1984,” Act 34 of 1983 (Ex. Sess.), codified as Ark. Code Ann. §§ 6-20-301 — 319, (Repl. 1993), was approved on November 1, 1983 in a special legislative session. The emergency clause to the act provided that:
In view of the fact that the Arkansas school finance system, . . . has been invalidated by the Court; that the Court’s ruling on this matter has been reviewed and upheld by the State’s Supreme Court; that state funds for the support of the state’s public elementary and secondary schools are now being allocated and distributed under a system which has been declared unconstitutional; and that there is a pressing need to implement a constitutional system of school finance for Arkansas schools at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after January 1, 1984. | [
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Tom Glaze, Justice.
This case arose initially from a workers’ compensation injury claim by Victor Cox against his employer Express Temporary Services (Express). Express had assigned Cox as temporary contract help to Tri-State Iron and Metal Company (Tri-State) to perform duties as a tire stripper. However, Cox was operating a forklift for Tri-State when he was injured, so Express and its workers’ compensation insurance carrier, National Union Fire Insurance Company (National), brought Tri-State into the action, alleging Tri-State was the actual employer and liable for Cox’s claim. Eventually, an administrative law judge and the Workers’ Compensation Commission held Express was Cox’s general employer and therefore liable for his workers’ compensation claim.
During the pendency of Cox’s workers’ compensation claim, he filed a negligence suit against Tri-State in the Miller County Circuit Court. Because National had paid Cox over $20,000 in workers’ compensation benefits, it intervened in this action to preserve its statutory lien rights under Ark. Code Ann. § 11-9-410 (Supp. 1993). Tri-State moved to dismiss this negligence action, contending Cox’s rights and remedies were exclusively covered under the Workers’ Compensation Act as provided under that act’s exclusivity statute, Ark. Code Ann. § 11-9-105 (1987). The circuit court agreed with Tri-State and dismissed the negligence suit. Before the trial court’s dismissal order was filed, National amended its complaint-in-intervention, asserting Tri-State had breached its contract with Express because TriState had worked Cox as a forklift operator rather than a tire stripper. Cox did not join National’s amended complaint which the trial court dismissed as untimely, nor does he participate in National’s appeal of the trial court’s rulings.
National’s primary point for reversal of the Miller County Circuit Court’s decisions is that the court erred in holding § 11-9-105, the exclusivity provision of the Workers’ Compensation Act, barred suit against Tri-State. National argues that, under Ark. Code Ann. § 11-9-410 (Supp. 1993), the act does not affect the right of an employee to bring an action against a third party who is not an employer. In sum, National submits that, because the commission found Express to be Cox’s employer for purposes of paying his workers’ compensation benefits, Tri-State was not an employer within the meaning of the act’s exclusivity provision, and Tri-State was collaterally estopped from arguing it was in the circuit court negligence action.
The flaw in National’s argument is the commission did not find Tri-State was not an employer. Instead, the commission found that Tri-State was a “special employer,” but under the facts of this case, Tri-State was not liable for workers’ compensation coverage. The commission analyzed Express’s and TriState’s status under the dual-employment doctrine, and in doing so relied on Daniels v. Riley’s Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), where this court stated the following:
When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer, and
(c) The special employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both the general and special employers, both employers are liable for workers’ compensation. See, IB Larson, The Law of Workmen’s Compensation, § 48.00 (1995).
Obviously, in analyzing both Express’s and Tri-State’s status under the Workers’ Compensation dual-employment doctrine, both very well could have been liable under the act for Cox’s on-the-job injuries; however, that did not happen here. There simply was no separate contract for hire between Cox and his special employer, Tri-State, so Tri-State did not have to share in paying Cox’s workers’ compensation benefits. Additionally, nothing in the act reflects that its exclusivity provision is not applicable to Tri-State as a “special employer,” since Tri-State might well be liable for workers’ compensation claims if the three conditions in Daniels are met. See also Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993) (implied contract found to meet first “contract for hire” criteria of the dual employment doctrine).
The present case is similar to Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972), and that case is helpful in analyzing the factual situation. There, Joyce Beaver worked for Kelly Girl, Inc., a company whose business was supplying temporary workers to other businesses. While on temporary assignment to Jacuzzi Brothers, Beaver slipped and fell, sustaining injuries. She claimed and received workers’ compensation benefits from Kelly Girl, but also filed a diversity, negligence action in federal court against Jacuzzi Brothers. The federal district court held Beaver’s sole remedy was under the Arkansas Workers’ Compensation Act. Although the Eighth Circuit Court of Appeals never specifically mentioned the dual-employment doctrine by name, it stated the following:
As a matter of common experience and of present business practices in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work. Biggart v. Texas Eastern Transportation Corp., 235 So.2d 443 (Miss. 1970).
As Jacuzzi Brothers was an employer within the meaning of the statute, plaintiff’s sole remedy is that provided by the Workers’ Compensation Law.
Although in Beaver, the court never discussed Jacuzzi Brothers in terms of “special employer,” other jurisdictions have. For example, the court in Thompson v. Grumann Aerospace Corp., 578 N.Y.S.2d 106 (Ct. App. 1991), considered a situation where the plaintiff’s general employer assigned plaintiff to work for Grumann. One year later, the plaintiff was injured while working for Grumann. The Beaver court ultimately held that the plaintiff’s receipt of workers’ compensation benefits from his general employer was his exclusive remedy and barred her bringing a negligence action against special employer Grumann. See also Sorenson v. Colibri Corp., 650 A.2d 125 (R.I. 1994); Supp v. Erie Ins. Exchange, 479 A.2d 1037 (Pa. Super. 1984).
In concluding the trial court correctly dismissed National’s negligence action against Tri-State as being barred by the Arkansas Workers’ Compensation Act, National’s second argument must fail as well. In that argument, National urges the trial court erred in dismissing its amended complaint below which alleged Tri-State had breached its contract with Express since Tri-State used Cox as a forklift operator, not a tire stripper. Because we hold Tri-State was a special employer and falls within the exclusivity provision of the Worker’s Compensation Act, neither a negligence nor contract action can be filed against Tri-State by Cox or National as a subrogee because the exclusivity provision makes no exceptions for contract actions. Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991). Moreover, National may not bring an action under § 11-9-410(b) because that section only provides for a carrier liable for compensation to maintain an action in tort, not contract, and then, only against a third party, not an employer. Finally, National may not bring a contract action as subrogee of its insured, Express, because Express never brought a contract action.
Affirmed.
Jesson, C.J., not participating. | [
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Per Curiam.
Appellant Johnny Martin, by his attorney, has filed for a rule on the clerk.
His attorney, Robert Meurer, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Donald L. Corbin, Justice.
Appellant, Brenda Hertlein, as administratrix of the estate of Edward Hertlein, deceased, appeals the order of the Logan County Circuit Court granting summary judgment for appellee, Philip Tippin, M.D., on the ground that the statute of limitations expired prior to the commencement of this action for damages caused by medical injury to appellant’s decedent. In its order, the circuit court also granted summary judgment for St. Paul Fire and Marine Insurance Company, however, appellant raises no argument as to that part of the circuit court’s order. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and (16). Appellant’s sole point for reversal is that the trial court applied the wrong statute of limitations. We affirm the trial court’s judgment.
Where the operative facts of the case are undisputed, as here, we simply determine on appeal whether the appellee was entitled to summary judgment as a matter of law. National Park Medical Ctr., Inc. v. Arkansas Dep’t Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).
This action was commenced by complaint filed in May 1994. The gravamen of the complaint against appellee is that he acted negligently in his medical treatment of the decedent, which was rendered on February 2, 1992, and that his negligence resulted in the decedent’s death on February 3, 1992. Appellant and her child are alleged to be the decedent’s surviving spouse and child. The complaint prayed for damages for the pecuniary injury and extreme mental anguish of appellant and her child, for appellant’s loss of consortium, for the decedent’s medical bills as a result of the alleged negligence, and for the decedent’s funeral expenses.
The issue, as framed by appellant, is whether the limitations period for a cause of action for wrongful death caused by a medical injury is three years from the decedent’s date of death, as provided by the Wrongful Death Act, Ark. Code Ann. § 16-62-102(c) (1987), or two years from the date of the wrongful act complained of, as provided by the Medical Malpractice Act, Ark. Code Ann. § 16-114-203(a) and (b) (Supp. 1995). It is undisputed that this action was commenced after the medical-malpractice two-year statute of limitations expired on February 2, 1994, but prior to the expiration of the wrongful-death three-year statute of limitations on February 3, 1995. Relying upon Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the trial court ruled that the Medical Malpractice Act controlled and the action was not timely filed. The trial court’s order was entered on December 27, 1994, and this appeal arises therefrom.
Appellant relies in error upon Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), and its progeny, for the proposition that the Wrongful Death Act governs the statute-of-limitations issue. In Ruffins, we affirmed the trial court’s dismissal of that wrongful-death case due to Ruffins’s failure to give the “notice of intent to sue” that was then required by the Medical Malpractice Act, and we held:
In sum, we have expressly reserved ruling on whether wrongful death resulting from medical malpractice is governed by the Medical Malpractice Act, and this is the first time we are squarely faced with the issue. The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” (Emphasis added.) The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.
Id. at 180, 853 S.W.2d at 880.
The present case is undisputedly one for wrongful death resulting from medical malpractice. Consequently, the Medical Malpractice Act applies. Id. The Medical Malpractice Act expressly “applies to all causes of action for medical injury accruing after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987) (emphasis added). In the present case, the limitations period provided under the Medical Malpractice Act conflicts with the limitations period provided under the Wrongful Death Act. Pursuant to the Medical Malpractice Act, the Wrongful Death Act’s statute of limitations, as an inconsistent provision of law, is superseded by the Medical Malpractice Act’s statute of limitations. Section 16-114-202. Thus, the trial court did not err, as a matter of law, in granting the motion for summary judgment.
Affirmed.
Glaze, Brown, and Roaf, JJ., dissent. | [
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Robert L. Brown, Justice.
On May 23, 1994, appellant Mary Clark sued appellee Robert Ridgeway Jr. for legal malpractice premised on a conflict of interest and breach of fiduciary duty. Ridgeway moved to dismiss the complaint on several grounds, including the lawyer immunity statute, Ark. Code Ann. § 16-22-310 (Repl. 1994). He further moved for Rule 11 sanctions and attorney fees under Ark. Code Ann. § 16-22-309 (Repl. 1994). Clark then amended her complaint to include allegations of professional negligence, breach of contract, and fraud. The precise allegations read:
12. In August of 1989, Plaintiff and Defendant entered into a contract. Under the terms of the contract, Plaintiff agreed not to object to the appointment of Defendant as a Master in Plaintiffs divorce proceedings. In return, the Defendant agreed that he would not represent either party to the action in the divorce case. The terms of the contract are set forth in Defendant’s affidavit, which is attached hereto as Exhibit “A”.
15. Defendant represented to the Plaintiff that he would not represent either Plaintiff or her husband in the divorce proceedings if Plaintiff did not object to his appointment as Master in the divorce proceedings. Plaintiff conditioned her approval of Defendant’s appointment as Master upon Defendant’s execution of an affidavit stating that he would not represent either party in the divorce proceedings. That affidavit is attached as Exhibit “A”. As set forth above, Defendant later represented Plaintiffs ex-husband in child custody matters and other matters in the divorce proceedings. Plaintiff relied upon Defendant’s representation to her detriment and has sustained damages as a proximate result of her detrimental reliance upon Defendant’s material representations. Defendant knew or should have known that his representations were false when made.
Exhibit A to the complaint is an affidavit by Ridgeway which was executed on August 11, 1989, and was part of the divorce action between Mary Clark and Harvey Clark in Garland County Chancery Court. The affidavit reads in pertinent part:
1. I am Robert D. Ridgeway, Jr., an attorney licensed and practicing in Garland County, Arkansas, and I have acted as the attorney for Clark Industries, Inc., since its incorporation in 1985. I have advised both parties to this divorce that it would be improper for me to do anything but remain neutral in this case, and that it is my desire to continue to act as attorney for the company.
2. During the time in which I have acted as attorney for the corporation, I have had numerous conversations concerning corporate activities with both Harvey Clark and Mary Clark, some of these conversations occurring in person and some of them by telephone.
3. Although most of my communications have been with Mary Clark concerning corporate business, it has always been my impression from my discussions with them that they were both directly involved in the day to day management of the business. I say this from conversations with both of them, in which they mentioned the other at work and involved at the business, and from my telephone calls to the business asking for either of them, and they would both would (sic) be on the job site.
4. From my knowledge of the corporation and the corporation’s business, as mentioned above, it would appear to me that Mrs. Clark is every bit as involved in the day to day management of the business as is Mr. Clark.
A second motion to dismiss the amended complaint was filed by Ridgeway, and that motion reasserted the grounds previously made.
The trial court granted the motion to dismiss. In doing so, it found:
I.
This Court has jurisdiction over the parties and the subject matter of this case.
II.
The Defendant is immune from the Plaintiff’s cause of action pursuant to Arkansas Code Annotated § 16-22-310.
III.
The Defendant, a licensed attorney, cannot be held civilly liable for conduct carried out in reliance on a Court Order.
IV.
The Plaintiffs action seeks to re-litigate an issue which has already been decided three (3) times in the Courts, and twice before the committee on Professional Conduct. As such, the Plaintiffs actions are barred by the Doctrines of Res Judicata and Collateral Estoppel.
V.
The Plaintiff has failed to allege sufficient facts to establish any proximate causation or any other connection between the alleged behavior of the Defendant, and any alleged damages suffered by the Plaintiff.
VI.
The Plaintiff has failed to state facts upon which relief can be granted.
VII.
There are no justiciable issues of law or fact.
Clark contends that the dismissal was error.
A history of this case is necessary to establish the context in which this litigation arose. Ridgeway had apparently performed some legal services for Mary Clark, Harvey Clark (her husband), and the family business, Clark Industries, Inc., during the time frame of 1985 to 1989. In 1990, Mary Clark and Harvey Clark were divorced, with the Property Settlement and Child Custody Agreement being filed on January 25, 1990. As part of the divorce proceedings, Ridgeway executed the quoted affidavit on August 11, 1989, and during the divorce proceedings, he was appointed Master of Clark Industries.
In August 1990, after the divorce decree was entered, Ridgeway represented Harvey Clark and Clark Industries in foreclosure litigation brought by One National Bank against the two clients and Mary Clark. A motion to disqualify Ridgeway as counsel was filed by Mary Clark, and the chancellor denied it.
In 1991, Ridgeway next represented Harvey Clark in a change of custody proceeding involving Clark’s children which was resolved. In 1993, the question of whether Clark had complied with a court order concerning therapy sessions was raised by Ridgeway on behalf of Harvey Clark. In 1993, Clark filed suit against Ridgeway and her divorce attorney, but she later dismissed Ridgeway from the suit without prejudice.
In her appeal in the instant case, Clark contests the findings and conclusions by the trial court in its order: (1) that Ridgeway was immune from civil liability, (2) that he justifiably acted in reliance on a court order, (3) that the suit is barred by issue or claim preclusion, (4) that Clark failed to establish proximate causation, and (5) that there are no justiciable issues of fact. We note initially that some of Ridgeway’s defenses are affirmative defenses (res judicata and collateral estoppel), which are more typically raised by answer and not by a motion to dismiss. Clark does not object to the procedure followed by Ridgeway, however; nor does she contend that she was prejudiced by the process. We have permitted affirmative defenses to be raised by a motion to dismiss in the past. See Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984) (res judicata); see also Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991) (laches and limitations). We will consider the defenses in the case at hand.
I. Summary Judgment
We first address whether the order of dismissal was in reality one for summary judgment. In her amended complaint, Clark attached the 1989 affidavit of Ridgeway as an exhibit. Also, in her response to Ridgeway’s motion to dismiss, she attached her own affidavit in which she swore to the facts which led to her “contract” with Ridgeway and the facts that she contends consti tuted a breach. She attached Ridgeway’s 1989 affidavit as a second exhibit to her response.
When matters outside the pleadings are presented and not excluded by the trial court in connection with a Rule 12(b) motion, we treat the motion as one for summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure. Ark. R. Civ. P. 12(b) and (c); see Carter v. F.W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (1985); see also Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). The matters which will be considered in summary judgment proceedings are limited to affidavits, depositions, admissions, and answers to interrogatories. Ark. R. Civ. P. 56(c). Because the two affidavits by Clark were not excluded by the trial court and presumably considered by the court, we will treat the dismissal order as one for summary judgment. We emphasize, however, that we will not consider the exhibits attached to Ridgeway’s brief in support of his motion to dismiss in our consideration of the propriety of summary judgment, as we have specifically held that to do so would be incorrect. See Godwin v. Churchman, supra; Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989); Carter v. F.W. Woolworth Co., supra; Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985).
II. Negligence and Fraud
Mary Clark’s first contention in this appeal is that the trial judge erroneously dismissed the case on the basis of the immunity statute for certain lawyers (§ 16-22-310(a)). According to Clark, that statute is inapplicable to this case because privity of contract existed between Ridgeway and her. The privity of contract asserted was based on an oral agreement that Ridgeway could serve as Master for Clark Industries, if he represented neither party in the divorce action. Clark attached Ridgeway’s affidavit, which she contends memorializes the contract, and her own affidavit to support her contention.
The apposite statute relating to privity of contract and lawyer immunity reads:
(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person ....
Ark. Code Ann. § 16-22-310(a) (Repl. 1994). The language of this section is precise and clear and reveals that the contract contemplated by the statute relates to a contract for professional services performed by the attorney for the client. Here, taking the affidavits submitted at face value and the allegations of a contract to be true, the asserted contract did not relate to Ridgeway’s performance of professional services rendered to Mary Clark. Rather, the alleged breach appears to relate to Ridgeway’s representation of Harvey Clark in matters concerning the divorce, which he agreed not to do. We admit to having some doubt about whether the 1989 affidavit bound Ridgeway not to represent Harvey Clark after the divorce decree, but even assuming it did, the alleged contract still does not involve Ridgeway’s legal representation of Mary Clark.
If privity of contract is held to be lacking, Clark asserts that § 16-22-310(a)(l) still provides for a cause of action against attorneys for intentional misrepresentations or fraud. That is true. To establish fraud, the following elements must exist:
(1) a false representation, usually of a material fact;
(2) knowledge or belief by the defendant that the representation is false;
(3) intent to induce reliance on the part of the plaintiff;
(4) justifiable reliance by the plaintiff; and
(5) resulting damage to the plaintiff.
Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).
Clark alleges in her complaint that Ridgeway knew or should have known that his representations were false “when made.” She then goes forward and asserts that Ridgeway “later” served as legal counsel for Harvey Clark in child custody matters which were part of the divorce proceedings. This legal work occurred after the divorce decree as witnessed by Mary Clark’s affidavit attached to her response to motion to dismiss:
After the divorce, Mr. Ridgeway represented my ex-husband, Harvey Clark, in a custody fight between me and Mr. Clark and also represented Mr. Clark in a court case in which the terms of the settlement agreement reached in the divorce were at issue.
It is clear to us that a promise or averment cannot be made false by subsequent events and still fall under the umbrella of intentional fraud unless the party making the promise knew it would not be kept at the time of the promise. See Anthony v. First Nat’l Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267 (1968); Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). In the Undent case, the Court of Appeals considered an appeal from summary judgment entered in favor of First National Bank of Springdale. An affidavit of the appellant averred that an agent of First National Bank had advised him that he would be relieved of liability on a promissory note he made to the bank when he went off the board of a second bank. He went off the board of the second bank but was then sued by First National Bank on the promissory note. He alleged fraud by the bank’s agent but the trial court entered summary judgment against him, apparently on the basis that representations relating to future events cannot afford a basis for actionable fraud. The Court of Appeals reversed and held that a genuine issue of material fact existed on fraudulent inducement.
The instant case is different from Undem v. First Nat’l Bank, supra. Here, Clark points to Ridgeway’s legal representation of Harvey Clark after the divorce decree in the foreclosure action and the change-of-custody battle. Unlike the liability on the promissory note in the Undent case, neither lawsuit could have been foreseen with any degree of certainty when the 1989 affidavit was made by Ridgeway. Both developed from circumstances arising after the divorce decree. We find no factual basis for the conclusory allegation in Clark’s amended complaint that Ridgeway intentionally misrepresented his statement of neutrality in the divorce case on August 11, 1989. See Evans Indus. Coatings, Inc. v. Chancery Court, Union County, 315 Ark. 728, 870 S.W.2d 701 (1994). Thus, we conclude that no genuine issue of material fact has been presented on the immunity question with respect to negligence and fraud and that the court’s finding and conclusion that Ridgeway was immune from Clark’s complaint under § 16-22-310 was correct.
Nor do we view § 16-22-310 as usurping this court’s authority to regulate the practice of law. See Ark. Const, amend. 28. The statute enunciates the parameters for litigation by clients against attorneys and does not conflict with any rule or decision by this court. The arguments of legislative usurpation and violation of the separation of powers are meritless.
III. Breach of Contract
As quoted above, Clark alleged in her amended complaint that a contract existed based on mutual promises between herself and Ridgeway. She further alleged that she was damaged by Ridgeway’s breach of contract due to loss of custody of her daughters and her property valued at $250,000. In her affidavit attached to her response to the motion to dismiss, she had this to say about the contract:
3. After the divorce case between Harvey Clark and me was filed, Mr. Clark and I could not agree on who should run Clark Industries or how it should be run. A suggestion was made that a Master be appointed to oversee Clark Industries during the pendency of the divorce. Mr. Ridgeway was mentioned as a potential candidate for Master. I talked with Mr. Ridgeway and asked his assurance that he would never represent either me or Harvey against the other if he was appointed Master. Mr. Ridge-way promised me that he would not do so because it would not be fair to either party for him to do so since he had represented both parties in the past. Defendant then executed an affidavit in which he stated that it would be improper for him to do anything but remain neutral in the divorce case.
Whether a contract exists or not is for the trier of fact to determine. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). Here, the allegations and affidavits are sufficient to raise a fact question as to whether a contract was made. The issue then becomes whether the cause of action is precluded by prior litigation where breach of contract could have been raised. See In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995).
Though Ridgeway argues in his brief that his disqualification as counsel has been resolved by at least two chancellors, it does not appear that a decision on Clark’s allegation of breach of contract has been made. Was there previous litigation where the issue could have been raised and resolved? We do not think so. It is true that Clark joined Ridgeway briefly as a party defendant to her lawsuit against her divorce attorney in 1993, but she later dismissed him without prejudice. See Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). The complaint in the case before us was then filed in 1994. Clark is entitled to have this claim heard. Ridgeway asserts that Clark has already been compensated for any damages due to the successful lawsuit against her divorce attorney. That may be, but we have insufficient information before us to resolve that issue on summary judgment. For these reasons, we reverse the trial court’s order solely as it pertains to Clark’s complaint of breach of contract and remand for trial.
TV. Miscellaneous Points
Clark further urges that Ridgeway purposefully failed to disclose his 1989 affidavit to the chancellors who denied his disqualification as counsel. Because Clark presumably had a copy of the affidavit, as it was part of her divorce proceedings, we give this point little credence.
On another point, whether sufficient facts support proximately caused damages is no longer relevant. Proximate causation is an essential element for a cause of action in negligence. W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 41, at 263 (5th ed. 1984). We have held in this opinion that Ridgeway is immune from a negligence claim due to lack of privity. The only viable claim is breach of contract, and proximate causation is not an essential element to a finding of damages due to contractual breach.
Finally, Clark asserts a breach of fiduciary duty and conflict of interest on Ridgeway’s part. These claims appear to be closely aligned to her claim of legal malpractice and fraud and arise out of his representation of Harvey Clark after the divorce decree in connection with the property of the marriage and custody matters. We perceive no duty flowing to Clark from Ridgeway based on legal representation as already discussed. This claim has no merit, and we affirm the trial court’s order on this point.
Affirmed in part. Reversed in part and remanded.
This matter was subsequently appealed to this court, and we rendered a decision in Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). | [
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Per Curiam.
Barry Lynn Simpson, by his attorney, Joe Kelly Hardin, has filed a motion for a rule on the clerk. This court previously granted a motion to supplement the record by November 30, 1995, and set December 10, 1995, as the due-date for appellant’s brief. Mr. Hardin states by motion that he tendered both the addition to the record and appellant’s brief on December 10, 1995, but that the Clerk refused to accept the addition to the record.
Mr. Hardin admits by motion that the addition to the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
This is appellant Willie Suggs’s second appeal. In his first, this court reversed his first degree murder conviction due to trial error and remanded the case for a new trial. Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994). Suggs was retried, and was convicted of second degree murder and sentenced to twenty years. He raises four points for reversal.
In his first argument, Suggs states that when he was originally tried and convicted in 1993, Arkansas law then authorized, and he received, a non-bifurcated trial. However, after his original conviction, but before his case was reversed and remanded by this court, the General Assembly amended Arkansas law, effective January 1, 1994, to permit bifurcated trials in all felony cases. See Ark. Code Ann. § 5-4-103 (Repl. 1994). At Suggs’s second trial on remand, which commenced in February of 1995, the trial court ruled it should try Suggs’s case pursuant to the newly-enacted bifurcated trial procedure. Suggs suggests the trial court’s decision to retroactively apply the new law in his case violated the Ex Post Facto Clause. We disagree.
In Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994) , Williams made a similar argument to the one Suggs advances here. There, Williams, who was tried in January of 1994, contended that, because his alleged crimes occurred in 1993, he was entitled to the non-bifurcated trial procedure in effect in 1993. Williams claimed that, when the trial court retroactively utilized Arkansas’s new bifurcated sentencing procedure (effective January 1, 1994), it violated the Ex Post Facto Clause. This court rejected Williams’s argument, and explained that Arkansas’s new bifurcated sentencing laws do not violate the Ex Post Facto Clause because they do not criminalize conduct that was previously non-criminal, do not increase the severity or harshness of the punishment for the offenses that Williams committed and do not deprive him of a defense that was available to him at the time he committed the offenses with which he was charged. See also Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995) . The court further determined that the penalty or sentence authorized under the sentencing statutes remained the same at all relevant times in Williams’s situation and any change in the sentencing trial procedure was merely procedural, not substantively prejudicial or an Ex Post Facto violation. Here, the same is true in Suggs’s situation.
Suggs’s second point emanates from his having refused to be present when trial proceedings reconvened on the morning of February 9, 1995. The deputy sheriff relayed Suggs’s message that Suggs “did not care how long the court and jury had to wait, he would come when he got dressed and he got ready.” Defense counsel then moved for a mistrial, claiming Suggs was prejudiced because the jury became aware that the sheriff’s department had Suggs incarcerated “because they’ve (deputies have) been going back and forth trying to find him.”
Here, Suggs asserts the trial court’s denial of his motion amounted to reversible error. Suggs is wrong on this point for more than one reason, but the short answer is that the record fails to demonstrate the error asserted on appeal. Claiborne v. State, 319 Ark. 537, 893 S.W.2d 324 (1995). In fact, the colloquy between the trial court and the deputy sheriff and the exchange between defense counsel and the trial court are designated in the record as being “held at the bench out of the hearing of the jury.” In sum, our review of the record fails to reveal the jury saw Suggs in prison garb or show it was in any way made aware of his incarceration.
Suggs raises a third issue wherein he claims the state criminalist expert witness, Don Smith, knowingly gave opinion evidence that could not be true. Suggs reasons that, at trial, Smith testified that he was given hair samples from Debbie McKenzie’s body and from Suggs, and he compared those samples with hair found on a tennis shoe belonging to Suggs. Smith opined that the hair found on Suggs’s shoe was Debbie’s. However, Suggs points out that, on cross-examination, Smith agreed with the proposition that “the scientific field cannot prove the hair came from a certain individual to the exclusion of any other person.” In view of this response on cross-examination, Suggs contends Smith’s earlier opinion should have been excluded.
It is well settled that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and the trial court’s decision will not be reversed unless that discretion has been abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). Once an expert witness is qualified, the weakness in the factual underpinning of the expert’s opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert’s testimony. Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976). And where the testimony shows a questionable basis for the opinion of the expert, the issue becomes one of credibility for the factfinder, rather than a question of law for the court. Arkansas State Highway Comm’n v. First Pyramid Life Ins. Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979).
Here, the trial court correctly qualified Smith as an expert concerning the field of trace evidence. Smith testified that, as a criminalist, he deals with scientific evidence and traces evidence or residues recovered at a crime scene which includes such things as hair. His training, Smith said, included specialized areas of hair analysis, and he obtained such training and experience with the FBI lab and St. Louis Metropolitan Police lab. He also related his broader work and training, obtained in the trace evi dence field. After having been qualified as an expert, Smith went into considerable detail concerning the analysis performed on Suggs’s and Debbie McKenzie’s hair samples and how those samples were analyzed and compared with the hair found on Suggs’s tennis shoe. Suggs’s counsel then thoroughly cross-examined Smith concerning his training and about the tests performed and, as discussed above, counsel further questioned Smith as to whether Smith could actually prove the.hair on Suggs’s shoe belonged to Debbie. Both state and defense counsel did an excellent job of pinpointing the strengths and weaknesses of Smith’s opinion evidence; once done, however, it became the jury’s duty to determine the weight and credibility to be given Smith’s testimony. In sum, the court did not err in allowing Smith’s testimony. ■
Suggs’s final argument concerns testimony given by state witness Carolyn Hudnall. Hudnall said that she saw Suggs several times at Debbie McKenzie’s workplace, and those occasions occurred a few days before Debbie’s murder. Suggs asked Debbie for a date, and she told him no. Hudnall said that Suggs asked a second time, and Debbie became agitated and told, him she already had a boyfriend. Suggs objected to Hudnall’s testimony as being inadmissible hearsay. He claims the prosecution elicited this testimony to establish Suggs’s motive in killing Debbie. The trial court overruled Suggs’s objection.
Even if the trial court’s ruling was error, it was harmless. This court has held that where hearsay evidence is improperly admitted, but the same evidence is properly admitted through another source, there is no reversible error. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). That is the situation here. Four other state witnesses testified without objection to the same, or even stronger, evidence reflecting that Suggs had harassed Debbie shortly before her death with contacts at work and at home, and she repeatedly rejected his offers. Patricia Parker and Elsie Mills testified that Suggs bothered Debbie at work and she would not talk to him. Mills said she was at Debbie’s home, and answered numerous calls from Suggs, but Debbie would not take the calls. Similar testimony was given by another state witness, Linda Malone. Debbie’s brother, Lee Lemmon, testified Debbie had called and asked him to her house because Suggs was beating and kick ing on her door in an attempt to break in. Lemmon said that Debbie appeared frightened and nervous.
After careful review of the record and arguments of counsel, we hold no reversible error occurred. Therefore, we affirm. | [
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Per Curiam.
Appellant, Joel P. Smith, by his attorney, has filed for a belated appeal.
His attorney, Robert S. Tschiemer, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In re Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Bradley D. Jesson, Chief Justice.
The appellants, Hubert and Sharon White, are landowners in Marion County. Their land lies adjacent to property owned by the late Martin Hardcastle, Jr. On January 20, 1995, the appellants petitioned the Marion County probate court to set aside an order which authorized the sale of the Hardcastle land. The court denied the petition, and we affirm.
On October 24, 1990, appellee Evelyn Welsh filed a petition to probate the will of her decedent, Martin Hardcastle, Jr. That part of the Hardcastle estate which was subject to probate in Arkansas consisted of one hundred and twenty acres of land in Marion County. On October 26, 1990, the court admitted the will to probate and named Ms. Welsh executrix. Letters testamentary were issued the same day. Four years later, on November 9, 1994, Ms. Welsh petitioned the court for authority to sell the property for the appraised value of 137,000 in order to pay claims and make distribution. Her petition further requested authority to pursue litigation against Hubert and Sharon White. She claimed that the Whites had blocked a road which served as access to the Hardcastle property.
The record reflects that Hardcastle’s devisees waived notice in connection with any hearing on the petition. On November 11, 1994, the court issued an order authorizing the sale of the property and finding that, in order to accomplish the sale, it would be necessary to pursue litigation against Hubert and Sharon White. Approximately two months later, the Whites, who had received no notice of the petition, asked that the order be set aside. They alleged that the order, and the probate proceeding as a whole, contained various procedural deficiencies. They claimed standing on the grounds that Welsh’s petition and the subsequent court order referred to them by name, referred to real estate owned by them, and referred to litigation against them. The probate judge, relying on Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970), found that the Whites were not “interested persons” as defined by Arkansas law and had no standing to question the issuance of the order. The petition to set aside was' thus denied. It is from that ruling that the Whites appeal.
This court conducts a de novo review of probate court orders. Absent clear error, the order is not reversed. In the Matter of the Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).
When a personal representative seeks authority to sell the real property of an estate, notice must be given to “such interested persons as the court may direct,” unless the value of the interest to be sold is $1,500 or less. Ark. Code Ann. § 28-51-301(c) (1987). The term “interested persons” is defined in Ark. Code Ann. § 28-1-102(11) as follows:
‘Interested persons’ includes any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary.
In the Doepke case, a potential tort claimant waited too long to file his claim against the decedent’s estate. He asked that the estate be reopened. Only an interested person may petition to reopen an estate. Ark. Code Ann. § 28-53-119(a)(1) (1987). We held that, since the claimant no longer had an interest in the property of the estate, he had no standing to petition for a reopening.
In addition to Doepke, we addressed the issue of interested persons in the more recent case of Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). There, certain of the decedent’s children who were not named in his will wanted to file suit for the wrongful death of their father. The executor did not wish to pursue the litigation, so the children petitioned the court to remove the executor. Such a petition must be filed by an interested person. Ark. Code Ann. § 28-48-105(a)(2) (1987). The probate court found that the children had no standing to file the petition. We agreed, holding simply that the children were not heirs, were not creditors, and had no claim against the estate.
In this case, the Whites are not heirs or creditors. Their petition does not assert any claim against the estate or declare any interest in the estate’s property. Nowhere do they indicate any entitlement to proceeds which might be distributed by the estate. In fact, the situation is just the opposite. The Whites are persons against whom the estate has sought relief.
We conclude that the Whites are not interested persons as defined by Ark. Code Ann. § 28-1-102(11) (1987) and therefore have no standing to question the issuance of the court’s order. Because they have failed to surmount this threshold issue, we do not reach their arguments regarding procedural irregularities and allegations of fraud.
Affirmed.
A right to review by this court lies from all probate court orders, other than an order removing a fiduciary for failure to give bond or to render a required accounting or an order appointing a special administrator. Ark. Code Ann. § 28-1-116(a) and (b) (1987). Therefore, the appeal is properly before us. | [
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Per Curiam.
Appellant, Larry Donihoo, by his attorney, Garnet E. Norwood, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to an error on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant Damien Echols was found guilty of three counts of capital murder and was sentenced to death on each of the three counts. His attorneys filed the record, abstracts, and briefs with the assignments of error including both the guilt-innocence and the penalty phases of the trial. Echols, acting pro se, filed a motion requesting that this court consider only the guilt-innocence points of appeal and not the arguments involving the death penalty. On July 17, 1995, we remanded the matter to the trial court for a determination of whether appellant had been advised by counsel of the consequences of abandoning the points of appeal concerning the death penalty and whether appellant was competent to make a rational decision about abandoning the death penalty arguments. Echols v. State, 321 Ark. 497, 902 S.W.2d 781 (1995).
Appellant has now filed a motion to withdraw his request that we not consider the death penalty issues and asks us to proceed with the full appeal. The Attorney General, in response, asks that we not yet recall the case, but instead asks that we leave the remand in effect for a factual determination by the trial court of appellant’s competency, for the reason that the “development of such a record will best protect the interests of the appellant and the State in future proceedings.” The response has merit. Thus, we leave the remand in effect and will proceed with the appeal when the trial-court certifies its findings to us. | [
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Andree Layton Roaf, Justice.
This case involves the construction of the will of Carlie O. Brumley. The probate judge concluded that pursuant to the will of the decedent, the decedent’s estate passed to his surviving children in equal shares, share and share alike. In addition, the probate judge found that the decedent’s daughter, Norma Hudson, predeceased the decedent and her interest in the decedent’s estate did not vest. On appeal, appellant John A. Hudson submits that the probate judge (1) erred in finding that the interest of the decedent’s daughter, Norma Hudson, did not vest in her children upon her death and (2) erred in finding that the decedent’s estate passed only to his surviving children. We affirm.
Carlie O. Brumley died on October 3, 1994. His wife predeceased him, but he was survived by five children: Margaret Daniel, Wanetta Towler, Leland Brumley, Wayne Brumley, and James Brumley. In addition, one of the decedent’s children, Norma Hudson, predeceased him; she was survived by four chil dren: John A. Hudson, Tommy D. Hudson, Sheila C. Conner, and Rebecca J. Drain.
On January 25, 1995, appellant John A. Hudson filed a petition to determine heirship. On March 17, 1995, the probate judge entered an order finding that the decedent left as his last will a written instrument dated January 31, 1989. The probate judge further ruled that the instrument should be admitted to probate as the last will and testament of Carlie O. Brumley, deceased.
In an order entered May 19, 1995, the probate judge concluded that “pursuant to the will of the decedent, the decedent’s estate passed to his surviving children, Margaret Daniel, Wanetta Towler, Leland Brumley, Wayne Brumley, and James Brumley, in equal shares, share and share alike.” In addition, the probate judge found that the decedent’s daughter, Norma Hudson, predeceased the decedent and her interest in the decedent’s estate did not vest. Appellant John Hudson appeals from that order.
Although this case involves the construction of a will, the appellant’s abstract does not include the will. The appellant’s abstract merely consists of statements such as, “[a]ppellant filed a petition to determine the heirs to the estate of the decedent,” “[a]ppellant filed a brief to support his position on the petition to determine the heirs of the decedent’s estate in order to aid the court,” and “[t]he Court entered an Order finding that the decedent’s deceased child’s interest in the estate did not vest because she predeceased the decedent and authorizing the sale of the real property at a private sale.” The appellee did not file a supplemental abstract.
It is fundamental that the record on appeal is confined to that which is abstracted. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). Appellant is required to abstract such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885 (1995). Under Ark. Sup. Ct. Rule 4-2(b)(2) a judgment may be affirmed for noncompliance with Rule 4-2(a)(6). See Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995); Jones v. McCool, 318 Ark. 688, 886 S.W.2d 633 (1994). The failure to abstract a critical document precludes this Court from considering issues concerning it. Jones, supra.
In the argument sections of their briefs both the appellant and the appellee supply the provision of the will which is allegedly in question; however, the record on appeal is confined to the abstract and can not be contradicted or supplemented by statements made in the argument portions of the briefs. Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994). Further, the will which must be construed is never supplied in its entirety. It is a practical impossibility for seven justices to examine the single transcript filed with this Court, and we will not do so. J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
In Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991), we affirmed a comparable case for failure to adequately abstract a will. We commented that the will was a written instrument which could have been abstracted in words. Id. We noted that, rather than copying the will verbatim in the abstract, “in the argument portion of their brief, appellants quote selected portions of the will and then discuss those parts of the will they consider to be controlling.” We concluded that such a discussion did not comply with Ark. Sup. Ct. R. 9(d), the predecessor of our current Rule 4-2. Id.
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Per Curiam.
Appellant Darrel Hill was convicted of capital felony murder and attempted capital murder. His original death sentence was vacated; however, upon retrial, he was again sentenced to death. Hill filed a notice of appeal from the resentencing, and the record has been lodged with this Court. On February 27, 1996, Hill filed a pro se “Motion to Stop Appeal Process.” The motion provided that Hill wanted “all appeals in my case to be stopped.” On March 1, 1996, counsel for the appellant filed a motion requesting that a mental evaluation be ordered to determine whether Hill is capable of making a volun tary and knowing waiver of his right to appeal. Counsel for appellant also moved to stay the briefing time for Hill’s appeal.
We remand the matter for findings by the trial court on the questions of whether Hill has been advised by counsel with respect to abandoning his appeal and whether Hill will submit himself to a judicial review to be held in the trial court to consider whether he fully appreciates his position and can make a rational choice with respect to pursuing or abandoning issues on appeal concerning the sentence of death. Echols v. State, 321 Ark. 497, 902 S.W.2d 781 (1995).
As in Echols, if the trial court determines that Hill has reached his decision with benefit of counsel and will submit himself to a judicial review of his capacity to abandon the appeal of his death sentence, the trial court is directed to hold a competency hearing. An appellant sentenced to death will be permitted to abandon a state appeal of a death sentence only if he has been judicially determined to have the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation of the death sentence; that is, he must be determined to have the capacity to understand the choice of life or death and to knowingly and intelligently waive any and all rights to appeal the death sentence. See Echols v. State, supra.
If a competency hearing is held and the trial court determines Hill has made a knowing and intelligent waiver of the issues pertaining to the death sentence, the record of the hearing and the court’s findings shall be returned to this Court for review. We will review the proceeding to determine whether Hill had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to challenge the sentence of death on appeal. See Echols v. State, supra.
The motion to stay briefing time is granted.
Remanded. | [
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Bradley D. Jesson, Chief Justice.
The appellant, John Michael Bray, was convicted of rape, kidnapping, and theft of property in Faulkner County Circuit Court, and was sentenced as a habitual offender to a cumulative term of 140 years’ imprisonment. His sole point on appeal is that the trial court erred in admitting testimony during the sentencing phase of the trial regarding his prior conviction for attempted escape, when the State did not timely disclose the conviction. We affirm.
The day prior to Bray’s December 14, 1994, jury trial, his counsel received discovery from the State regarding an attempted escape by Bray while he was incarcerated on the present charges in Independence County. Included in the discovery were forty-five pages of statements that Bray had given to police regarding the escape attempt. In addition, the name of Investigator Jeff Everetts of the Independence County Sheriff’s Office was added to the witness list. Bray filed a written motion to suppress this information, complaining that the State had violated discovery rules. At a hearing on the motion prior to opening statements, the trial court observed that, while the State had violated discovery rules, Bray could not claim surprise. The. trial court reserved ruling on the motion.
The State did not use any of the information regarding the attempted escape during the guilt phase of the trial. The jury returned verdicts of guilty on all three charges. During the sentencing phase on December 15, the State introduced evidence of Bray’s prior felony convictions for perjury, possession of drug paraphernalia, and theft of property. Over Bray’s objection, the State also introduced evidence of Bray’s prior conviction for attempted escape in Independence County, as well as the testimony of Everetts. At the close of all the evidence, the trial court instructed the jury regarding the statutory range of punishment for a person convicted of more than one, but fewer than four felonies. Following deliberations, the jury recommended that Bray be sentenced to 60 years for rape, 60 years for kidnapping, and 20 years for theft of property. The trial court entered judgment against Bray accordingly and ordered that the sentences be served consecutively.
An accused is entitled to know, prior to trial, the range of possible punishment he faces. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987). Stated another way, under Ark. R. Crim. P. 17, an accused must be informed before trial of the number of previous convictions the State will attempt to introduce. Id. The information requested must be furnished in time to permit the beneficial use of it by the defense. Id. However, the key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). See also Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994); Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994). If the State does not provide information pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Burton v. State, supra; Davis v. State, supra.
In reviewing the record before us, it is clear that Bray has not demonstrated that he was prejudiced by the admission of the evidence regarding his conviction for attempted escape. We think it significant that counsel for Bray concurred with the trial court’s observations prior to opening statements that his client could not claim surprise:
THE COURT: Oh, it is late, but let me ask you this: How can the defendant claim surprise? He knew whether he did or didn’t escape, and he knew whether or not he made a statement to police, didn’t he?
COUNSEL FOR BRAY: I would assume he did.
In addition to counsel for Bray’s concession that his client could not claim that he was surprised by the evidence of the attempted escape, Bray suffered no prejudice by the admission of this evidence because he was not subjected to a harsher range of punishment for persons convicted of four or more felonies.
During the sentencing phase, the State introduced evidence that Bray had four prior felony convictions: perjury, possession of drug paraphernalia, theft of property, and attempted escape. However, when the trial judge read the instructions to the jury, he informed them of the range of punishment for persons previously convicted of more than one, but fewer than four felonies, telling the jury that Bray had “at least two previous felony convictions.” For Bray’s convictions of rape and kidnapping, Class Y felonies, he instructed the jury that Bray could be sentenced to a term not less than ten years nor more than sixty years, or life. See Ark. Code Ann. § 5-4-501(a)(l) (Repl. 1993). For Bray’s conviction for theft of property, he told the jury that Bray could be sentenced to a term of not less than three years nor more than twenty years. § 5-4-501(a)(4). While the trial judge, at the State’s request, corrected the written instructions to reflect that Bray had “four” rather than “at least two” previous felony convictions, the range of punishment remained unchanged. For convictions of rape and kidnapping, Class Y felonies, Bray, who had four prior felony convictions, could have been sentenced to a term not less than ten years nor more than life. § 5-4-501 (b)(1). For his conviction for theft of property, Bray could have been sentenced to a term of not less than three years nor more than thirty years. § 5-4-501 (b)(4). (Emphasis added.) However, the jury was not instructed with regard to the increased range of punishment for a person with four or more previous felony convictions, and he was not sentenced pursuant to this increased range. Pursuant to the jury’s recommendations, the trial judge sentenced Bray to 60 years for rape, 60 years for kidnapping, and 20 years for theft of property. Under these circumstances, Bray has not shown that he was prejudiced by the admission of evidence concerning his attempted escape conviction.
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Per Curiam.
On October 9, 1995, this Court issued a Per Curiam Order granting appellant’s Petition for Writ of Certiorari to complete the record in the above-styled case after official court reporter, Val Dixon-Sims, informed appellant’s counsel that her storage room had been vandalized and that she was therefore unable to transcribe the record. A copy of that Per Curiam is attached.
The security of records used to produce appellate transcripts is a matter of great concern to this Court. We refer this matter to the Board of Certified Court Reporter Examiners to conduct the necessary proceedings to determine whether there has been any violation of the Board’s regulations.
Further, in light of our Per Curiam of October 16, 1995, adopting a records retention schedule for official court reporter records, we direct that the Board advise us on how security of stored court reporter records can be better insured. | [
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Andree Layton Roaf, Justice.
Appellant Maxim Keith Daniels was convicted of seven counts of commercial burglary, one count of attempted commercial burglary, and five counts of theft of property. He was sentenced to forty years imprisonment in the Arkansas Department of Correction. Daniels raises seven points on appeal; the state concedes error regarding Daniels’ decision to represent himself at trial. We reverse and remand for a new trial.
On October 17, 1993, a string of burglaries occurred on a two and one-half mile stretch of Highway 7 near Russelville. There was an attempted burglary of D & D Imports, and the Ozark Heritage Craft Center, Tropical Gardens, Arkansas Shoe Center, Kilburn’s Grocery, Carter’s Grocery, Bright’s Heating and Air, and the VFW Club were all burglarized. The appellant was apprehended while attempting to open a safe in the VFW Club. Property taken from five of the businesses was recovered in the appellant’s vehicle and his motel room.
Two of the appellant’s points on appeal concern his decision to represent himself and his conduct in that endeavor. On May 9, 1994, the day of trial, appellant’s counsel informed the trial court that the appellant either wanted to obtain other counsel or wanted to represent himself. Consequently, the appellant requested a continuance. Defense counsel stated that the appellant was concerned because a third amended information filed four days before trial added the charge of felon in possession of a firearm. The appellant also complained of other changes in the amended information, requested a “full evidentiary hearing” to learn the evidence the state would present, and expressed dissatisfaction with his counsel. The trial court determined the felon in possession charge would not be tried, and defense counsel informed the trial court he was prepared to go to trial on the case. The trial court advised the appellant that he had “shown me nothing as to why I should relieve Mr. Gibbons as your attorney” and informed the appellant that he would not grant a continuance.
The trial court then inquired several times whether the appellant wanted his attorney to represent him, and the appellant repeatedly responded he wanted time to prepare for the case. Ultimately, the appellant stated, “I want to represent myself, but I want a continuance. I haven’t had time to prepare.” The trial judge stated the continuance was denied, and he informed the appellant that if he went into the courtroom and “put on a show” the trial would go on without his presence. The appellant said, “All I want is to represent myself.”
The trial court instructed the appellant that “I think it is a mistake not having Mr. Gibbons with you there, but that’s your decision.” The appellant elected to represent himself. Subsequently, the trial court stated that “there are procedures that we are going to follow that I suppose you don’t understand in selecting a jury.” The appellant responded by stating, “That’s another thing that I need. I need time.” The trial judge concluded the case would go to trial, and he informed the appellant that his counsel would remain available.
After the jury was selected, the state called its first witness, Ray Caldwell. The following exchange then occurred:
PROSECUTOR: Would you please state your name?
WITNESS: Ray Caldwell.
MR. DANIELS: So, you’re just going to railroad me regardless.
THE COURT: You’re going to the jail if you disrupt this trial.
MR. DANIELS: I’d rather go back to the jail and y’all can have a trial and do what you’re going to do in the first place.
THE COURT: No, I’m giving you the option of sitting here and listening to this trial.
MR. DANIELS: No, send me back to the jail.
THE COURT: I will if you disrupt the trial.
MR. DANIELS: Okay. Just send me back then.
THE COURT: I’m not until you disrupt this trial. Now, we are going to proceed with it.
MR. DANIELS: Well, what do I have to do to go back there? You’re going to railroad me regardless.
MR. DANIELS: Just send me back to jail.
THE COURT: That’s your choice.
MR. DANIELS: Okay.
THE COURT: Do you want to go?
MR. DANIELS: Okay, yeah, yeah.
THE COURT: I’m not going to send you to the jail. I’m going to put you in the jury room back here and I’m going to check and see if you want to come back into the Court.
MR. DANIELS: No, I don’t, no.
THE COURT: You’re going to the jury room right now. Take him back there.
MR. DANIELS: Will someone please call federal investigators.
After the appellant was removed from the courtroom, the judge allowed the trial to proceed with appellant in the jury room; his former counsel, Mr. Gibbons, remained in the judge’s chambers.
The appellant asserts the trial court erred in excluding him from the courtroom, failing to require counsel to participate in the appellant’s absence, and failing to grant a continuance. At trial appellant did not object to his exclusion from the courtroom, nor did he ask that his counsel come back and participate in his absence. In fact, the colloquy between appellant and the trial court reflects that he asked to be sent back to the jail. He also stated, before he was removed from the courtroom, that he did not want Mr. Gibbons to even be available at the counsel table with him. However, these events transpired after appellant’s counsel was dismissed and while appellant was attempting to represent himself. The state thus concedes the trial court erred by allowing the appellant to proceed pro se without ensuring that the appellant knowingly and intelligently waived his right to counsel.
The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990). It is well established that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). However, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Kincade v. State, supra; Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). The burden is upon the state to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989).
In Faretta v. California, supra, the United States Supreme Court stated that “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). In Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied 491 U.S. 910 (1989), we relied upon Patterson v. Illinois, 487 U.S. 285 (1988), to conclude that the constitutional minimum for a knowing and intelligent waiver of the right to counsel requires that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Further, we have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. Gibson v. State, supra. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. Id. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal. Id.
The appellant was not represented by counsel at his trial and there is no showing on the record that he knowingly and intelligently waived this right. The trial court commented that the appellant appeared to be well versed in the law; however, no real inquiry was made. In fact, the state concedes there was no inquiry. The trial court did not explain the risks or the consequences of proceeding without counsel. See Gibson v. State, supra; Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1986). Accordingly, we hold the trial court erred by allowing the appellant to represent himself without making a proper inquiry as required by Faretta v. California, supra.
Because we reverse and remand for a new trial, it is not necessary to address all of the appellant’s remaining arguments as they are unlikely to arise in a subsequent trial. However, we discuss two of the other points of appeal as these issues will likely arise on retrial.
The appellant asserts the use of three prior felony convictions for enhancement purposes constitutes reversible error. The appellant contends state’s exhibits one and two consist of records from Kentucky and Tennessee penal institutions, but there are no certificates by the wardens, there are no fingerprints, and there are no certified copies of the judgments of conviction. The appel lant asserts state’s exhibit three purports to be a certified copy of a Kansas conviction for burglary; however, the appellant contends the certification is suspect because the seal is dated 1961 and is in a place other than the area designated for the seal. In sum, the appellant submits the state failed to establish proof of the convictions as required by Ark. Code Ann. § 5-4-504 (Repl. 1993).
Section 5-4-504(a) provides that for sentencing enhancement purposes a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504 (Repl. 1993) (emphasis added); Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Subsection (b) of the statute provides further:
(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record;
(2) A certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as they appear in the records of his office; or
(3) A certificate of the chief custodian of the records of the United States Department of Justice, containing the names and fingerprints of the defendant as they appear in the records of his office.
We have recognized that the original commentary to the section provides: “The Commission wished to make clear the fact that the state may prove a previous felony conviction by means other than introduction of the certificates described in the statute.” Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).
The appellant simply argues that the state failed to establish the requisite proof because it failed to comply with § 5-4-504(a) or (b)(2); there is no suggestion whatever that the proof presented did not correctly reflect the judgments in the earlier cases in which the appellant was convicted. See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). The state sufficiently proved the three prior convictions, therefore this argument is without merit. See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).
The appellant also contends that Ark. Code Ann. § 16-97-101 (Supp. 1993), bifurcated sentencing procedures, does not apply to habitual offender situations and that it was error under Ark. Code Ann. § 5-4-502 (Repl. 1993) to allow testimony and argument during the sentencing phase. We have recognized that under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Ark. Code Ann. § 16-97-101 (Supp. 1993). In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. Hill v. State, supra; § 16-97-101. Finally, Ark. Code Ann. § 16-97-104 (Supp. 1993) specifically provides: “Proof of prior convictions, both felony and misdemeanor, and proof of juvenile adjudications shall follow the procedures outlined in §§ 5-4-502 - 5-4-504.” Clearly, the bifurcated procedures outlined in Ark. Code Ann. §§ 16-97-101 - 16-97-104 (Supp. 1993) are applicable to cases involving an alleged habitual offender; appellant’s argument therefore is without merit.
Reversed and remanded for new trial.
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Andree Layton Roaf, Justice.
Appellant Oscar E. Moore was convicted of capital murder and rape of a ninety-year-old neighbor, and of the burglary of her home. He was sentenced as an habitual offender to life without parole for the capital murder. He raises four points on appeal of his conviction and sentence, that the trial court erred in 1) refusing to suppress results of testing of appellant’s blood; 2) admitting DNA matching and probability testimony without conducting a preliminary hearing; 3) refusing to grant a mistrial when the state’s witness testified that appellant had admitted to committing another murder unrelated to this case; and 4) permitting an investigating officer to give lay opinion testimony that the appellant’s tennis shoes matched a footprint found at the scene of the murder.
We agree that the trial court erred in not declaring a mistrial, and reverse and remand. Moore’s remaining points are discussed to the extent they are relevant to a second trial.
Facts
On the morning of November 4, 1990, a neighbor went to the home of Ms. Nethealve Cannon and after being unable to get a response from her, kicked in a door and discovered her body. Ms. Cannon had blood on her nose, mouth and legs, and her undergarments were removed; she had been raped, strangled and her home had been burglarized.
Appellant lived with his mother across the road from Ms. Cannon and was present outside her home when her body was discovered. Appellant was heard to say that Ms. Cannon had only had a heart attack and should be taken to the hospital, and that her death would probably be pinned on him because he had been in some trouble lately. A tennis shoe print was discovered in Ms. Cannon’s bedroom near where her undergarments were found; the footprint was preserved and photographed.
Five days after Ms. Cannon’s body was discovered, Lester “Fleabag” Parker informed police that he had gone to appel lant’s home the night before Ms. Cannon’s body was discovered, to collect money from appellant for a marijuana sale. Parker stated that appellant told him that he did not have the money at that moment, but that he had stolen $7200.00 from Ms. Cannon after killing her. Parker further contended that he did not believe that appellant had killed Ms. Cannon until her body was discovered the next day.
Based on Parker’s information, the appellant was arrested, a search warrant was obtained for his home, and a pair of appellant’s tennis shoes were recovered. The state crime lab could not conclusively say that appellant’s tennis shoes matched the print found in Ms. Cannon’s home.
Also, twenty days after the appellant’s arrest and several days before the information was filed by the prosecution, investigators filed a Motion for Disclosure requesting that appellant’s blood be drawn to compare with semen found in the decedent. Appellant had informed the court the day after his arrest that he was in the process of hiring an attorney, consequently an attorney had not been appointed for him on the date this order was issued and the blood drawn.
The FBI laboratory concluded that the DNA in appellant’s blood matched the DNA in the semen recovered from Ms. Cannon and that the chance of randomly selecting an unrelated individual from the black population who would have the same DNA profile as the appellant was 1 in 500,000. The appellant moved to suppress the evidence from the blood alleging it was unlawfully obtained; this motion was denied. The appellant further moved to exclude the DNA testing results which declared the match and calculated the probability of a random match or, in the alternative, to require that the court hold a preliminary hearing, to determine whether the results of the DNA testing should be admitted into evidence in accordance with Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The trial court recognized Prater, but declined to order a preliminary hearing, reasoning that DNA testing was no longer a “novel” approach which warranted a preliminary hearing and, further, other jurisdictions had begun to take judicial notice of the reliability of DNA testing.
After hearing all the evidence, including testimony regard ing the DNA profiling, the jury found appellant guilty of capital murder, rape, and burglary and recommended a sentence of life imprisonment without parole for the capital murder.
a. Mistrial
We agree that the trial court should have granted appellant’s motion for mistrial during the testimony of Lester Parker. Parker had testified on direct examination that appellant had told him that he had killed Ms. Cannon on the night before her body was discovered. During the cross-examination by appellant’s counsel, the following colloquy occurred:
Q: Now, Fleabag, I don’t suppose we could be so lucky as for you to tell us that there was somebody else besides you that heard Oscar Moore on this Saturday night confess to you that he had killed Ms. Cannon?
A: Did —.
Q: Oscar Moore, on this Saturday night that he confessed to you that he killed Ms. Cannon, there was nobody else present there, was there?
A: No, but he admitted to killing another woman to his brother.
Appellant requested that the comment be struck, the jury be admonished, and made a motion for mistrial. The trial court denied the mistrial after a brief in-chambers hearing, and delivered an admonition to the jurors instructing them to disregard Parker’s answer to the defense counsel’s question.
Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Since the trial court is in a better position to determine the effect of a remark on the jury, Cupples, supra, it has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart, supra. Finally, 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. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).
We agree that Parker’s unresponsive testimony that the appellant had admitted he killed another woman was so prejudicial that it could not be cured by an admonition to the jury. Here the trial court’s denial of the motion for mistrial was abuse of discretion in the face of such a patently inflammatory and prejudicial statement. See Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983).
b. Suppression of blood tests
Appellant argues that his blood was drawn over his objection and when he was not represented by counsel, even though he had requested permission to talk to a lawyer immediately before his blood was drawn.
Prior to trial, appellant’s counsel filed a motion to suppress the results of any scientific tests performed on the blood samples taken from appellant, asserting that the State had the samples drawn from appellant in violation of his constitutional rights under the Fourth and Fifth Amendments to the United States Constitution and in violation of Ark. R. Crim. P. 18.1. The motion was denied and appellant raises the same arguments on appeal.
Fifth Amendment
We first address the appellant’s Fifth Amendment argument because this claim may be more readily resolved. The appellant contends that his right to remain silent and not incriminate himself has been violated by the taking of his blood. He invokes the Fifth Amendment but cites no further authority; his argument is untenable. The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize a defendant from providing the State with evidence of a testimonial or communicative nature. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining whether evidence is testimonial in nature the courts look to see if the activity performed is for the purpose of communication, such as a gesture; if it is, the activity is privileged. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court determined that the privilege against self-incrimination does not bar compelled intrusions into the body for blood to be analyzed for alcohol content. Appellant’s Fifth Amendment argument clearly has no merit.
Fourth Amendment
Appellant also asserts that the order for blood withdrawal and the taking of the blood against his will constituted an unreasonable search and seizure forbidden by the Fourth and Fourteenth Amendments of the United States Constitution. There are two components to this argument. Appellant first argues that the search was not proper because the affidavit for probable cause to arrest him was based on the statement of Lester Parker, an unreliable informant. However, at issue is the probable cause which existed for the issuance of the order for withdrawal of appellant’s blood, not his arrest. This court applies a “totality of circumstances” approach in determining whether the neutral and detached magistrate had a substantial basis for concluding that probable cause existed. Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).
The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding] that probable cause existed.”
Id. at 494, citing Illinois v. Gates, 462 U.S. 213 (1983).
In this instance, the trial court had a substantial basis in which to conclude that probable cause existed to grant the order for blood withdrawal. In addition to the statement of Parker, the affidavit of the state police investigator in support of the Motion for Disclosure recited: that he had been informed by Lester Parker that the evening prior to the discovery of the victim’s body appellant had informed Parker that he had killed Ms. Cannon; that black, high-top tennis shoes that had been recovered from appellant’s bedroom matched the print of a large tennis shoe that was lifted and preserved from the victim’s bedroom; that appellant claimed to have cleaned and cooked for Ms. Cannon on numerous occasions even though no one else could verify this claim; that appellant was seen with a large amount of money on the night after the murder, which was quite unusual because appellant did not have a job; that appellant informed the police that he had entered Ms. Cannon’s house upon the discovery of her body, put her phone on top of a table, and covered Ms. Cannon’s body with a blanket, while the individual who discovered the body stated that she was the only person to enter Ms. Cannon’s house before the police arrived; and that because she kept her doors locked and would not unlock the door unless she knew the caller, the killer was probably known by Ms. Cannon.
With regard to Parker, appellant further argues that an affiant must demonstrate particular facts bearing on an informant’s reliability as required by Ark. R. Crim. P. 13.1. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987). However, no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). Although Parker, an admitted drug seller, may not be a model citizen, in this instance he did not play the role of an informant. In his statement, Parker said that he was “scared” and told his cousin, appellant’s brother and his boss about appellant’s confession before reporting the matter to the police, after his boss urged him to do so. Parker also voluntarily gave a blood sample for DNA analysis when requested by the police. Clearly, there was a substantial basis for the court to conclude that probable cause existed to order the taking of appellant’s blood.
The second aspect of appellant’s Fourth Amendment argument involves the taking of the blood sample. Appellant contends the search was not reasonable, because his blood was drawn in the police station, in violation of the order, and that it falls short of the standard for reasonableness provided by Schmerber, supra. Although the order provided that appellant be taken to a medical facility, he was taken from his cell to the sheriffs office, where his blood was drawn in private, by a physician. In Schmerber, the Supreme Court held that a minor intrusion into the body performed in a reasonable manner (by needle) in a hospital by a physician, met the Fourth Amendment test of reasonableness. However, the Court cautioned:
We are thus not presented with the serious question which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment - for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under those conditions might be to invite an unjustified element of personal risk and pain.
Schmerber.
Initially, we note that Schmerber does not expressly prohibit the taking of a blood sample in the manner employed in the instant case. Despite the cautionary language warning against conducting searches which employ medical techniques in other than medical environments, here the appellant’s blood was drawn by a physician, not a police officer. As blood is routinely drawn by nurses, technicians, and other non-physicians, frequently in non-medical facilities, appellant was not in this instance subjected to an “unjustified element of personal risk and pain.”
We consequently cannot say that the manner in which appellant’s blood was taken constituted an unreasonable search, in violation of the Fourth Amendment.
Ark. R. Crim. P. Rule 18.1
Appellant asserts Ark. R. Crim. P. 18.1(b) was violated because it requires that “reasonable notice” be given to a defendant and his counsel. Arkansas Rules of Criminal Procedure Rule 18.1 gives a judicial officer the authority to require a defendant to permit the taking of samples of his blood, hair and other materials of his body if it involves no unreasonable intrusion. This rule provides in pertinent part:
(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof;
(b) Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the defendant and his counsel. (Emphasis added.)
When appellant’s blood was drawn, he had been in jail for twenty days on the charges involved in this case and did not have an attorney, although he was represented by a public defender on a pending unrelated burglary charge. On the date the blood was drawn, the state police investigator, with the help of the prosecutor, prepared a motion seeking permission to draw blood from appellant, obtained an order from the circuit judge granting the motion, filed the motion and order with the clerk, and picked up a physician and took him to the jail to draw the blood. The order provided that “a copy of the order shall be personally served on [appellant] and upon his attorney, should said attorney be made known to the Arkansas State Police or the prosecuting attorney’s office,” and that appellant be taken to the health department or other medical office for the drawing of blood. Appellant admitted at his suppression hearing that he was advised by the judge the day after his arrest that an attorney would be appointed for him if he could not afford to hire one; appellant at that time informed the court that he was “seeking the means to hire an attorney” and that he had already hired a lawyer because Investigator Glenn Sligh did not like him. He stated that he did not know his attorney’s name.
Appellant further testified at the suppression hearing that he asked to call his mother and an attorney immediately before his blood was withdrawn but his requests were refused. State Police Investigator Glenn Sligh testified that he asked appellant who his lawyer was in order to serve the order on the attorney, and that appellant stated that his attorney was coming from Texas. Mr. Sligh further testified that he allowed appellant to call his mother immediately prior to the drawing of the blood and that appellant was apparently seeking to determine if she had obtained a lawyer for him. He stated that appellant made no further mention of a lawyer after this call. Appellant’s mother denied receiving a call from appellant that day and a jailer testified to hearing a sheriff’s employee refuse to allow appellant to call his family or a lawyer, but stated that she did not recall seeing Mr. Sligh that day with the appellant. This court has repeatedly stated that conflicts in the testimony of the witnesses is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).
Although appellant argues on appeal that he was deprived of counsel when his blood was drawn, it is clear that he initially caused the delay in the appointment of counsel by representing to the judge at his probable cause hearing that he had already hired an attorney. Appellant cannot decline appointed counsel on the one hand and later claim he was denied the assistance of counsel; this is akin to the invited error doctrine. He further argues that the order was obtained without affording him a hearing, and that he had no prior notice that the state intended or desired to draw his blood. Rule 18.1(b) provides that “whenever the personal appearance of the defendant is required [for the taking of samples], reasonable notice of the time and place of such appearance shall be given ... to the defendant and his counsel.” A defendant who must present himself for the taking of samples is contemplated by this language. Here, the appellant was in custody at the time, and was given a copy of the order immediately prior to the blood withdrawal.
Moreover, even if the State violated Rule 18.1(b), we have said that suppression of the evidence is not the appropriate remedy for this violation. See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The standard of review on imposing sanctions for discovery violations is whether there has been an abuse of discretion. In Davasher, the defendant was represented by counsel, and argued that the failure to notify his counsel of the taking of samples from defendant shortly after his arrest was “prosecutorial misconduct” for which the remedy was suppression of the evidence. Id. at 163. We rejected this argument and stated that when there has been a failure to comply with discovery procedures, a trial court is not required to suppress evidence unless prejudice will result. Id. at 164.
Here, as in Davasher, appellant does not explain how prejudice might have occurred because an attorney was not present when the blood samples were taken. Appellant suggests that had he been represented by counsel when the court determined whether to order his blood drawn, “it is possible that probable cause could have been shown to have been lacking,” because Lester Parker’s trustworthiness could have been challenged, and that the trial court “might have ruled differently if the truth were known.” He further asserts that had the damaging blood test evidence not been submitted to the jury, there is a “reasonable probability” that the result below would have been different. However, appellant does not explain how the detailed investigator’s affidavit presented with the Motion for Disclosure failed to meet the standard for probable cause for search warrants, or could have been attacked. In sum, even assuming a violation of Ark. R. Crim. P. 18.1(b) occurred, we cannot say that appellant has demonstrated that he suffered prejudice as a result.
Finally, we note that appellant argues for the first time in his reply brief that he had an absolute right to counsel in the blood withdrawal proceeding because Ark. R. Crim. P. 8.3(b) forbids any action being taken after a defendant’s first appearance until the defendant and his counsel have had an opportunity to confer. He also asserts for the first time on appeal that the drawing of the blood sample violated his Sixth Amendment right to counsel. Neither of these arguments were made in his Motion to Suppress or Amended Motion to Suppress or argued to the trial court. We will not consider even constitutional arguments not raised before the trial court. See Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995).
c. DNA Matching and Probability Testimony
Prior to trial, the State advised the appellant that it intended to introduce test results conducted by the FBI laboratory which indicated a “match” in the DNA of semen found in the victim and the DNA of the blood drawn from the appellant. The State further announced plans to introduce, by population frequency statistics, the likelihood of the “match” being someone other than the appellant. Amending his motion to suppress, appellant requested a preliminary hearing to determine whether the results of any DNA testing was admissible pursuant to the requirements of Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The trial court determined that the preliminary hearing was not necessary and took judicial notice of the reliability of DNA profiling. The order denying the preliminary hearing provided in pertinent part:
Since the filing of the motion and the request for a hearing, the court and the parties have reviewed current decisions regarding the DNA issue including, but not limited to [U.S. v. Martinez, - F.3d - 62 USLW 2199, (8th Circuit September 2, 1993), [U.S. v. Jakobetz, 955 F.2d 786 (2d Circuit), Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L.Ed. 2d 469 (June 28, 1993). The Court has also reviewed a twenty-one page affidavit with exhibits attached of Audrey Grace Lynch, supervisory Special Agent, DNA Analysis Unit II, FBI, who conducted the forensic analysis of the DNA evidence involved in this cause. The affidavit indicates how the laboratory work was done and what analysis and assumptions underlie the probability calculations. The defendant, through his attorney, has advised the Court that his DNA expert witnesses have reviewed the laboratory notes of the FBI and if asked, would testify that the laboratory protocol was appropriate.
The Court is aware that Prater v. State infra directed that a preliminary hearing or inquiry be conducted when novel scientific evidence coupled with evidence of mathematical probabilities is offered. The evidence offered is no longer new or unusual, there having been over 50 appellate court decisions which support the admissibility of forensic DNA-RFLP profiling. DNA Evidence and Massachusetts, Crime Laboratory Digest, Vol. 19, No. 3 July, 1993. Based on the above, the Court concludes that the DNA profiling was derived from the application of reliable methodology or principle and that according to the affidavit of the affiant finds she properly performed protocol involved in DNA profiling. Accordingly, the Court is of the opinion that no preliminary hearing is necessary.
The Court therefore takes judicial notice of the general theory and reliability as well as the techniques of DNA profiling. Based upon the affidavit of Audrey Grace Lynch and the statement of defendant’s counsel that he has no evidence attacking the methodology of the FBI laboratory procedures, the Court further finds that the proposed testimony by the FBI witnesses is relevant and will be admitted.
This court adopted in Prater a relevancy standard in determining the admissibility of novel scientific evidence. The relevancy approach requires:
that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case.
Id. at 186. Under this relevancy approach, reliability is the critical element.
However, as the trial court correctly noted, since we decided Prater in 1991, there have been significant developments regarding the admissibility of DNA profiling; a number of appellate courts have recognized the reliability of this process, and no longer consider it novel scientific evidence.
Two of the cases relied upon by the trial court, U.S. v. Jakobetz, 955 F.2d 786 (2nd Cir. 1992), and U.S. v. Martinez, 3 F.2d 1191 (8th Cir. 1993), warrant our consideration. Both hold that trial courts may take judicial notice of the reliability of DNA profiling. In Jakobetz, the court undertook an exhaustive analysis and discussion of the scientific background of DNA profiling and the legal standard of admissibility for novel scientific evidence, before concluding that the general theories of genetics which support DNA profiling are unanimously accepted in the scientific community and that the specific techniques used by the FBI laboratory in DNA analysis are commonly used by scientists in microbiology and genetics research.
In Martinez, supra, the court relied heavily on the Jakobetz decision, stating, “We conclude that the Second Circuit’s conclusions as to the reliability of the general theories and techniques of DNA profiling are valid under the Supreme Court’s holding in Daubert, and hold that future courts can take judicial notice of their reliability.” However, the Martinez court further stated that its holding does not mean that expert testimony concerning DNA profiling would be automatically admissible without preliminary inquiry to determine if the expert properly performed a reliable methodology in arriving at his opinion, and further provided that the testifying expert should be required to submit affidavits attesting that he properly performed the protocols involved in DNA profiling.
Since Prater, we have on three occasions considered whether a scientific procedure should be considered novel scientific evidence, thus warranting a preliminary hearing or inquiry. We determined that the Horizontal Gaze Nystagmus test used to determine the presence of alcohol by observing the involuntary jerking of the eyeball, is not novel scientific evidence. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993). We reached the same conclusion with regard to human bite mark identification. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993). However, we held that luminol testing for the presence of blood is novel evidence of that requires a preliminary hearing to determine admissibility. Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995).
In light of the developments in the treatment of DNA evidence, we believe that we should revisit our now four-year-old holding in Prater, that DNA profiling is novel scientific evidence. We first observe that in Prater, we rejected the majority approach for determining the admissibility of novel scientific evidence as set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard relies solely on the general acceptance of this theory upon which the evidence is based in the relevant scientific community. We instead adopted the more liberal standard of admissibility, based upon the relevancy approach of the Uniform Rules of Evidence, in particular Rules 401, 402 and 702.
In 1993, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), held that the Federal Rules of Evidence supersede the Frye test and that the admissibility of expert opinion testimony concerning novel scientific evidence would no longer be limited solely to knowledge or evidence generally accepted as reliable in the relevant scientific community. The Court stated that, under the Rules of Evidence, the trial court must ensure that scientific evidence admitted is not only relevant, but reliable. Daubert, supra. Although Jakobetz was decided prior to Daubert, both courts adopted a reliability approach to Rule 702, comparable to the relevancy approach of Prater in which reliability is the critical element.
It remains for us to determine whether the trial judge was correct in his findings that DNA profiling is no longer novel scientific evidence requiring a preliminary inquiry to determine its reliability. We agree with his findings and hold that DNA profiling evidence should no longer be viewed as novel scientific evidence requiring a preliminary inquiry beyond the showing that the expert properly performed a reliable methodology in creating the DNA profiles.
The trial court conducted this inquiry in the instant case. Indeed, the trial court noted that the appellant’s experts conceded that the laboratory protocol employed by the FBI expert was appropriate, in determining that the evidence was relevant and would be admitted at trial. The trial court also correctly determined that any challenge to the conclusions reached by the state’s expert, including the statistical probability of whether the test results constituted a match, would appropriately be made at trial, by cross-examination of the state’s experts and presentation by the defendant of his own experts to express differing opinions about the results of the FBI tests and statistical probability of a match.
We note that at trial, appellant’s counsel conducted an extensive cross examination of the FBI agent who performed the DNA profiling and the two other prosecution experts who confirmed the DNA matched that of the appellant. During the cross examination of the FBI agent, the following testimony was brought forth:
[Defense Counsel]
Q. — and the DNA in the semen that came from Mrs. Cannon, when you compare them or look at them, and you say it is a match, you are not saying absolutely that that is Oscar Moore’s semen that was found in Mrs. Cannon, are you?
A. Correct. I am not saying absolutely.
Q. And you can’t say that and be telling the truth, can you?
A. No. Again, I cannot individualize to the point to say that it came absolutely from one person.
Q. [Y]ou are not saying that these results established absolutely that the DNA found in the semen in the victim is the DNA of Oscar Moore? You’re not saying that at all, are you?
A. I am not saying that absolutely without any question. That’s correct.
Q. . . . it’s either [appellant’s], or it’s somebody who has a DNA profile similar to him? That is your opinion, is it not?
A. That is correct.
In addition, appellant presented two experts who disputed the testimony of the prosecution experts and testified that the probability of a match with appellant’s DNA was actually 1 in 2662 and 1 in 355, as opposed to 1 in 500,000, as concluded by the FBI agent. Appellant was thus able to challenge the reliability of the DNA evidence by cross examination and with his own experts at trial.
d. Lay Opinion Testimony
At trial, a state crime lab report regarding the shoe print was introduced during the testimony of state police investigator Glenn Sligh. The crime lab was unable to identify or eliminate the print found in the victim’s bedroom as having been made by appellant’s shoe due to the lack of sufficient individual markings. However, the report stated that the shoe sole pattern of the print was consistent with the pattern on appellant’s shoe.
The testimony that appellant complains of came about during the examination of Investigator Sligh. On direct examination by the State, Sligh testified that the sole of the appellant’s athletic shoe matched the shoe print found on the center of the victim’s bedroom floor by stating, “That’s the right foot. This is what we believe to be a match to that picture and to the lifted print.” Appellant objected to Mr. Sligh’s opinion about the shoe print when he realized that Mr. Sligh apparently did not have the education or training to qualify as an expert. The trial court ruled that although Sligh testified that he had compared shoe prints in several cases, he was not an expert, and his testimony would be allowed as lay opinion testimony pursuant to Ark. R. Evid. 701.
Rule 701 of the Arkansas Rules of Evidence allows admission of opinion testimony by lay witnesses if the opinions or inferences are “(1) [rationally based upon the opinion of the witness and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). This court has stated that the requirements of Rule 701 are satisfied if the opinion or inference is one which a normal person would form on the basis of the observed facts, but if an opinion without the underlying facts would be misleading, then the objection should be sustained. Id. at 729.
Whether to admit relevant evidence rests in the sound discretion of the trial court, and the standard of review is abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991).
We cannot say that the trial court abused its discretion in allowing the officer in this instance to give lay opinion testimony to show that the appellant’s shoe print matched the picture, because, even though the officer was not an expert in that field, the trial court made a determination that he had some experience in that area and he was clearly testifying that the patterns matched, which was not inconsistent with the crime lab report.
Reversed and remanded. | [
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David Newbern, Justice.
Jody Jackson, the appellee, teaches horseback riding. Kittye Mason, the appellant, is the mother of Lydia Mason who, as a teenager, was a student of Ms. Jackson. Kittye Mason agreed to pay Ms. Jackson $500 to find a 10-year-old gelding, trained as a hunter-jumper, to be purchased for some $10,000 for Lydia Mason. Kittye Mason brought tort and contract claims against Ms. Jackson resulting from dissatisfaction with the horse Ms. Jackson helped her purchase. The Trial Court held in favor of Ms. Jackson and awarded attorney’s fees to her. We affirm the judgment and the fee award.
After entering the agreement, Ms. Jackson heard of an 11-year-old horse named “Norway” she thought might be suitable. Norway was owned by Phil Devita, owner of Coral Hill Farm in Florida. Norway was for sale for $11,500. Ms. Jackson spoke to Carolyn Tanner, who was apparently an employee of Mr. Devita with whom Ms. Jackson was acquainted, who told her Norway was 11 years old. She then spoke of Norway to Kittye Mason who expressed interest. The two of them flew to Florida, along with Lydia Mason, to have a look at Norway and other horses in March 1990.
While in Florida, the threesome observed Norway’s abilities and temperament at a horse show, and Lydia Mason rode him. They discussed Norway with the Savills, who were his former owners. Ms. Savill testified that, when she purchased Norway in December 1988, he was eight or nine years old and she had him examined by a veterinarian in connection with her purchase of him. Although they looked at other horses while in Florida, Mrs. Mason and Lydia decided to purchase Norway.
Kittye Mason testified it was Ms. Jackson’s responsibility to have Norway examined by an independent veterinarian before the purchase was to be completed. Ms. Jackson testified that Kittye Mason asked Ms. Tanner to arrange for the veterinary examination to expedite the matter, as she did not want to spend more than four days on the trip. The veterinarian who examined Norway was Dr. Delius, the “barn vet” at Coral Hill Farm. He certified the horse to be 11 years old. Ms. Jackson testified she told Kittye Mason that it was Dr. Delius who performed the examination.
Norway was ill when he arrived by van at Ms. Jackson’s farm where he was to be stabled. He suffered from colic from time to time over the following year. Several witnesses testified that Lydia Mason treated Norway badly, and his condition could have been the result of stress from mistreatment. Despite that, he won a number of contests for Lydia Mason.
In October 1991, Dr. Joseph Hanley examined Norway at Ms. Mason’s request and determined Norway’s age to be over twenty. Kittye Mason sued Dr. Delius, Mr. Devita, and Ms. Jackson for breach of contract, fraud, negligence, and strict liability. The claims against Dr. Delius and Mr. Devita were dismissed for lack of personal jurisdiction. The claims against Ms. Jackson were tried without a jury. In his letter opinion, Judge Bogard wrote:
The court finds that the Plaintiff did not prove by a preponderance of the evidence any negligence on the part of the Defendant as to the selection of the horse or the veterinarian. The Defendant did all a reasonable person would do in procuring a suitable horse for the Plaintiff’s daughter. Even assuming that the Plaintiff was responsible for arranging for the veterinarian examination, no one testified that only an independent veterinarian should perform this type of examination. In fact, one horse trainer testified that she would rather have the horse’s regular veterinarian perform the examination. Several trainers that testified stated that they rely on the out of state trainer/seller to secure a veterinarian, whether independent or the usual veterinarian, for a sale examination. All witnesses testified that only a veterinarian could properly and safely age a horse.
In addition, there is absolutely no evidence before this Court that Defendant was a party to any misrepresentation, fraud, or deceit. The only issue for consideration is whether the Defendant breached an oral agreement with the Plaintiff when it was discovered that although Norway horse met all of the other requirements, he was not 11 years old. The Court notes that the Defendant admits that for a fee of $500, she did agree to find a horse meeting the above mentioned criteria. To put it simply, the Defendant was to put the Plaintiff in touch with such a horse, which she did. The agreement did not include a guarantee of the horse’s age by the Defendant. Both parties knew that they would have to secure a veterinarian to certify the horse’s age; both parties knew that ageing a horse was out of their realm of abilities. When the Plaintiff agreed to take the veterinarian’s word, the Defendant ceased to be part of the contract, or in other words, Defendant’s contract with the Plaintiff was completed. The court finds the Defendant did not breach her contract with the Plaintiff. It is not reasonable to construe that the intent of the parties’ agreement was that the Defendant would guarantee that Norway was 11 years old.
2. Code remedies
Several of Kittye Mason’s points of appeal have to do with the Trial Court’s failure to rule in her favor with respect to remedies prescribed in Article 2 of the Uniform Commercial Code for a buyer against a seller of goods. Ark. Code Ann. §§ 4-2-314 through 4-2-316 (Repl. 1991). We need not deal with those points in detail because the positions of Kittye Mason and Ms. Jackson were not those of buyer and seller. The agreement was for personal services and not for a sale.
The product liability remedies found in Ark. Code Ann. §§ 16-116-101 through 16-116-107 (1987) are for buyers against manufacturers and suppliers and for suppliers against manufacturers of defective products. Again, these parties do not fit those categories.
2. Negligence
Kittye Mason contended Ms. Jackson was negligent when she failed to find a horse that met her criteria. She appears to argue the Trial Court erred in failing to hold that Ms. Jackson breached her duty of care by failing to arrange for an independent veterinarian to certify Norway’s age and health prior to their trip to Florida and subsequently in connection with the purchase. In response, Ms. Jackson cites the testimony of several other horse trainers who stated that an examination by an independent veterinarian was not required, and that it was often desirable to use a veterinarian familiar with the horse. In addition, we note the Trial Court could have based his decision in substantial measure upon Ms. Jackson’s testimony that it was Kittye Mason who arranged the sale examination by Dr. Delius through Ms. Tanner.
To establish a prima facie case of negligence, the plaintiff must show that she sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages.
Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).
Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993).
None of the other horse trainers who testified stated that it was customary to verify a horse’s age prior to showing him to a potential buyer. Rather, it appears that this determination can be made any time prior to purchase. None of those witnesses said an independent veterinarian must examine the horse. Nancy Sobba, a horse trainer from Jacksonville, testified that on out-of-state purchases, she has relied on an examination by a “barn vet,” or a doctor familiar with the horse.
We cannot say that any of the Trial Court’s factual conclusions were clearly erroneous, Ark. R. Civ. P. 52(a), or that his overall conclusion that Kittye Mason failed to present a preponderance of the evidence on the issue of negligence was wrong.
3. Attorney’s fee
Kittye Mason presents no argument with respect to breach of contract other than points which fall within Article 2 of the Uniform Commercial Code discussed above. Breach of contract was, however, a substantial issue before the Trial Court upon which Ms. Jackson prevailed.
Kittye Mason contends Ms. Jackson’s attorney had said to her attorney that he did not intend to charge his client a fee because she was a relative. Her contention now is that the fee arrangement must have been based on the contingency of Ms. Jackson prevailing in the lawsuit and that the fee arrangement thus was required to be in writing according to Model Rules of Professional Conduct 1.5.
In his order, the Trial Court stated: “It is within the Court’s discretion to award attorney’s fees to the prevailing party in a contract case. . . . [Ark. Code Ann. § 16-22-308 (1987).] As noted in the judgment . . . the Court focused on the breach of contract issue. . . . Defendant has incurred and should be awarded attorney’s fees in the amount of $6,000.”
Kittye Mason seems to be suggesting that Ms. Jackson did not incur an attorney’s fee and thus none should be awarded. The Trial Court held specifically that Ms. Jackson did incur an attorney’s fee. In these circumstances, the order of an attorney’s fee after entry of the judgment is a collateral matter. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). We cannot properly review this point because, as Ms. Jackson points out, Kittye Mason has not filed a notice of appeal from the fee order and has not provided us with a record of a hearing held on the attorney’s fee issue.
Affirmed.
Glaze and Brown, JJ., not participating. | [
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Tom Glaze, Justice.
On February 3, 1993, appellant Michael Burns entered his workplace possessing firearms, and commenced firing them. As a result, he killed one and wounded eight co-workers. After the state charged Burns with capital murder, seven counts of attempted murder and three counts of aggravated assault, Burns raised the defense of mental disease or defect, and requested a psychiatric examination. Upon receipt of the Arkansas State Hospital’s report, reflecting Burns lacked the capacity to conform his behavior to the law at the time of the shootings, he filed a pretrial motion for acquittal. After a hearing, the trial court denied Burns’s motion. At trial, the only issue in dispute was whether Burns was legally responsible at the time of the shooting spree. The jury found Burns guilty of all charges, and sentenced him to life imprisonment without parole.
Burns’s arguments basically are two. First, Burns contends that, because the state hospital found him insane at the time he committed the crimes, the trial court should have granted his motion for acquittal prior to trial. He urges that, since the state failed to put forth any medical evidence to rebut the state hospital’s findings, the trial court erred in allowing his case to go to trial on the merits. We disagree.
In Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), Davasher filed a motion for acquittal on the basis of mental disease or defect. Davasher had introduced uncontroverted medical evidence that he was a paranoid schizophrenic. This court held that, although the testimony regarding Davasher’s mental illness was not rebutted by other medical testimony, there was no requirement that the trial court enter a judgment of acquittal. Id. at 169.
Under Ark. Code Ann. § 5-2-313 (1987), a trial court may, if it is satisfied that the defendant is suffering from mental disease or defect, enter a judgment of acquittal. In Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981), this court stated that § 5-2-313 permits the trial judge to acquit the defendant “in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” (Emphasis added.)
In the present case, the state hospital’s expert witnesses offered opinions concerning Burns’s mental status that were far from being clear. For example, Dr. John R. Anderson testified that, while a person, like Burns, who suffers from delusional paranoid disorders is very difficult to treat, he may have periods of remission. Anderson discussed various factors that weighed in favor of Burns’s sanity and reflected his understanding of the ultimate wrongfulness in killing someone. He opined that Burns’s sanity was a jury question. In addition, Dr. O. Wendall Hall testified, stating that, although his opinion was that Burns lacked capacity to conform his conduct to requirements of law at the time of the crimes, “it was a fairly close call — a little over 50% that he probably was not responsible.” Hall added Burns’s case is not “black and white.” In hearing the testimony of these experts, the trial court concluded Burns’s case is neither one of extreme mental disease or defect, nor one where the lack of responsibility on the part of Burns is clear. We hold that the trial court’s ruling denying Burns’s motion to acquit was clearly within its authority and discretion. Davasher, 308 Ark. at 169, 823 S.W.2d at 872.
At this point, we mention that, at trial, Burns duly moved for directed verdict, contending the state failed to show Burns possessed the requisite intent and motive to commit the crimes with which he was charged. The question on appeal is whether there is substantial evidence to support the verdict. Id.
Doctors Anderson and Hall essentially repeated their testimony given at the pretrial hearing. In addition, the state offered other evidence showing Burns did not exhibit any conduct which indicated to his co-workers that he was not able to control his behavior on the day of the shootings. For example, David Washam testified he had seen Burns earlier in the morning when Burns was running a press “just like normal,” and Washam noticed nothing unusual about Burns. Don Jensen testified he was working next to Burns on the morning of the shooting, and Burns was running a machine. James French, who worked at a press machine next to Burns from 6:00 a.m. to 11:30 a.m., failed to notice any difference in Burns that day. Luther McDuffie saw Burns that morning, and testified Burns was the “same old Mike.” Aaron Hicks testified Burns was no different on the morning of the shooting from any other day. Finally, James Herndon, Burns’s supervisor for approximately twenty years, testified he had daily contact with Burns, and there was nothing unusual about Burns on the day of the shooting. Herndon described Burns as a top-notch, cooperative employee for the last sixteen years.
While medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Further, it is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993). The jury is the sole judge of the credibility of the witnesses, including experts, and has the duty to resolve conflicting testimony regarding mental competence. Id. Based on the testimony above, we conclude sufficient evidence existed for the jury to find that Burns was sane and legally responsible when he committed the crimes.
Burns’s second primary argument arises from the trial court’s denial of his pretrial motion to voir dire the jurors regarding their knowledge of what would happen to Burns if a verdict of not guilty by reason of mental disease or defect was rendered. He asked the trial court to allow him to introduce evidence concerning what would happen and proffered an instruction Burns asked be given to the jury at the end of the trial.
This court has repeatedly held that the jury is not to be told options available to the trial court when a defendant is found not guilty by reason of mental disease or defect because such an instruction raises questions foreign to the jury’s primary duty of determining guilt or innocence. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 114 (1991); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1981); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Campbell v. State. 216 Ark. 878, 228 S.W.2d 470 (1950). In Williams we were asked for the same, relief Burns requests here, and stated that, to grant such a request would permit or encourage the jury to base its verdict on speculation regarding the defendant’s subsequent disposition rather than on the law and evidence as to his mental responsibility at the time of the crimes. The Williams court concluded that, for twenty-five years, this court has adhered to this sound reasoning, and declined Williams’s suggestion to repudiate it. We find nothing in Burns’s argument here to compel us to depart from our decision in Williams.
Because we find no error, we affirm.
Pursuant to Ark. Sup. Ct. R. 4-3(h), the state has reviewed the record in its entirety and has found no other rulings adverse to Burns that involve prejudicial error.
Ark. Stat. Ann. § 41-609 (Repl. 1977) mentioned in Westbrook is the predecessor statute of § 5-2-313. | [
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Tom Glaze, Associate Justice.
The state filed delinquency petitions in juvenile court, alleging Frederick Mason and Nicholas Mason were each guilty of burglary and two counts of felony theft of property. At a hearing, the court entertained true pleas from both. Frederick entered a plea to one count of burglary and two counts of theft, and Nicholas pled to one count of burglary and one count of theft. Frederick and Nicholas were then placed on six months supervised probation, followed by six months unsupervised probation. After their respective pleas and judgments were entered, the Masons retained new counsel who filed notices of appeal from the court’s judgments. On appeal, the Masons contend that (1) their pleas were not intelligent, knowing, or voluntary and (2) their prior counsel was ineffective.
We first point out that the Arkansas Rules of Criminal Procedure apply to delinquency proceedings, Ark. Code Ann. § 9-27-325(f) (Supp. 1995). Thus, under Ark. R. Crim. P. 36.1 (1995), juvenile defendants, like the Masons here, may not appeal from a plea of guilty or nolo contendere, except as provided by Ark. R. Crim. P. 24.3(b). Rule 24.3(b) provides a defendant may enter a guilty plea conditioned on the reversal of a pretrial determination of a motion to suppress illegally obtained evidence. Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994). The Masons’ guilty pleas were not conditional and do not fall within the terms of Rule 24.3(b). Consequently, we are precluded by Rule 36.1 from hearing their appeals. See also Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995).
Because we have no authority to consider the Masons’ appeals, we also are unable to consider their ineffective assistance of counsel argument. Accordingly, we dismiss this appeal.
More fully, § 9-27-325(f) provides that, until rules of procedure for juvenile court are developed and in effect, the Arkansas Rules of Civil Procedure shall apply to all proceedings and the Arkansas Rules of Criminal Procedure shall apply to delinquency proceedings. On June 19, 1989, this court referred the Arkansas Juvenile Justice Com mission’s petition to this court’s standing Committee on Civil Procedure (now Practice) to determine what juvenile rules and procedures are advisable. No report has been submitted to this court by our committee, so this court’s civil and criminal rules continue to control juvenile proceedings. In Re: Rules of Juvenile Court Procedure, 299 Ark. 575, 771 S.W.2d 25 (1989).
The Masons’ argument appears doubtful in any event. Arkansas Rule of Criminal Procedure 37 is applicable to juvenile proceedings under § 9-27-325(f), but that rule, providing defendants the opportunity to argue ineffective assistance of counsel, is available only when they are in custody. See Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). Here, the Masons are not in custody. For clarity, we further note that, prior to enactment of § 9-27-325(f), the court held that juvenile delinquent proceedings were not covered by Rule 37. See Robinson v. Shock, Supt,, 282 Ark. 262, 667 S.W.2d 956 (1984). | [
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Per Curiam.
Appellant, Damion Jemon Brown, by his attorney, has filed for a rule on the clerk.
His attorney, Chris Tarver, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Donald L. Corbin, Justice.
Appellant, Richard Clark, appeals the order of judgment and commitment, entered October 7, 1994, in the Phillips County Circuit Court convicting him, by jury trial, of one count of rape and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts five points for reversal. We affirm the trial court’s order.
Appellant does not challenge the sufficiency of the evidence, so there is no need to recite it in detail. The charge against appellant was the result of a single incident occurring on the evening of April 8, 1993, when appellant picked up his daughter, the victim, then aged ten years, to drive her to his house. The victim testified that on their way to appellant’s house, appellant stopped the car, told her to get in the back seat, put her “short pants” on the floor, put his own clothes on the front seat, got in the back seat with her, lay on top of her while she lay on her back, and stuck “his private” in “her private.” The victim testified that it felt like a bottle, that she told appellant to stop, that appellant did this for about an hour, and that she had to go to the hospital later because appellant had hurt her and she was bleeding. On April 9, 1993, the victim was treated for a bleeding vaginal laceration at the emergency room of Arkansas Children’s Hospital in Little Rock and was admitted to its medical surgical unit. The hospital recommended that the victim receive mental health counseling, and, subsequently, she did.
Evidence of prior bad acts
Appellant’s first assignment of error is the admission of certain portions of the testimonies of the victim and Donna McKuen, an Arkansas Department of Human Services family service worker, as follows. The victim testified that appellant had never “done this” to her before. When asked whether appellant had “done it” to any of the other children who lived in his house, the victim replied affirmatively, and testified that she had seen appellant do the same thing he had done to her to eight-year-old Kenisha Harris in his house. Ms. McKuen testified that she had interviewed the victim on May 3, 1993, and had asked the victim if anyone had done anything bad to her, and that the victim had answered “yes, my daddy” and described the circumstances of the April 8, 1993 rape. Ms. McKuen also testified that, during the same interview, the victim told her that appellant had “done this to her” four times before.
Appellant contends these testimonies should have been excluded pursuant to Ark. R. Evid. 404(b) and 403, respectively, as character evidence that had no relevance except to show appellant’s propensity to commit the crime charged, and that was unfairly prejudicial. This argument is meritless.
In Greenlee v. State, 318 Ark. 191, 197, 884 S.W.2d 947, 950 (1994), we reversed Greenlee’s conviction for the rape of a five-year-old girl on other grounds, but stated that the trial court did not err by admitting evidence of Greenlee’s four prior convictions for sex-related offenses against other minor victims, as follows:
If this case did not pertain to child abuse or incest, the evidence of other crimes would be inadmissible character evidence under Rule 404(b) of the Arkansas Rules of Evidence. However, we allow such evidence under a pedophile exception to show “similar acts with the same child or other children in the same household when it is helpful in showing a ‘proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ” Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987) (quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). Appellant committed the prior offenses against young children, just as he was accused of doing in this case .... We have long held that such evidence helps to prove the depraved sexual instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).
This rationale is equally applicable to evidence of other sexual acts by the accused with the victim or another child in the same household. See Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Appellant cites no authority contradicting this rule of law in the context of a sex-related offense involving a minor victim. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 404(b).
Further, the challenged testimony was relevant to prove the charge of rape, and its probative value substantially outweighed its prejudicial effect. Jarrett, 310 Ark. 358, 833 S.W.2d 779; Free, 293 Ark. 65, 732 S.W.2d 452. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 403.
Ark. R. Evid. 615
The victim was permitted, without objection, to testify while seated at a table placed before the witness stand so that she faced the jury. As the examining attorney asked the victim each question, she wrote her response on a piece of paper and the attorney read the response aloud before proceeding to the next question. Appellant’s second assignment of error is the trial court’s ruling, over appellant’s objection pursuant to Ark. R. Evid. 615, that Ms. McKuen would be permitted to sit with the victim while the victim testified. The state requested this seating arrangement to “enable [the victim] to testify betterf.]” The trial court granted the state’s request on the conditions that: (1) if Ms. McKuen was called as a witness by the state, she would testify prior to the victim, (2) Ms. McKuen would not make suggestions to the victim during the victim’s testimony, and (3) Ms. McKuen would not be subject to recall by the state.
Rule 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. The provisions of Rule 615 are mandatory. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995). Nonetheless, pursuant to exceptions set forth in Rule 615 and in Ark. R. Evid. 616, certain persons, including the victim of the crime, have the right to remain in the courtroom. Appellant does not argue and the record does not reflect that Ms. McKuen was qualified to remain in the courtroom under any exception. Therefore, Ms. McKuen should have been excluded from the courtroom, id., and the trial court erred in ruling otherwise.
We do not find, however, that the trial court’s error requires us to reverse its judgment because appellant fails to show that any prejudice resulted. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Id.; Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). Appellant argues, without authority, that he was prejudiced because Ms. McKuen’s presence made it appear he was trying to intimidate the victim and that the victim had to have someone with her. The abstract does not support appellant’s assertion, and, in fact, even fails to reflect whether Ms. McKuen was present in the courtroom during the victim’s testimony. The abstract does show that Ms. McKuen testified prior to the victim and was not recalled to the stand.
The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “ ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’ ” King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). There is no abstracted evidence of such conduct as a result of the trial court’s erroneous ruling. On this record, we cannot say that appellant has demonstrated reversible error.
Failure to include Ms. McKuen on witness list
Appellant’s third assignment of error is that Ms. McKuen should not have been permitted to testify because the state failed to include her name on its witness list, in violation of its discovery obligation under Ark. R. Crim. P. 17.1 and 19.2. This argument is meritless.
First, an appellant is required to make an objection at the first opportunity in order to preserve the argument for appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Appellant did not object to Ms. McKuen’s testimony until she had taken the stand and answered twenty-four questions. At that point, Ms. McKuen was testifying as to her May 3, 1993 interview with the victim. Appellant objected that he had no statements taken by Ms. McKuen, and, after a brief exchange between the trial court and the parties’ trial counsel regarding this objection, a bench conference ensued wherein appellant’s counsel stated that the state “has got to let me know [Ms. McKuen] is going to testify.” On this record, we do not find that appellant objected at the earliest opportunity. Id.
Second, Rule 17.1 provides that, upon timely request, the state shall disclose to defense counsel the names and addresses of persons whom the state intends to call as witnesses; Rule 19.2 provides that the state’s obligation is a continuing one. The abstract, however, does not show appellant’s discovery request to the state, as required by Rule 17.1, or any witness list appellant received from the state. It is the duty of the appellant in a criminal case to abstract such parts of the record that are material to the point he argues, and his failure to do so precludes the appellate court from considering issues concerning it. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994).
Third, the record demonstrates that appellant was aware that Ms. McKuen was a prospective state’s witness, as follows. An in-camera conference was conducted immediately prior to Ms. McKuen’s testimony, wherein the trial court considered appellant’s Rule 615 objection that we discussed above. During that conference, appellant’s counsel argued that he anticipated Ms. McKuen was going to be a witness, and, therefore, she could not stay in the courtroom during the victim’s testimony.
Fourth, even assuming the state violated its discovery obligation by failing to disclose Ms. McKuen as a prospective witness prior to trial, appellant could have requested time to interview Ms. McKuen before she was called to testify. Mills v. State, 322 Ark. 647, 910 S.W.2d. 682 (1995). We have held that such a course of action by the trial court so ameliorated the state’s failure to comply with Rule 17.1 that the accused was not prejudiced. Id. Alternatively, appellant could have requested a continuance. Ark. R. Crim. P. 19.7. Appellant, however, failed to request either of these remedies.
Hearsay
Appellant’s fourth assignment of error is the admission of those portions of the testimonies of Ms. McKuen and Ms. Carol Crider reporting the victim’s out-of-court statements to them describing her rape. Ms. Crider was a social worker with the Arkansas Children’s Hospital who interviewed the victim at the hospital on April 9, 1993.
The trial court ruled these testimonies were admissible after the state characterized them as medical history, an apparent allusion to the hearsay exception for statements made for purposes of medical diagnosis or treatment under Ark. R. Evid. 803(4). Appellant argues that these testimonies regarding the victim’s out-of-court statements were inadmissible hearsay offered to bolster the victim’s testimony as prior consistent statements.
Citing Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), the state correctly points out that, on the facts of this case, it is unnecessary to consider whether the trial court’s ruling was erroneous. In Gatlin, we held that the trial court’s erroneous admission of the hearsay testimonies of two family members, which reported an out-of-court statement of the rape victim, a minor, was rendered harmless where the rape victim’s own trial testimony independently evidenced her rape and the rape victim was available at trial for cross-examination by the appellant. In light of the victim’s trial testimony and availability for cross-examination by appellant, this point of the appeal is governed by Gatlin.
Jury instruction
The trial court instructed the jury that in order to convict appellant, the state must prove that he engaged in sexual intercourse or deviate sexual activity with the victim. Appellant’s fifth assignment of error is the inclusion of the language “or deviate sexual activity” in the instruction because, he argues, there was no evidence to support that part of the instruction. This argument is meritless.
“Sexual intercourse” is defined as “penetration, however, slight, of a vagina by a penis.” Ark. Code Ann. § 5-14-101(9) (Repl. 1993). “Deviate sexual activity” is defined as:
[A]ny act of sexual gratification involving:
(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or
(B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]
Ark. Code Ann. § 5-14-101(1) (Repl. 1993). State’s witness, Dr. Ava Komoroski, a physician in the emergency department of Arkansas Children’s Hospital who examined the victim on April 9, 1993, testified that, in her opinion, a “a large object” penetrated and entered the victim’s vagina. Dr. Komoroski testified that nothing in her examination could tell the court what it was that actually caused the victim’s injury. The victim testified that, when appellant raped her, it felt like a bottle. On this record, we cannot find that the abstract supports the premise for appellant’s argument, that is, that no evidence was introduced to support the “deviate sexual activity” portion of the instruction.
Affirmed.
Dudley and Brown, JJ., dissent. | [
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Tom Glaze, Justice.
Appellee Teresa Mulling filed suit for divorce against appellant Kevin Mulling, and after a contested hearing, the chancellor granted Teresa a divorce and awarded her custody of the parties’ three children. Kevin, who had resigned his job during the pendency of the action, was ordered to pay $117.00 child support per week, which sum would be reduced to $107.00 per week when Teresa commenced receiving one-half of Kevin’s $306.01 monthly pension. The chancellor further ordered Kevin to pay $1.00 per month alimony for a five-year period, but alimony would terminate upon Teresa’s remarriage or death. The trial judge also approved the parties’ settlement concerning household effects, automobiles and personal effects, including the already equally divided equity from the sale of the parties’ “jointly-owned” house. Kevin appeals from (1) the chancellor’s award of alimony and (2) the judge’s failure to award Kevin the first $8,000.00 from the parties’ equity in the house proceeds. In arguing his second point, Kevin argues the $8,000.00 amount he seeks can be traced to his separate property owned prior to marriage.
Kevin first argues the evidence is insufficient to support an alimony award. This court has held that the chancellor can make an award of alimony that is reasonable under the circumstances. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); Ark. Code Ann. § 9-12-312(a)(1) (Repl. 1993). The court has also said that the purpose of alimony is to rectify economic imbalance in earning power and standard of living in light of the particular facts in each case. The primary factors to be considered are the need of one spouse and the other spouse’s ability to pay. Id.; see also Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), (where this court listed illustrative factors courts have used when fixing the alimony amount).
In this case, the parties have been married thirteen years, and Teresa bore three children during the marriage. Although Teresa had obtained a marketing degree from the University of North Alabama, she never worked after her marriage to Kevin. During college and immediately prior to marriage, Teresa had worked as a legal secretary and also as a health physics technician with the Tennessee Valley Authority (TVA). After filing for divorce, Teresa was employed as a substitute teacher in elementary school and worked as a real estate agent. Her monthly income earned during the pendency of the divorce was $85.00. Teresa testified she has no health or physical limitations, and she was trying to locate a job that would permit her to be home at night and on the weekends with the children. Teresa testified that her monthly expenses amounted to $2,038.99.
Kevin, on the other hand, is an engineer and had previously worked in that capacity at TVA and later with Entergy at Arkansas Nuclear One in Russellville. When this action commenced, his base salary was $65,000.00 a year, and he earned an additional yearly amount of $10,000.00 in overtime. Sometime after the divorce suit was filed, Kevin was apparently given the option to resign by Entergy because Kevin had a “drinking problem.” When the parties’ divorce was granted, Kevin was receiving unemployment pay in the amount of $256.00 per week. He also received a monthly pension in the sum of $306.01. Kevin testified that he could not presently get a job in his industry, but he otherwise expected he could find employment paying around $35,000.00 to $40,000.00 per year. Kevin further listed his monthly living expenses at about $735.00. At the time the parties’ divorce was granted, Kevin testified that he had spent most of the proceeds he had received from the sale of the parties’ house to meet his monthly expenses plus his child support, alimony, bills and insurance ordered under the trial court’s temporary order.
From the foregoing evidence, we cannot say the chancellor abused his discretion in reserving an award of alimony, at least for a period necessary for Teresa to reenter gainful employment. Teresa’s needs are evident, since Kevin had been the family’s sole breadwinner during the parties’ entire marriage. Also, it is clear Kevin has the capacity and ability to pay alimony based both on his past employment history and his testimony concerning future employment expectations. However, we do have problems with the manner in which the chancellor directed alimony payments be reserved and paid.
In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), Dale Grady, an attorney, had left his job, paying $1,900.00 a month, and went into solo law practice, where his net income was only $81.00 per week. There, this court held it is inequitable to hold that a spouse who may be entitled to alimony is forever barred from receiving it because the spouse who should pay it cannot do so at the moment of entry of the divorce decree. The Grady court further concluded as follows:
[I]f either spouse is entitled to alimony, the chancellor must comply with the statute by making that decision when the decree is entered. If circumstances prevent the spouse who is to pay the alimony from being able to do so, then the court may recite that fact and decline to award a specific amount. Thereafter, if circumstances change in a way that will permit the payment of alimony, the party who has been determined to be entitled to it may petition the court. By following this procedure, the court will have complied with the statute without resorting to the sort of subterfuge inherent in awarding a nominal amount.
In accordance with this court’s holding in Grady, we affirm the chancellor’s intention here to reserve the possible fixing of a specific and reasonable amount of alimony at a future time when the circumstances permit it. However, upon de novo review, we modify the chancellor’s divorce decree to reflect that Kevin’s unemployment prevents him from paying alimony at the time of entry of the decree, although Kevin’s earning capacity would otherwise warrant such an award of alimony. In accordance with Grady, the decree should read to reserve to Teresa the right to petition the trial court to establish an alimony amount if circumstances change. The five-year time constraint and other restrictions on alimony set out in the decree remain in effect.
Finally, we mention the case of Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981), which was discussed in Grady. In Ford, this court overturned the chancellor’s decision denying alimony “for the time being, but retaining jurisdiction as to the possible future needs of the wife.” While this court in Grady recognized that the decision in Ford incorrectly held the chancellor had no power to retain jurisdiction or to treat alimony as a matter “reserved for future consideration,” the Grady court did not overrule that holding in Ford. We do so now, at least to the extent the Ford holding conflicts with Grady and today’s decision. In other words, if a spouse shows a need for alimony, and the other spouse is shown to have the ability or earning capacity to pay alimony except for a circumstance at the time the parties’ decree is entered, the chancellor may reserve jurisdiction, without assigning a nominal amount. This procedure would permit the spouse requesting alimony to petition for its payment after showing a change in circumstance.
We next address Kevin’s argument that the chancellor erred in failing to award him the first $8,000.00 of the sale proceeds of the parties’ house. Sometime after the chancellor’s temporary order granting Teresa possession of the parties’ home, the parties sold the home and split approximately $45,000 in proceeds equally. The parties’ sale of their house was in keeping with the trial court’s temporary order reflecting their agreement to sell at a private sale.
Kevin and Teresa agree they had originally purchased the house in Russellville as husband and wife and held the property by the entirety. Kevin asserts, however, that before his marriage to Teresa, he had owned a house which he sold and those proceeds, $8,000, were used by Kevin and Teresa when purchasing several homes (including the Russellville house) in both their names during their marriage. Because the $8,000.00 was his nonmarital property owned prior to marriage, Kevin claims he is entitled to its return pursuant to Ark. Code Ann. §§ 9-12-315(a)(2) and (b)(1) (Repl. 1993).
Teresa counters Kevin’s argument, by stating (1) the parties’ Russellville home was held by the entirety, and accordingly, they agreed to sell and split the proceeds equally which the chancellor approved in the final decree; and (2) citing Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988), once the parties, as husband and wife, place property in their names without specifying the manner in which they take the property, a presumption arises that they own it by the entirety and it takes clear and convincing evidence to overcome that presumption. In this second instance, Teresa states that Ark. Code Ann. § 9-12-317 (Repl. 1993) is the only authority for dividing estates by the entirety, and it provides for equal division by the parties. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).
We dispose of Kevin’s second point, because the record supports the chancellor’s finding that the parties had settled their respective equity interests in their home by agreeing to sell and divide the proceeds. At trial, Teresa’s counsel objected to Kevin’s testimony concerning the sale of Kevin’s premarital home and the use of those sale proceeds in purchasing subsequent houses in both parties’ names. Teresa’s counsel pointed out to the chancellor that without Kevin’s mentioning premarital property or asserting entitlement to $8,000.00, the parties made their own settlement, agreeing to sell their house and to split the proceeds in half. While the chancellor allowed Kevin to present further testimony on this point, the chancellor at the end of the hearing specifically held that all the proceeds from the sale of the house had been properly divided, and the chancellor in his decree approved the parties’ settlement and division of proceeds. We also note again the chancellor’s earlier témporary order which acknowledged that the parties had already agreed to sell their home. While no mention or distribution of the sale proceeds appeared in the temporary order, the record reflects Kevin waited until the final hearing, several months after selling the property, to assert his $8,000.00 premarital property claim. Because we uphold the chancellor’s approving the parties’ settlement of their equity interests in their home, we affirm.
We should add that, regardless of the parties’ decision to sell their house and equally divide the proceeds, Kevin’s argument would still fail. Case law has held that, when a husband and wife purchase property as a tenancy by the entirety, there arises a presumption of a gift from the party furnishing the greater part of the consideration to the other party, which although rebuttable, is strong and can be overcome only by clear and convincing evidence. Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985); see also McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991); cf. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). In the present case, we carefully reviewed the record and find no evidence to rebut the presumption of the $8,000.00 being a gift.
For the reasons above, we affirm as modified. | [
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Donald L. Corbin, Justice.
Appellant, Phil Stratton, appeals the amended order of the Faulkner County Circuit Court, filed on November 15, 1995, granting the motion to dismiss of appellee, Arkansas State Highway Commission, for the reason that appellant’s suit against a constitutional agency of the State of Arkansas is an impermissible suit against the State. Appellant, who is an attorney, commenced this action against a former client, Harve Newton, and appellee. Appellant seeks judgment for his contingency fee for legal services rendered to Mr. Newton in a separate action that was instituted by Mr. Newton against appellee and was settled by appellee’s cash payment directly to Mr. Newton. Appellant’s claim against Mr. Newton, now deceased, was revived in the name of the special administrator and remains outstanding. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We do not reach the merits of this appeal because the judgment of the trial court does not comply with Ark. R. Civ. P. 54(b).
Although the parties do not raise this issue, compliance with Rule 54(b) is a jurisdictional matter which this court is required to raise sua sponte. Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995). Rule 54(b) provides that, when multiple claims or multiple parties are involved, the trial court may direct the entry of a final judgment as to one or more, but fewer than all of the claims or parties “only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b) provides that, in the absence of such determination and direction, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or the parties.
Here, the trial court entered judgment for appellee only. The trial court’s order, as abstracted, reads as follows:
9.
AMENDED ORDER OF DISMISSAL
On November 15, 1995 the court below entered its amended order of dismissal pursuant to Rule 54 (b) Arkansas Rules of Civil Procedure dismissing appellee as a party defendant for the reason appellant’s suit as to appellee was an impermissible suit against the state.
Plainly, the order fails to set forth the requisite express determination, supported by specific factual findings, that there is no just reason to delay the entry of a final judgment. We have previously held that, where no such determination is made, we will dismiss the appeal for noncompliance with Rule 54(b). Barnhart v. City of Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994). We have repeatedly held that, where the abstracted order fails to set forth specific factual findings supporting the trial court’s judgment, we will dismiss the appeal for noncompliance with Rule 54(b). E.g., Reeves, 321 Ark. 28, 899 S.W.2d 841; Wormald U.S., Inc. v. Cedar Chemical Corp., 316 Ark. 434, 873 S.W.2d 152 (1994); Davis v. Wausau Ins. Co., 315 Ark. 330, 867 S.W.2d 444 (1993); Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). We must rely upon the abstracted order because, “as we have often explained, there is only one record and there are seven members of this court. The seven of us will not attempt to use one record.” Reeves, 321 Ark. at 30, 899 S.W.2d at 842.
Thus, we dismiss the appeal without prejudice to refile it at a later date, and remand the case to the trial court for further proceedings. Reeves, 321 Ark. 28, 899 S.W.2d 841; Barnhart, 316 Ark. 742, 875 S.W.2d 79.
Appeal dismissed. | [
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Bradley D. Jesson, Chief Justice.
The issue on appeal is whether the trial court erred in denying the appellant’s motion to set aside a default judgment. We hold that the default judgment should have been set aside and therefore reverse and remand the case.
On September 30, 1993, Vallie Cartwright filed a complaint in Phillips County Circuit Court naming “DeBartlo, Inc.” as defendant. The complaint alleged that “DeBartlo, Inc.” was an out-of-state corporation and the owner of Raleigh Springs Mall in Memphis. Ms. Cartwright claimed that on June 21, 1992, she slipped and fell at the mall and that her injuries were proximately caused by the defendant’s negligence. A summons was likewise directed to “DeBartlo, Inc.”
The complaint and summons were sent by certified mail to Prentice Hall Corporate Services, Inc. in Little Rock, purportedly the agent for service of process in Arkansas for “DeBartlo, Inc.” Prentice Hall received the suit papers on October 4, 1993, and immediately returned them to Ms. Cartwright’s counsel. The papers were accompanied by a letter stating that service was improper because the name of the corporate defendant was incorrect.
On October 14, 1993, Ms. Cartwright filed an amended complaint. It did not adopt and incorporate the original com plaint, or make any reference to it. However, it was the same in all respects as the original complaint except the defendant’s name had been changed to “Edward J. DeBartolo Corporation.” The amended complaint and summons were sent to Prentice Hall and received on October 18, 1993. Fifteen days later, on November 2, 1993, a default judgment was entered against “DeBartlo, Inc. (a/k/a Edward J. DeBartolo Corporation)”. The judgment declared that the corporation had failed to answer the complaint against it within 20 days.
On November 5, 1993, eighteen days after service of the amended complaint, the appellant filed two pleadings: a motion to dismiss, primarily alleging lack of personal jurisdiction, and a motion to set aside the default judgment. In its motion to set aside, the appellant claimed that it had twenty days from the date the amended complaint was served in which to file a response, thereby making the November 2 default judgment premature.
The trial court denied the motion to set aside and found that the appellant’s time for responding was measured from October 4 — the date the original complaint naming “DeBartlo, Inc.” was served on Prentice Hall. In two subsequent motions, the appellant asked for a ruling on the personal jurisdiction question. No hearing was held, but the court ultimately found that service on the appellant’s Arkansas agent and the appellant’s appearance on the motion to set aside waived any objection to jurisdiction. On June 22, 1994, the court entered its final order, awarding $7,500 in damages to Ms. Cartwright.
The appellant presents two arguments: 1) the October 4 service was defective because it did not contain the correct corporate name of the defendant, and 2) its time for response should have been measured from service of the amended complaint rather than the original complaint. Because we agree with the appellant’s second argument, it is not necessary to reach the first.
Rule 15(a) of the Arkansas Rules of Civil Procedure provides that a party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer. Assuming, strictly for the sake of explanation, that both the October 4 service and the October 18 service were proper, the appellant had the longer of the following times to respond: 1) the time remaining for response to the original complaint (response due October 24), or 2) twenty days after service of the amended complaint (response due November 7). The longer of the two periods would have made the response due November 7. Therefore, the appellant was not in default when judgment was entered against it on November 2. Further, its motion to dismiss filed on November 5 was a timely response to the amended complaint.
The appellee relies on the case of Tom E. Jones Constr. Co. v. Holmes, 11 Ark. App. 88, 666 S.W.2d 412 (1984), to support her argument that the response time should be measured from service of the original pleading. In that case, Jones was sued and served with an original complaint. Twelve days later, the plaintiff filed an amended complaint adding another defendant. Jones failed to answer the original complaint in a timely fashion, but argued that the filing of an amended complaint extended its response time. The court of appeals disagreed and upheld entry of a default judgment. The facts are somewhat distinguishable from this case. Jones, unlike the appellant herein, was never served with an amended complaint, so was hardly in a position to argue entitlement to additional response time. However, despite the distinguishing factors in Jones, it contains some broad language which could be read to say that, in a situation like the instant one, the filing of an amended complaint does not affect the defendant’s time for response. To the extent that Jones conflicts with our holding today, it is overruled.
We have found one case from another jurisdiction which contains a similar fact situation. In Reichert v. TRW, Inc., 531 Pa. 193, 611 A.2d 1191 (1992), a defendant, Falcon, did not respond to an original complaint, claiming service was defective. Prior to seeking a default judgment against Falcon, the plaintiff filed an amended complaint. The Pennsylvania court did not address the issue of defective service of the original complaint, but instead considered the amended complaint the operative pleading. The court stated:
[the] appellees, by not taking the default prior to the amendment [of their complaint] and by including Falcon in their amended complaint, foreclosed their ability for default judgment on the original complaint.
The Reichert case incorporates the widely recognized doctrine that an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint. See C. Wright, A. Miller, & M. Kane, 6 Federal Practice and Procedure, §1476 at 556-57 (1990); J. Moore, 3 Moore's Federal Practice, §15-08[7] (2d ed. 1995); W. L. Scott, Inc. v. Madras Aerotech, Inc., 103 Idaho 736, 653 P.2d 791 (1982); Hall v. Insurance Co. of North America, 666 A.2d 805 (R.I. 1995); In re Marriage of Lockwood, 857 P.2d 557 (Colo. App. 1993).
Based upon the foregoing, we hold that the appellant’s time for response should have been calculated from the date of service of the amended complaint. Therefore, the entry of a default judgment prior to the expiration of the response time was improper.
The appellant raises one additional issue on appeal, arguing that it was not subject to the jurisdiction of the Arkansas courts. The record does not reflect that the matter was fully developed at the trial level. A motion to dismiss and brief in support were filed, alleging a lack of contacts with the state of Arkansas. Later, the appellant supplemented the motion with an affidavit from a corporate representative. No response was filed by the appellee, nor was a hearing held on the matter.
It is possible that the trial judge, in light of the entry of default judgment, did not feel it necessary to fully explore the jurisdictional issue. Since the default judgment is now set aside, this issue may be revisited upon remand.
Reversed and remanded.
Special Justices Mary Ann Westphal, Jerry Canfield and Charlene Marsh join in this opinion.
Dudley, Glaze and Corbin, JJ., not participating.
The parties and the court apparently thought that, since the appellant had an agent for service in the state of Arkansas, it was not entitled to the thirty days response time accorded to nonresidents. See ARCP Rule 12(a). In fact, the appellant did have thirty days. See Citicorp Industrial Credit, Inc. v. Wal-Mart Stores, 305 Ark. 530, 809 S.W.2d 815 (1991). However, this misunderstanding does not affect our holding and we mention it only for the purpose of clarity.
The appellee argues that the appeal does not arise from a final, appealable order. The court entered a default judgment and awarded monetary damages. The notice of appeal recites that appeal is taken from the entry of the default judgment and that the court entered its final order on June 22, 1994. There is no defect in the notice of appeal and the court’s June 22 order was a final one. | [
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Per Curiam.
George Stone, attorney for appellant, is directed to appear before this court on February 26, 1996, at 9 a.m. and show cause why he should not be held in contempt of this court for failure to file the appellant’s brief in accordance with this court’s Per Curiam Order of April 24, 1995.
Order Issued. | [
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Robert L. Brown, Justice.
The appellant, Eldridge Ray Parnell, was convicted of rape. He appeals on the basis that the State’s case was premised on his causing the crime of rape between his two adopted children and that what occurred between the two children did not constitute rape under Arkansas law. Accordingly, he maintains that he could not be guilty of the crime. We disagree, and we affirm the conviction.
The facts in this case were developed at Parnell’s trial. Audrey Parnell testified that she married Parnell in 1989 and he adopted her two children, B.P. and E.P., in 1991. Parnell worked as a radio dispatcher on the night shift at the Craighead County jail. Toward the end of July in 1993, Parnell suffered a work-related injury while attempting to lock up a prisoner and was off work for ninety days. During this time, he was home with the children.
On February 4, 1994, Audrey Parnell had a conversation with her son, B.P. She testified that her son told her that Parnell had forced him to have sex with his sister, E.P. At the time of these events, B.P. was age 9 or 10 and E.P. was age 8. When Audrey Parnell confronted Parnell by telephone with what B.P. had told her, he responded that he caught the kids “doing things with each other” in B.P.’s bedroom, and “he told them to go for it.” Following this conversation, she called the child abuse agency, SCAN, and removed the children from Parnell’s house. The next day, on February 5, 1994, she took the children to St. Bernard’s Hospital in Jonesboro for a physical examination. Later, she initiated divorce proceedings. The divorce was final by the time of Parnell’s trial.
Parnell was initially charged with sexual abuse in the first degree and sexual solicitation of a child less than age 14. The information was amended three months later to include a rape count.
B.P. testified at trial that Parnell “made me stick my front private part in my sister’s mouth.” He further testified that Parnell made him “put his front private in his sister’s back private.” He testified that this would occur in the afternoon when his mother was at work or at the mall or the store. He agreed that it happened more than 10 times. B.P. also testified that Parnell told them that if they told their mother, she would be put in jail and the children would go to a foster home. B.P. admitted that he eventually told his mother.
E.P. testified that Parnell made her perform oral sex on her brother and made her brother perform sex with her in her “back private.” She added, “He said if we didn’t do it, he would put us in jail.” E.P. testified that appellant made B.P. do this to her because she was “talking.” E.P. agreed that it happened more than five or six times. E.P. also testified that Parnell once summoned her into the bathroom and made her rub his penis. A nurse, Tracey Pilgrim, confirmed in her testimony that E.P. told her at the hospital essentially the same thing about sex with her brother.
Parnell moved for a directed verdict on all charges at the close of the State’s case and argued that the State had failed to prove the elements of rape, sexual abuse in the first degree, or sexual solicitation of a child. The trial court denied the motion for directed verdict on all counts. Parnell then took the stand in his own defense and denied that he ever caused B.P. and E.P. to have sexual relations. The jury convicted Parnell of rape and sexual abuse in the first degree, and he was sentenced to ten years imprisonment for rape and three years probation for sexual abuse.
Parnell first contends in this appeal that he had no notice prior to trial that the State would proceed on a complicity theory in establishing its case for rape. The facts in this case belie that contention. The criminal information expressly charged Parnell with rape by forcing his adopted children to engage in sexual relations. More importantly, though, Parnell’s counsel never argued his lack of notice of the State’s theory of the case to the trial court either by way of a motion for directed verdict or an objection to instructions. We do not entertain arguments raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Arkansas Office of Child Support Enforcement v. House, 320 Ark. 423, 897 S.W.2d 565 (1995). This point, therefore, is not preserved for our review.
The crux of Parnell’s appeal centers on his argument that he cannot be guilty of causing rape if the two children themselves were not guilty of that crime. We begin by quoting pertinent parts of the statutory definition of rape:
(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; or
(2) Who is incapable of consent because he is physically helpless; or
(3) Who is less than fourteen (14) years of age.
It is an affirmative defense to prosecution under this subdivision that the actor was not more than two (2) years older than the victim. . . .
Ark. Code Ann. § 5-14-103 (Repl. 1993). The statute is precise in stating that one commits the crime of rape if he engages in sexual intercourse with a person who is less than 14 years of age.
In the instant case, B.P. was 9 or 10 at the time of his sexual relations with his sister, and E.P. was 8. Under our juvenile statutes, a 10-year-old may be subject to commitment as a juvenile delinquent for the crime of rape. Ark. Code Ann. § 9-27-303 (11) (Repl. 1993). But regardless of that fact, B.P. had clear defenses to any such charge because he acted under the duress of his adoptive father and because he was no more than 2 years older than his sister at the time of the sexual activity.
The fact that B.P. would not be guilty of a crime, however, does not inure to Parnell’s benefit. An Arkansas statute specifically embraces the circumstances of the instant case and expressly makes complicitous conduct a crime:
A person is made criminally liable for the conduct of another person when:
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.
Ark. Code Ann. § 5-2-402 (Repl. 1993); see also Ark. Code Ann. § 5-2-405 (Repl. 1993). A plain reading of § 5-2-402(3) renders Parnell criminally culpable irrespective of B.P.’s age defense or the fact that he acted only under duress. The trial court instructed the jury to this effect: “[Parnell] is criminally liable for the conduct of B.P. if, [Parnell] purposely, knowingly, or recklessly caused B.P. to engage in conduct that would constitute rape but for a defense available to B.P.” This is precisely what § 5-2-402(3) provides. As a result, the trial court committed no error in instructing the jury as it did.
Our statutory law, as codified at § 5-2-402(3), resembles § 2.06(2) of the Model Penal Code:
A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct
Model Penal Code § 2.06 (Am. L. Inst. 1985). The Comment to § 2.06(2) recognizes that the subsection is based on the universally recognized principle that one is no less guilty of the commission of a crime because he uses the overt conduct of an innocent agent. The Commentary to § 5-2-402(3), as originally codified at Ark. Code Ann. § 41-302 (Repl. 1977), specifically acknowledged § 2.06 of the Model Penal Code and this principle.
Our interpretation of § 5-2-402(3) in this matter is consistent with results reached in other jurisdictions. See Morrisey v. State, 620 A.2d 207 (Del. 1993); State v. Harvey, 736 P.2d 191 (Or. 1987); State v. Presley, 694 S.W.2d 867 (Mo. App. 1985). In Morrisey v. State, supra, the Delaware Supreme Court reviewed a case where a defendant was convicted of multiple counts of unlawful sexual intercourse for forcing two couples at apparent gunpoint to engage in various sexual acts. The defendant argued on appeal that the innocent couples were voluntary social companions and neither forced the other into sexual activity. The Supreme Court dismissed the defendant’s argument and looked both to Delaware law concerning complicitous conduct and to Model Penal Code § 2.06 in affirming the convictions. The Court stated:
It is well-established at common law that an individual is criminally culpable for causing an intermediary to commit a criminal act even though the intermediary has no criminal intent and is innocent of the substantive crime.
Morrisey, 620 A.2d at 211. The Court concluded that the innocent intermediaries were “viewed legally as only an instrumentality of the crime,” and that the defendant was the principal perpetrator. Id.
In State v. Harvey, supra, the defendant contended on appeal that he could not be convicted of rape for forcing his 14-year-old son to engage in sexual acts with his 11-year-old stepdaughter. The Oregon Court of Appeals agreed, but the Oregon Supreme Court reversed and reinstated the rape convictions. In doing so, the Supreme Court invoked an Oregon statute on complicity which is similar to ours in Arkansas and wrote that under the statute it “is no defense for the adult defendant that his juvenile son could not be criminally tried for first degree rape although an adult could be.” Harvey, 736 P.2d at 192.
And, finally, in State v. Presley, supra, the defendant was charged with rape for aiding and encouraging his 14-year-old stepson to have sexual intercourse with his adoptive daughter who was less than 14. The defendant argued that due to the age of his stepson, he could not be guilty of rape, but the Missouri Court of Appeals held that that fact did not absolve the defendant under Missouri statutes. The Court observed that Missouri’s complicity statute included, as a basis for liability, instances when a defendant causes an innocent person to commit the criminal acts.
The trial court, in the instant case, committed no error in ruling as it did.
Affirmed. | [
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David Newbern, Justice.
Barbara Patterson, the appellant, brought this wrongful death action as personal representative of her daughter, Catherine Patterson, who was killed in a 1987 auto mobile collision. Catherine Patterson was a passenger in a car which belonged to appellees Donald B. Odell, Sr., and Ida J. Odell. The Odell’s car was being driven by their son, appellee Donald B. Odell, Jr., when it collided with one driven by appellee Eric T. Vollmer. Catherine Patterson died from a head injury received in the crash. Negligence on the part of each driver was alleged. A jury returned a verdict in favor of the drivers, and a judgment was entered in their favor.
Barbara Patterson contends the Trial Court erred by granting a motion in limine to prohibit introduction of evidence that both drivers pleaded nolo contendere to the charge of negligent homicide resulting from the collision. She also asserts error in failure to grant a new trial on the ground that the verdict was contrary to the preponderance of the evidence. We affirm the judgment.
The Odell vehicle in which Catherine Patterson was a passenger was a 1970 Volkswagen “Bug.” A light mist was falling as Mr. Odell drove east on Lee Avenue. Mr. Vollmer was driving south on Elm Street. Mr. Vollmer stopped at the intersection of Lee and Elm which is designed so that a vehicle southbound on Elm must turn west, or right, onto Lee and travel a short distance before making a left hand turn to continue south on Elm. When Mr. Vollmer crossed the intersection, his Toyota was struck by Mr. Odell’s Volkswagen.
Mr. Odell and Mr. Vollmer moved in limine to suppress any evidence concerning their nolo contendere pleas to criminal charges of negligent homicide resulting from the accident. The motion was granted, thus the Trial Court refused to allow Officer Verkler, the investigating officer, to testify as to what occurred in municipal court. Ms. Patterson submitted to the Trial Court that, if allowed, she would have produced testimony from Officer Verkler that Mr. Odell and Mr. Vollmer were present in court and pleaded nolo contendere to the charge of negligent homicide. Although no formal proffer of Officer Verkler’s testimony was made, it is clear that the substance of the testimony excluded was apparent and was made known to the Trial Court. See Ark. R. Evid. 103(a)(2); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983).
Ms. Patterson produced testimony from Officer Howard, an expert in accident reconstruction, who examined the scene at the time of the accident. He estimated that the impact speed of Mr. Odell’s vehicle was 59 miles per hour and that Mr. Vollmer’s speed was 23 miles per hour. He also testified that a person could see from the intersection approximately 151 feet west (the direction from which the Odell vehicle came) of the intersection and that Mr. Odell and Mr. Vollmer should have been able to see each other in time to avoid the accident if each had maintained a proper lookout. Officer Howard added that the view of the intersection from the stop sign on Elm was obscured by foliage.
Mr. Vollmer, who is blind in his right eye, testified he was very familiar with the intersection and that he stopped at the stop sign and then rolled forward slowly so that he could see down the street. He said he turned his head further to the right to compensate for his blindness and that he did not know why he had not seen the Odell vehicle. He said he did not think Mr. Odell was at fault for the accident. Mr. Odell, who was rendered unconscious in the accident, testified he had no recollection of it and could not remember how fast he was driving. He stated he did not feel he was responsible for the accident.
Mr. Bentley, an accident reconstruction expert, testified for the defense. He opined that the impact speed was probably between 33 and 37 miles per hour for the Odell vehicle and 11 to 13 miles per hour for the Vollmer vehicle. He stated that the basis for his opinion was a drag coefficient which was lower than Officer Howard’s and the results of crash tests which showed that there would have been far more extensive damage to the Volkswagen than that which it sustained had it been going nearly 60 miles per hour. Mr. Bentley disagreed with the drag coefficient used by Officer Howard to estimate the point of impact speed because he believed it failed to take into account the polished surface of the road, the wet conditions, and the weight of all three passengers in the Odell vehicle. He also said Officer Howard confused a skid mark, which is helpful in determining impact speed, with a yaw mark which is not helpful. Finally, Mr. Bentley stated that the accident was unavoidable.
1. Exclusion of the nolo contendere pleas
It is important to realize at the outset of this discussion that it does not involve admissibility of any conviction which may have been based upon the pleas of nolo contendere. The negligent homicide charges were brought pursuant to Ark. Code Ann. § 27-50-307 (Repl. 1994), and Ark. Code Ann. § 27-50-804 (Repl. 1994), which provide that “No record of . . . the conviction of any person for any violation of this subtitle shall be admissible as evidence in any court in any civil action.” Both statutes are contained in subtitle 4 entitled “Motor Vehicular Traffic.” There was no attempt to introduce a conviction record, so the question is whether the pleas alone may be introduced.
No doubt a conviction based on a plea of nolo contendere with respect to other than a traffic offense may be admissible in a subsequent criminal trial, see Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Lewis v. State, 258 Ark. 242, 523 S.W.2d 920 (1975), and a plea of guilty may be admissible as a statement against interest in a subsequent civil case MFA Mut. Ins. Co. v. Dixon, 243 F.Supp. 806 (W.D. Ark. 1965), but those cases do not answer the question here.
Ms. Patterson bases her argument largely on the wording of Ark. R. Evid. 410 which provides:
Withdrawn pleas and offers. — Evidence of a plea later withdrawn, of guilty, or admission of the charge, or nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.
Ms. Patterson argues that the rule, by its plain language taken from the Uniform Rules of Evidence, only applies to suppression of a plea of nolo contendere if it is later withdrawn. She then submits that, as the rules do not specifically address a nolo contendere plea which is not withdrawn, it is admissible in the same manner as a guilty plea. Obviously, the language of rule 410 does not “authorize” in so many words the admission of a nolo contendere plea. The rule does no more than disallow withdrawn pleas. Ms. Patterson’s argument thus must be based upon an implication rather than a direct statement in the rule.
The argument is buttressed by Ms. Patterson’s citations to the federal and other state rules which, unlike the original uni form rule 410 which we have retained, have been altered to provide that a withdrawn plea of guilty is inadmissible as is a plea of nolo contendere, whether or not withdrawn. Her contention is that the failure to make the change in the Arkansas rule indicates an intent on the part of the drafters that a nolo contendere plea be admissible. She points out that in some other states which have left the language as we have it here there is to be found an expression of intent that nolo contendere pleas be admissible. See, e.g., Rhode Island Rule of Evidence 410 and Advisory Committee Notes (1994). She does not suggest that there is any such expression in the law of Arkansas.
Ms. Patterson especially wanted the plea of Mr. Odell entered in order to impeach his statement that he felt no responsibility for the accident. We assume she also feels that the plea of Mr. Vollmer amounted to some sort of statement with respect to whether he was guilty of negligence. She contends the pleas were admissible in accordance with Ark. R. Evid. 613 which deals with a “prior inconsistent statement,” and Rule 801(d)(2) concerning an “admission” of a party opponent. These contentions require consideration of the nature of a plea of nolo contendere.
Generally, a plea of guilty in open court is admissible as a declaration against interest. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). “A plea of guilty for traffic violation for the identical traffic mishap is certainly a declaration against interest and such plea of guilty is as admissible as any other declaration against interest in any other case.” Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962).
We have been cited to no Arkansas authority which defines or describes the effect of a nolo contendere plea, and we have found none. Black’s Law Dictionary, p. 591 (5th ed. 1979), defines and describes it as follows:
Latin phrase meaning “I will not contest it”: a plea in a criminal case which has a similar legal effect as pleading guilty. Hudson v. U.S. 272 U.S. 451 ... Type of plea which may be entered with leave of court to a criminal complaint or indictment by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it. The principal difference between a plea of guilty and a plea of nolo contendere is that the latter may not be used against the defendant in a civil action based upon the same acts.
* * *
The history of the plea of nolo contendere is recited in Hudson v. U.S., 272 U.S. 451 (1926), where the Supreme Court, in an obiter dictum, stated, “Like the implied confession, this plea does not create an estoppel [of the defendant to plead and prove his innocence in a civil action], but, like the plea of guilty, it is an admission of guilt for the purposes of the case. [Emphasis supplied.]”
The Trial Court stated his reasons for granting the motion in limine as follows:
First of all, I found no precedent for [allowing evidence of a plea of nolo contendere] in the state. Secondly, the attorney who wanted to offer that testimony, it took him several pages in his brief to explain the nature of a nolo contendere plea in Arkansas and all that it entails, and I believe, in order to let that in, you have to allow all of the testimony on both sides about what a nolo contendere entails and what it doesn’t, and I don’t want to add to the trial by putting all that extra in ... .
The decision on the motion is subject to two interpretations. The implied reference to confusing the jury and undue delay suggest perhaps the Trial Court intended the ruling to be pursuant to Ark. R. Evid. 403 which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
On the other hand, it may have been the Trial Court’s intention to hold that evidence of a plea of nolo contendere is inadmissible because it would require additional evidence as it simply has no meaning. The plea may, of course, be entered because an accused who does not wish to admit guilt wants to avoid the financial and emotional expenditures attendant upon a criminal trial and is thus willing to accept punishment. That is the tradi tional view, as expressed in the Hudson case and in others such as U.S. v. Morrow, 537 F.2d 120 (5th Cir. 1976), in which it was held, quoting Mickler v. Fahs, 243 F.2d 515 (5th Cir. 1957):
A plea of nolo contendere is a mere statement of unwillingness to contest and no more. It is not receivable in another proceeding as evidence of guilt.... The same reasons which make the evidence of a plea of nolo contendere inadmissible as an admission will exclude it in a jury trial when offered for the purposes of impeachment.
See also People v. Daiboch, 265 N.Y. 125, 191 N.E. 859 (1934); Dalweld Co. v. Westinghouse Elec. Corp., 252 F.Supp. 939 (S.D.N.Y. 1966).
Other older cases, not based on a codified rule of evidence, seem to say only that one who has pleaded nolo contendere is not estopped thereby from proving his or her innocence in a related civil proceeding, an allusion found in the quotation from the Hudson case, supra. State v. Bridgett, 210 A.2d 182 (Conn. App. 1965); Kravis v. Hock, 136 N.J.L. 161, 54 A.2d 778 (1947). Presumably such a holding would admit evidence of the plea but permit explanation of it, thus adding an element to the civil proceeding which could have a distracting if not highly prejudicial effect.
We prefer the rule which excludes evidence of the plea altogether. While the Trial Court’s ruling may have been on the basis of Rule 403 rather than on the basis of inadmissibility of the evidence, we are at liberty to affirm for a reason different from the one he expressed. Hubbard v. The Shores Group Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Summers Chevrolet Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992).
2. The new trial motion
When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, Ark. R. Civ. P. 59(a)(6), we affirm if the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible in accordance with the proof. First Marine Ins. Co. v. Booth, 317 Ark. 91, 876 S.W.2d 255 (1994); Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993).
Essentially, Ms. Patterson contends that there was not sufficient evidence to support the jury verdict because the accident could not have happened if both drivers were free of negligence. She contends Mr. Vollmer was negligent for failing to see Mr. Odell, and failing to yield the right of way, or that Mr. Odell was negligent for speeding and failing to keep a proper lookout. She relies primarily on the testimony of her expert witness, much of whose testimony was contradicted by the expert produced by the defense. It is within the province of the jury to believe or disbelieve the testimony of any witness, Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989), and the rebuttal evidence was substantial.
Affirmed.
Brown and Roaf, J.J., concur.
Glaze, J., not participating. | [
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Per Curiam.
On January 16, 1996, we granted the appellant’s petition for writ of certiorari to complete the record in this capital-murder case. The writ was returnable on February 15, 1996. On that date, appellant, Charles Allen McGehee, through his attorney, William M. Howard, Jr., filed this motion for extension of time for the court reporter, Val Dixon-Sims, to complete the record. Attached to the motion is a written statement from Ms. Dixon-Sims informing us that her records, including tapes relating to this case, were vandalized on January 17, 1995. A partial transcript has been filed in this case, but the contents of certain bench conferences have not been included, despite Ms. Dixon-Sims’s contention that she recorded them at trial and has since transcribed “what [she] could of the proceedings.”
Consequently, we grant appellant’s motion and direct the trial court, court clerk, court reporter, and counsel for appellant and appellee to attempt to reconstruct the missing parts of the record and to settle the record in this case in accordance with Ark. R. App. P. Civ. 6(d), made applicable in criminal cases pursuant to Ark. R. App. P. Crim. 5(a). See West v. State, 322 Ark. 114, 907 S.W.2d 133 (1995) (per curiam). The record must be settled and returned within thirty days from the date of this opinion. | [
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Andree Layton Roaf, Justice.
This appeal arises out of a motor vehicle collision. Appellant Dennis Lamond Thompson filed suit against appellee Chester A. Perkins for personal injuries and property damage to his motorcycle. Appellee Perkins counterclaimed for property damage to his automobile. The jury returned a general verdict finding against Thompson on his complaint and against Perkins on his counterclaim. On appeal, Thompson asserts that the trial court erred (1) in allowing Thompson’s lay opinion as to which party had the “right-of-way” and (2) in allowing testimony concerning the health of Perkins’ wife, the treatment she was receiving at the time of the accident, and the fact that Perkins was employed. We affirm.
Facts
The collision occurred in April of 1989 at the intersection of an access road adjacent to the northbound lane of Interstate 55 in West Memphis, and the entrance ramp to Interstate 55. Appellant was riding his motorcycle in the southbound lane of the access road, and appellee was driving his automobile in the northbound lane of the access road. In order to enter Interstate 55, a northbound vehicle must cross at a diagonal the southbound lane of the access road.
According to appellant’s testimony, as he approached the intersection of the access road and the entrance ramp he observed that he had a yield sign, slowed down to approximately fifteen miles per hour, observed four or five vehicles approaching in the northbound lane, including appellees, noted that none had on a left turn signal and proceeded through the intersection. The collision occurred in the southbound lane. Appellee testified that he turned on his turn signal one or two car lengths before he left the northbound lane and that he did not see the motorcycle until it was within twenty or thirty feet of his vehicle, and he was already in the southbound lane.
a. Lay Opinion
Appellant argues the trial court erred in allowing appellee’s attorney to elicit his lay opinion as to which party had the “right of way.” During cross-examination, appellant stated that at the time he gave a deposition he felt that the cars he was meeting had the right-of-way. Appellant’s attorney objected to the question on the basis that A.R.E. Rule 701 provides that a lay witness’s opinion is not admissible if it is not helpful to a clear understanding of his testimony. The trial court overruled the appellant’s objection, first characterizing it as an admission against interest, and later stating that “this is lay testimony [and] [l]ay witnesses can give opinions.”
On appeal, appellant asserts that his opinion testimony did not satisfy the second requirement of A.R.E. Rule 701, that the testimony be helpful. Arkansas Rule of Evidence 701 provides:
Opinion testimony by lay witnesses. — If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
Appellant contends the “jury could have determined, absent appellant’s testimony, which party had the right-of-way based upon all facts presented in the case and the law as instructed by the Court” and the opinion testimony did not aid the jury in determining any fact in issue.
We have said that Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). In Carton v. Missouri Pac. R.R., we said:
[E]ven if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. (Citations omitted.)
Further, testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. A.R.E. Rule 704; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).
Here, appellant’s testimony regarding the right-of-way was based on observed facts provided in his testimony — the location of his motorcycle, the oncoming vehicles in the northbound lane, and the yield sign. His opinion that appellee had the right-of-way is one which a normal person would form on the basis of the facts observed, and his opinion testimony did not mandate a legal conclusion. See Davlin v. State, supra; Carton v. Missouri Pac. R.R., supra. Finally, his opinion was helpful to the determination of a fact in issue, whether appellee was negligent. Thus, the trial court did not abuse its discretion in admitting the testimony. See Scroggins v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991); see also Robinson v. Bump, 894 F.2d 758 (5th Cir. 1990)(admission in negligence action of lay opinion that defendant was “in total control” of vehicle not an abuse of discretion); Young v. Illinois Cent. Gulf R. Co., 618 F.2d 332 (5th Cir. 1980)(testimony from lay witnesses concerning their impression of condition of railroad crossing improperly excluded).
Appellant also submits that if the lay opinion “in some unknown way satisfied both parts of Rule 701,” then the relevance of the testimony was substantially outweighed by the unfair prejudice. This theory, however, was not presented to the trial court and we will not address a different argument raised for the first time on appeal. See Davis v. State, 317 Ark. 592, 879 S. W.2d 439 (1994).
Appellant finally asserts that the “error” in allowing the lay opinion testimony was compounded when the trial court permitted appellee to read into evidence appellant’s deposition testimony regarding the right-of-way. The appellant submits the deposition testimony had no relevance and was cumulative because all facts had been presented to the jury, including his earlier testimony regarding the right-of-way. He contends that, even if the deposition testimony was relevant, it should have been excluded pursuant to A.R.E. Rule 403. The trial court determined the evidence had already been presented, but no prejudice would result “in this being read further into evidence.” We have stated that we will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).
In addition, prior to appellee’s reading of appellant’s deposition, appellant’s counsel read into evidence a portion of the deposition in which appellant stated that because appellee failed to use a turn signal, he assumed appellee was not turning and he therefore had the right-of-way. Arkansas Rule of Civil Procedure 32(a)(4) provides that if only a part of a deposition is offered in evidence by a party, any party may introduce any other parts. See also Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 778 S.W.2d 526 (1994). We cannot say the trial court abused its discretion in allowing the lay opinion testimony of the appellant.
b. Appellee’s Employment and Health of Spouse
Appellant argues the trial court erred in allowing testimony concerning the health of appellee’s spouse, treatment she was receiving at the time of the incident, and that appellee was employed. Prior to appellee taking the stand, the appellant moved to prohibit him from testifying that he was still working and that his wife had cancer. The appellant asserted the only claim being made by appellee was for property damage; therefore, the testimony regarding his wife’s health was not relevant under A.R.E. Rule 402. As to the testimony regarding Mr. Perkins’ employment status, the appellant also contended at trial that if the testimony was relevant it was prejudicial and should be excluded under A.R.E. Rule 403. The trial court concluded it would permit appellee to testify regarding why he was on the road, what type of treatment his wife was receiving, and his employment status.
Appellee testified that he was seventy-eight years old and he worked at Johnny Rye Grocery in Tyronza. He stated that at the time of the accident, his wife was in the vehicle with him, and that they were returning home from West Memphis, where his wife was being treated for cancer. He stated they had gone back several times for her checkups, and he was familiar with the intersection where the accident occurred. Finally, appellee testified his wife was not present at the trial because her doctor did not want her to attend.
On appeal, the appellant asserts the testimony in question “was in no way relevant to any issue involved in the underlying lawsuit.” Accordingly, the appellant submits the testimony should have been excluded pursuant to A.R.E. Rule 402. Arkansas Rule of Evidence 402 provides:
Relevant evidence generally admissible — Irrelevant evidence inadmissible. — All 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.
A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). Further, we will not reverse a trial court’s weighing of probative value against unfair prejudice under Rule 403 unless there has been a manifest abuse of discretion. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994); see also Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994).
Appellee asserted at trial that the fact that he was still working was relevant because he was seventy-eight years old and the jurors might question an elderly person’s driving skills. Indeed, whether appellee was negligent was the ultimate issue in the appellant’s complaint, and whether he could properly maintain and control his vehicle was relevant. Testimony that he was still employed was evidence which had a tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would have been without the evidence. A.R.E. Rule 401. We cannot say the trial court abused its discretion in concluding that the status of appellee’s employment was admissible under A.R.E. Rule 403.
The testimony regarding appellee’s familiarity with the intersection and his reason for being there was relevant to the issue of his negligence. At trial, the appellant argued the testimony was not relevant because appellee’s complaint was only for property damage; however, his complaint alleged that appellee’s negligence was the cause of the accident. Finally, we cannot say the trial court abused its discretion in permitting appellee to explain his wife’s absence as a witness. In testifying regarding his wife’s absence, Mr. Perkins was simply explaining why he was the only witness in support of his claim, and the credibility of a witness is always in issue. See A.R.E. Rule 608; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).
Affirmed.
Newbern, J., not participating. | [
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Robert L. Brown, Justice.
Appellant Brian Patrick Hansen appeals the denial of his motion to transfer the statutory rape charge (Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1995)), to juvenile court. We affirm the decision of the trial court.
The felony information filed in circuit court charged: “On or about February 12, 1995, the defendant, (DOB: 3/17/77), digitally penetrated the vagina of a ten (10) year old female . . . .” A motion to transfer the matter to juvenile court was filed, and a hearing was held on that motion on July 18, 1995. By that time, Hansen had turned 18. Julie Hansen, Hansen’s mother, testified at the hearing that he had only completed the tenth grade and had recently obtained his GED and had sought to join the Army. At the time of the charged offense, Hansen was living with his fiancee and her mother. Julie Hansen admitted on cross-examination that Hansen had previously been charged with the unauthorized use of a motor vehicle in Iowa.
The State called Mike Scott, a former juvenile intake officer with the Washington County Juvenile Court, as a witness. Scott testified that on December 6, 1993, the Fayetteville Police Department arrested Hansen on a warrant out of Iowa for two counts of burglary and one count of the unauthorized use of a vehicle. Hansen subsequently escaped in handcuffs, and he was charged with escape. The escape charge was later dropped. The disposition of the Iowa charge is unknown, but Scott indicated that Hansen received probation. He also testified that Hansen had been arraigned earlier that morning on felony charges of theft of property (a .40 caliber pistol) and fleeing. Hansen’s criminal history further reflects that other charges of theft of property and breaking and entering were nolle pressed by the State at the request of the victim.
Following the hearing, the trial court made its ruling from the bench:
Both of the attorneys recognize that this is obviously a very serious offense, these are very serious allegations, and I think standing alone it would be proper to leave this case in circuit court as opposed to transferring it as the defendant requests. I’ll just make these additional observations. The defendant has now been charged with three — or actually — yes, three — four felonies in this court: Theft of property and breaking or entering in case 95-285; rape in the case that we’re holding this hearing in, 95-457; and only today, theft of property — all felonies. Although there obviously has not been a pattern of adjudicated offenses in juvenile court, Mr. Hansen certainly has had his troubles. There’s at least a suggestion that although he was arrested as a juvenile on an Iowa warrant, he nonetheless was to some degree treated as an adult in Iowa. He apparently escaped after having been taken into custody here in Washington County on that warrant. He has not chosen to offer up any explanation as to how those cases were resolved. Therefore, in my view the likelihood of rehabilitation is remote at best, even assuming those services were available as an eighteen-year-old. Again, as pointed out by Mr. Threet [deputy prosecuting attorney], this offense allegedly occurred within a month of his eighteenth birthday and of course he is seeking to enter the Army as an adult.
I think for all those reasons, in my judgment it’s inappropriate to transfer this case. The defendant’s motion is denied.
Hansen now argues in this interlocutory appeal that the trial court’s denial of the transfer was clearly erroneous under the factors set forth in Ark. Code Ann. § 9-27-318(e) (Supp. 1995). We disagree. Briefly stated, the factors under the statute are (1) seriousness of the offense and whether violence was employed; (2) repetitive pattern of adjudicated offenses indicating that the juvenile is beyond rehabilitation; and (3) prior history and character traits reflecting on the juvenile’s prospects for rehabilitation. We have stated that in making its determination, the trial court is not required to give equal weight to each of these factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). If the trial court decides to hold the juvenile for trial as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Supp. 1995). The decision to transfer the case to circuit court will not be overturned unless it is clearly erroneous. McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995).
Statutory rape is without question a serious crime. Moreover, as the trial court noted, commitment to a juvenile facility is not available for a young person older than 18. We have previously held that the chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18. See, e.g., Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Hogan v. State, supra.
We are cognizant of the fact that by Act 1261 of 1995 the General Assembly extended commitment time for juveniles beyond age 18 under certain circumstances:
(d) Commitment shall not exceed the eighteenth birthday of a youth, unless the Department of Human Services’ State Institutional System Board determines that an adequate facility or facilities are available for youths eighteen (18) years of age or older.
Ark. Code Ann. § 9-28-208(d) (Supp. 1995). Section 9-28-208(d), however, presupposes that the youth has already been committed at the time he or she turns 18 and allows for that commitment to continue. That is not the situation in the case before us. Under these circumstances, we cannot say that the decision of the trial court was clearly erroneous in denying the transfer.
Affirmed. | [
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David Newbern, Justice.
This is an appeal from a judgment in a deceit action. Howard Butler, the appellant, brought the action against the appellee, Herman Comic, who is a notary public. Mr. Butler claimed he had suffered a loss because of a deed acknowledgment falsely notarized by Mr. Comic. Judgment was rendered in favor of Mr. Comic because there was no showing that Mr. Butler had relied on the notarization by Mr. Comic. We affirm the judgment.
The undisputed facts are as follows. Two members of the Mackintrush family, Johnny Mackintrush and his sister, presented a deed to be notarized. The quitclaim deed purported to be by ten brothers and sisters in favor of their brother “Johnny Lee Mackintrush.” Mr. Comic saw only the grantor “Johnny Mackintrush” sign the deed and took the word of Johnny Mackintrush and his sister that all the signatures were valid. He notarized the instrument, stating in his certificate that all the purported grantors were known to him to be the persons whose names were subscribed to the deed and that they “personally appeared” before him to acknowledge their signatures.
Thereafter, Johnny Lee Mackintrush sold the property by warranty deed to Mr. Butler. Mr. Butler purchased a homeowner’s policy from American General Property Insurance Company (American General). A fire loss occurred, and Mr. Butler claimed against the policy seeking $20,000 for loss of a dwelling, $10,000 for loss of contents, and $2,000 for living expenses.
In the course of investigating the claim, American General examined Mr. Butler’s title and concluded not all of the signatures on the deed to Johnny Lee Mackintrush were valid. American General refused to pay, and Mr. Butler joined his claim against it with his claim against Mr. Comic. American General settled by paying $5,000, apparently on the basis that one or two of the signatures might have been valid, and thus Mr. Butler owned some undivided interest in the property. The claim against American General was dismissed. Mr. Butler pursued his claim for the losses against Mr. Comic.
One of the five elements of the tort of deceit or fraud is “justifiable reliance on the representation”; another is “damage suffered as a result of the reliance.” Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Mr. Butler argues the Trial Court erred because the doctrine of constructive fraud supports his claim despite the lack of evidence of reliance. No such argument was made to the Trial Court, so we decline to consider it. Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994); Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993).
Mr. Butler’s only other argument is that the Trial Court should have applied the doctrine of transferred intent. As with constructive fraud, we have no evidence that the doctrine of transferred intent was presented by Mr. Butler to the Trial Court. It was, however, mentioned in the judgment, so we will answer the argument briefly.
In Fidelity Mortgage Co. v. Cook, 307 Ark. 496, 821 S.W.2d 39 (1991), we explained that, although the doctrine of transferred intent is generally not applicable in cases of misrepresentation, when a document is intended to be directed to others in addition to the immediate recipient, or where it is customary for the document to be relied upon by third parties, the doctrine of transferred intent will be applied to support a case of misrepresentation. The element of the tort of deceit supplied by the doctrine is that of intent to deceive rather than that of reliance which the Trial Court found to be missing in this case.
Mr. Butler argues that anytime one purchases real property there is reliance on the chain of title. No authority is cited in support of that statement. Although Mr. Butler testified, he did not even mention having examined Johnny Lee Mackintrush’s title. The Trial Court did not err in finding no evidence of reliance.
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Per Curiam.
The procedural facts, according to appellant’s motion, reflect the following. The judgment of conviction was entered on November 1, 1994. A “notice of appeal” was filed by a “Reverend” Stephen Womack on November 21, 1994. On November 23, 1994, counsel for appellant filed a motion to set aside the notice of appeal and also filed a motion to set aside the judgment of conviction. More than thirty days passed with no action by the trial court on either motion, yet no notice of appeal was timely filed by appellant.
On March 6, 1995, the trial court ruled that the original notice of appeal was ineffective and entered an order denying appellant’s motion to set aside the judgment of conviction. Appellant alleges that he “promptly” filed a notice of appeal. Sometime later, appellant tendered a record to the clerk of this court, but the clerk refused to file it because it was untimely.
Our automatic case tracking system, or docket book, reflects that on August 8, 1995, appellant filed a motion for a rule on the clerk. On September 18, 1995, we denied the motion “without prejudice to filing a motion for a belated appeal.” On February 13, 1996, the clerk sent a letter to appellant’s attorney requesting a status report. Finally, on February 21, 1996, over fifteen months after the judgment of conviction, appellant filed the motion for belated appeal now before us.
In this case the notice of appeal was not timely given; in addition, the record was tendered more than seven months after the entry of judgment. See Ark. R. App. P. 5(b). It is an attorney’s duty to timely give a notice of appeal and file the record. Patton v. State, 320 Ark. 271, 895 S.W.2d 531 (1995). The attorney did neither in this case. Further compounding those errors, after we denied the rule on the clerk and directed counsel to file a motion for a belated appeal, counsel waited another five months to file this motion for belated appeal.
We grant the motion, and direct that a copy of this per curiam be filed with the Committee on Professional Conduct. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). | [
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Robert H. Dudley, Justice.
This is an interlocutory appeal from an order certifying a class action. See Ark. Sup. Ct. R. 1-2(a)(12); Ark. R. App. P. 2(a)(9); and Ark. R. Civ. P. 23. We affirm the order of certification.
Appellee Dennis Lee, the class representative, alleged in his complaint that appellants Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company, Inc., require all purchasers of their automobile insurance policies to pay $35.00 in annual membership dues to the Farm Bureau Federation. He alleged that after he paid the premium, but during the effective dates of the insurance contract, he was contacted by a representative of Farm Bureau who asked him to pay the membership fee and informed him that his automobile insurance would be cancelled if he did not pay the fees. He pleaded that neither the application for insurance nor the policy specifies the premium, as required by statute; consequently, “the membership dues are invalid and further constitute a fraudulent inducement to contract.” He prayed for reformation of his insurance contract, a declaratory judgment that “all such membership dues were wrongfully collected,” and, because the companies “had been unjustly enriched,” for a constructive trust to be placed on the corpus of the funds to be distributed to members of the class. He pleaded that the class is composed of insureds who have been, continue to be, and may in the future be adversely affected by the companies’ charging membership dues, and that the numerosity requirement was met because the class consisted of more than 180,000 insureds.
The trial court ruled (1) the numerosity requirement was satisfied because the class totals over 180,000 people; (2) the commonality requirement was satisfied because the proposed class consists of “other insureds of these companies with similar type of insurance as Plaintiff Dennis Lee”; (3) the typicality requirement was satisfied because the insurance appellee had was typical of the type of automobile insurance of the other insureds of appellant; and (4) the adequate representation requirement was met because counsel for appellee “appealed] to be exerting maximum effort in behalf of his client” and had “diligently approached this case in a manner that more than meets the requirements of the law.” In addition, the court found that the questions of law or fact common to all class members predominate over any questions affecting only individual members and that costs would be prohibitive for the case to be pursued individually; thus, it was the economically feasible approach. The trial court certified the class as (1) only those insureds that have had, during the last five years, automobile insurance with one or both the defendant companies and (2) any insureds who purchased automobile insurance in Arkansas from the defendant companies within the five years immediately preceding the filing of the action.
Separately, the companies moved for summary judgment on the ground that the applicable statutes allow insurance companies to charge membership dues. The trial court denied the motion for summary judgment because there are disputed issues of material fact.
Appellant companies make a number of arguments that we do not address on appeal. In the arguments contained in their brief to this court, the companies contend that a plaintiff “individually must have a claim before he can seek certification of a class.” From that premise, they make a number of arguments about appellee’s lack of a cause of action. However, the premise is false, as the statement is an erroneous statement of the law.
Rule 23 of the Arkansas Rules of Civil Procedure, the Arkansas class-action rule as now revised, is comparable to Rule 23 of the Federal Rules of Civil Procedure. We have said that we will interpret Ark. R. Civ. P. 23 in the same manner the federal courts interpret the comparable Fed. R. Civ. P. 23. Union Nat’l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992). In Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), the Supreme Court held that a trial court does not have authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Id. at 177-78. The Court opined that a preliminary hearing on the merits might substantially prejudice the parties, since it would be unaccompanied by traditional rules and procedures applicable in civil trials. Id. at 178. It said that the proper focus of the inquiry is not “whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 [of the Federal Rules of Civil Procedure] are met.” Id. at 178 (quoting with approval Miller v. Mackey Int'l, Inc., 452 F.2d 424, 427 (5th Cir. 1971)) (emphasis added).
In Miller v. Mackey International, Inc., 452 F.2d 424 (5th. Cir. 1971), the case cited with approval in Eisen v. Car-lisle & Jacquelin, the Fifth Circuit Court of Appeals reversed an order denying a class action because the district judge improperly considered the merits of the claim in passing on the class action request. Id. at 430. The court said that, for Rule 23 purposes, it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. Id. at 427 and cases cited therein. It stressed that the propriety of a class action is “basically a procedural question.” Id. We have specifically adopted the reasoning of Eisen v. Carlisle & Jacque lin and held that an order denying or granting class certification is separate from the merits of the case. See Arkansas State Bd. of Educ. v. Magnolia Sch. Dist. No. 14, 298 Ark. 603, 769 S.W.2d 419 (1989).
In oral argument to this court, the companies’ counsel candidly admitted that the arguments in their brief were in error in asserting that they could delve into the merits of the claim, and they abandoned reliance on such a premise. Consequently, we do not address the companies’ arguments that the trial court erred in denying summary judgment, or in finding that the complaint did not state a cause of action. Further, in oral argument, the companies’ counsel forthrightly admitted that the trial court’s certification of a class was proper for the claims alleging reformation [breach of contract] and declaratory judgment, but steadfastly contended that certification was improper for claims alleging fraud. Counsel contended in oral argument that tort claims involve different amounts of damage for each member of a class, and therefore tort claims should not be allowed in class actions. Counsel for the class responded by stating that damages will not vary: The damages are the same for all members — thirty-five dollars for each year the dues were paid. We do not address the companies’ argument that allegations of fraud should not be certified since the argument was not made to the trial court.
The companies’ only remaining challenge to class certification is that the action is lacking in commonality and in typicality. The standard of review for either the grant or denial of a certification of a class action is whether the trial court abused its discretion. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); LeMarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991). In the case at bar, the common question is whether the applicable statutes preclude the companies from requiring their insureds to pay membership dues to the Farm Bureau Federation. The trial court ruled that commonality of interests and common questions of law were present. The trial court found, in part:
The record is abundant with exhibits that have been offered, that, on their face, tend rather strongly to support the argument that there are common questions of fact involved between [appellee], as a past insured of at least one of the defendant companies and a past member of the Farm Bureau Federation, and other insureds of these companies with similar type of insurance as [appellee].
The testimony showed that, to secure auto insurance from one of the defendant companies, an insured must pay the membership dues to the Farm Bureau Federation. The trial court certified as a class “only those insureds that have had, during the last five years, automobile insurance with one or both of the defendant companies” and “any insureds who purchased automobile insurance from defendant companies during the past five years preceding this case.” The trial court did not abuse its discretion in ruling on the commonality of interests; however, even if the trial court should eventually determine that the class should be splintered with respect to some individual claims, efficiency could still be achieved by resolving those common questions which predominate over individual questions. See LeMarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), and International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988).
The companies also contest the trial court’s ruling on the requirement of typicality. The trial court found that the plaintiff’s automobile insurance policy and membership dues were typical of that of others who have auto insurance with the companies. In Chequenet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we said, even if allegations about injuries and damages are different, claims are typical when they “arise from the same wrong allegedly committed against the class.” Id. at 749, 911 S.W.2d at 959. Here, the allegation is that dues were wrongfully collected by the companies. Therefore, even though some class members may collect more than others, the claims are still typical because they arise from the same alleged wrong. See also Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (quoting H. Newberg, Class Actions, § 3.13 (1985)). Thus, the trial court did not abuse its discretion in ruling on typicality.
Affirmed.
Special Chief Justice William Randal Wright and Special Justice Judy Simmons Henry join in this opinion.
Jesson, C.J., and Glaze, J., not participating. | [
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Andree Layton Roaf, Justice.
Appellant, the Prudential Insurance Company of America, appeals from a judgment in an action for accounting, in which the chancellor awarded $30,519.60 in insurance proceeds to appellees, Melissa Conrad Frazier and Mellonie Conrad. The court of appeals certified this case to us as one requiring interpretation of the Probate Code of 1949. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(d)(1) and (a)(3). For reversal, appellant argues that it properly paid the insurance proceeds to appellees’ guardian and that, under the law of trusts, it had no further obligation to appellees as beneficiaries. We find no merit to these arguments and affirm.
Appellees were aged eight and nine when their mother died on August 27, 1983. On October 25, 1983, an order was entered by the Garland County Probate Court appointing their uncle, Jerry Reid, as guardian of their persons and estates. The order stated that “bond shall be determined.” Bond was not determined and letters of guardianship were apparently never issued to Mr. Reid. On November 10, 1983, appellant paid the appellees’ $30,519.60 share of their mother’s life insurance proceeds to Reid as guardian of their estates. Reid and his wife adopted appellees in July 1984. After reaching the age of majority, appellees initiated this suit in 1994 by filing a petition for an accounting and for judgment, alleging that both Reid and appellant had failed and refused to account for the life insurance proceeds. After a bench trial, the chancellor found that Reid spent the proceeds for improper purposes and without court approval, that appellant and Reid were jointly and severally liable to appellees, and that Reid was liable to appellant for any payment of the judgment appellant made.
Unlike the dissenters, we have no difficulty in concluding that the chancellor had subject-matter jurisdiction over an action against an insurance company and former guardian for accounting and judgment. See Nelson v. Wood, 199 Ark. 1019, 137 S.W.2d 929 (1940) (chancellor imposed trust on property titled in guardian’s name but purchased with minor’s funds); Hancock v. Hancock, 197 Ark. 853, 125 S.W.2d 104 (1939) (chancery court had jurisdiction to hear custody dispute between natural mother and guardian previously appointed in probate court); Grogan v. Weatherby, 196 Ark. 705, 119 S.W.2d 557 (1938) (chancellor determined that guardian’s failure to give bond rendered proceeding void and set aside partition sale of minor’s land); A&P’s Hole-In-One, Inc. v. Moskop, 38 Ark. App. 234, 832 S.W.2d 860 (1992) (accounting is an equitable remedy; provides a means to compel one entrusted with property of another to render account of his actions, and for recovery of any balance due).
Appellant first argues that it properly paid the insurance proceeds to Reid as appellees’ guardian and was under no duty to ensure that the guardian would carry out his obligations. This argument challenges the chancellor’s finding that appellant “paid insurance proceeds to Reid without court authority and without [ejnsuring the beneficiaries would be properly protected.” Appellant presented no evidence at the bench trial. Appellant did, however, move for a directed verdict at the close of all the evidence arguing that it had properly paid Reid the proceeds on November 10, 1983, because Reid had been appointed guardian by court order entered October 25, 1983.
Appellees admitted into evidence, without objection, a certified copy of the entire file of the guardianship proceedings. The October 25, 1983 order appointing Reid guardian stated that “bond shall be determined.” There is nothing in the guardianship proceedings indicating that bond was ever determined or issued, or that letters of guardianship were ever issued. Appellees introduced a notice from the Probate file dated October 10, 1984, directing Reid to file an inventory of appellees’ assets, and Reid’s response dated November 9, 1984, which listed each appellee’s sole asset as $437.00 monthly social Security benefits. The chancellor found that Reid did not disclose the insurance proceeds he received as guardian from appellant almost one year earlier. The chancellor also found that, because the proceeds were not disclosed, no bond or additional accounting was required by the court in the guardianship proceedings.
On appeal, appellant argues it properly paid the proceeds to Reid as guardian pursuant to the October 25, 1983 order because, at that time, there was no requirement that a bond be issued in a guardianship proceeding and Reid had accepted the appointment as guardian. Appellees respond to this argument with case law to the effect that a guardian is not appointed until bond has been issued. See e.g., Sturdy v. Jacoway, 19 Ark. 499 (1858).
The parties’ reliance on the requirement of a bond or on Reid’s acceptance of appointment as the determinative issue is misplaced. The issue before us is whether appellant paid the proceeds to Reid without court authority. This issue is controlled by Ark. Stat. Ann. § 57-618 (Repl. 1971), in effect at the time the proceeds were paid, which provided that letters of guardianship, “until revoked or cancelled by the court, shall protect persons who, in good faith, act in reliance thereon.” As determined by the chancellor, no bond was ever set and no letters of guardianship were ever issued. The Probate code of 1949 did not authorize appellant to pay Reid the proceeds on the strength of a court order conditionally appointing him guardian, with bond yet to be determined. We find no error in the chancellor’s ruling in this regard.
Appellant’s second argument for reversal is that, after paying the proceeds to the guardian, it had no further obligation to appellees under the law of trusts. We answer this argument summarily. First, the argument is premised upon the assumption that the trial court found a post-payment obligation of appellant to appellees as beneficiaries deriving from the law of trusts. The trial court made no such finding or any ruling that appellant had a continuing obligation to appellees after it paid the proceeds. Rather, the ruling was that appellant did not ensure that it properly paid the proceeds to the guardian and in fact paid the proceeds without court authority. Second, the abstract does not reveal that appellant relied on the law of trusts in the proceedings below. The record on appeal is confined to that which is abstracted. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). This court does not address arguments that were not raised below. Wacaser v. Insurance Comm’r, 321 Ark. 143, 900 S.W.2d 191 (1995).
We find no merit to appellant’s arguments and affirm the chancellor’s order.
Dudley, Newbern, and Corbin, JJ., dissent.
Glaze, J., concurs. | [
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David Newbern, Justice.
This is a replevin case. The appellant, Harold L. France, bought a used tractor and entered an installment contract to pay the appellee, Ford Motor Credit Company (Ford Credit), for it. Mr. France tried on two occasions to prepay the full obligation, as permitted by the contract, by personal check. Because of errors which occurred in the encoding of the first check and in drawing the second one, Mr. France’s account was debited for only small portions of the amount due. Mr. France thereafter refused to pay the balance. Ford Credit sought to replevy the tractor. Mr. France claimed, and argues on appeal, that the obligation was “suspended” according to Ark. Code Ann. § 4-3-310 (Repl. 1991) and, therefore, Ford Credit was not entitled to replevin. Mr. France also contended, and now argues, that Ford Credit’s remedy is against its agent which made the encoding error and not against Mr. France. The Trial Court held replevin was proper, and we affirm.
The purchase price of the tractor was $10,035. Mr. France paid $2,000 down. The amount that remained, including finance charges, was $9,845.76. Mr. France was to make 47 monthly payments of $205.12 beginning on September 23, 1993.
Prior to the date that the first installment was due, Mr. France elected to pay the balance in full. After deducting items such as unearned interest and insurance cancellation rebate, the outstanding balance was $8,506.19. On August 11, 1993, Mr. France’s spouse, Connie S. France, an attorney, drew check #2224 on their joint account at the Bank of Eureka Springs to the order of Ford Credit for that amount. As directed by the contract, the check was sent to a Dallas, Texas, address.
The address was that of a box monitored by Mellon Financial Services (Mellon). Under agreement with Ford Credit, Mellon encoded the amount of the check, using magnetic ink, in the lower right-hand corner and forwarded it to Ford Credit’s depositary bank in Dallas, Texas Commerce Bank. The encoding was done incorrectly in the amount of $506.19 rather than $8,506.19 The magnetic ink encoding enables the next bank in the chain of collection to process the check mechanically.
Texas Commerce Bank processed the check mechanically, crediting Mr. France with $506.19. Mr. France’s check was then forwarded to the Bank of Eureka Springs, the bank upon which it was drawn. The Bank of Eureka Springs debited the France account $506.19.
The encoding error was discovered, and on September 13, 1993, Ms. France attempted to draw a second check, #2313, for the remaining $8,000 balance. In the place on the check where the amount is shown numerically, the figure “$8,000.00” appeared; however, on the line where the amount is written out Ms. France wrote “Eight dollars and 00/100.”
Check #2313 was sent through the same channels as the previous check. Mellon made another error and encoded the check, not for $8,000 or for $8, but for $800. These words appear to have been stamped on the front of the check: “AMOUNT GUARANTEED TO BE,” and immediately below appears the handwritten figure “8,000.”
Texas Commerce Bank credited $800 to the France account with Ford Credit and sent #2313 on to the Bank of Eureka Springs. As words prevail over numbers, Ark. Code Ann. § 4-3-114 (Repl. 1991), the Bank of Eureka Springs debited the France account $8.00, and notified Texas Commerce Bank which reversed the $800.00 credit and substituted $8.00. Ford Credit thus was paid $8.00. Mr. France’s account has been charged, and Ford Credit has received, a total of $514.19, leaving a balance of $7992. Ford Credit filed its complaint for replevin of the tractor on October 12, 1994. The “guarantee” was apparently ignored in the collection process.
1. Replevin
Section 4-3-310 deals with the effect of an uncertified check issued in payment of an underlying obligation such as the contract in this case. The statute, in pertinent part, provides:
4-3-310. Effect of instrument on obligation for WHICH TAKEN.
(a) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument.
(b) Unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply:
(1) In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check.
***
As Mr. France does not contend his obligation has been discharged, the first sentence of § 4-3-310(b)(l) providing for “suspension of the obligation” is all that is at issue. We have found no case or other authority which addresses the facts presented here, but the language of the statute leaves us with little doubt as to the proper resolution of this case. It does no more than recognize the uncertainty attendant upon an uncertified and unpaid check and suspends the obligation until that uncertainty is resolved. See Cornwell v. Bank of America Nat. Trust and Sav. Ass’n, 274 Cal. Rptr. 322 (1991). In this case, the two checks submitted to Ford Credit have been paid, but in amounts less than the amount owed. The suspense is over, and all are aware of the amount of Mr. France’s obligation to Ford Credit which has yet to be satisfied. In this case, the statute provides no defense to the replevin action.
2. Other remedies
Mr. France contends Ark. Code Ann. § 4-4-209 (Repl. 1991) provides Ford Credit a remedy against Mellon which should have been pursued rather than the replevin action against him. Section 4-4-209 provides:
Encoding and retention warranties.
(a) A person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank or other payor that the information is correctly encoded. If the customer of a depositary bank encodes, that bank also makes the warranty.
***
(c) A person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach.
The statute provides warranties to collecting banks and payors but not to a payee such as Ford Credit.
The record does not show how the “guarantee” appeared on the check or who placed it there. Mr. France’s argument assumes it to have been stamped and written on the check by Mellon and thus that it could have formed the basis of recovery by Ford Credit against Mellon. Nothing in the record suggests that Mr. France in any way guaranteed the check to be for $8,000 or was asked by Mellon or any other bank in the collection chain to do so. No authority whatever is cited for the contention that the “guarantee” limited Ford Credit’s remedies against Mr. France. Nor does he cite any authority or render convincing argument that the “guarantee” resolved the conflict between the written and figure amounts on the check. Certainly the Bank of Eureka Springs and Texas Commerce Bank did not consider it to have had any effect. Absent any citation of authority or convincing argument, we decline to consider the argument. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995).
Affirmed.
Glaze, J., concurs.
Brown, J., not participating. | [
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Per Curiam.
Appellant, Johnny Austin Benton, by his attorney, Edgar R. Thompson, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Per Curiam.
Larry Donihoo has filed this Motion for Rule on the Clerk through his attorney, Garnett E. Norwood. His attorney does not admit fault, but states that because he timely tendered a partial record, he is entitled to have the record filed and the case docketed by the Clerk.
The chronology of this appeal is as follows:
Judgment and Commitment Order Entered 4/28/95
Notice of Appeal and Designation of Record 5/23/95
Order for Extension of Time to prepare transcript to November 15, 1995 5/31/95
Petition for certiorari filed along with a partial record 11/15/95
Transcript tendered 12/15/95
It is an attorney’s duty to file the record on time. In this case, Mr. Donihoo offers no explanation as to why the record was late. See Ark. R. App. R. 5. If the attorney will concede by affidavit that it was his fault that the record was not filed on time, or if other good cause is shown, then the motion will be granted. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
Motion denied. | [
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Robert L. Brown, Justice.
The catalyst for this appeal was the conviction of the appellant, Johnny Lee Mills, for capital murder and his sentence of life imprisonment without parole. Mills appeals on seven grounds: (1) insufficient evidence for capital murder and the underlying felonies; (2) failure of the State to provide exculpatory information as part of discovery; (3) tainted photographic lineup and in-court identification; (4) failure to suppress illegally seized blood; (5) failure to allow into evidence a tape and transcript of a hypnotherapy session with a defense witness to refresh the witness’s recollection; (6) failure to exclude a photograph of a pickup truck without proper foundation; and (7) error by the trial court in overruling Mills’s objection to an allegedly racist remark made by the prosecutor in closing argument. We affirm the judgment.
On November 28, 1992, at approximately 9:41 p.m., Officer Pardoe Roberts, who was then with the Lawrence County Sheriff’s Department, found the body of Carrie “Tish” Galbreath in a car parked on Luther Bridge Road off State Highway 34 outside of Walnut Ridge. She had been shot six times and died of blood loss. One bullet wound was behind her left ear, and the gun had been fired at close range. She was also shoeless and her feet were covered with mud. Her underwear and pantyhose were found on the floor of the car, and they had a hole through them which was later identified as a bullet hole. What appeared to be blood was found on the outside passenger’s side of the car and on the car’s hood.
Mills was arrested in connection with the murder and charged with capital murder, rape, and kidnapping. He was later charged with robbery. At the ensuing trial which began on August 1, 1994, and following a motion for directed verdict by the defense, the trial judge dismissed the robbery charge. The jury then returned a guilty verdict for capital murder, and Mills was sentenced to life without parole.
I. INSUFFICIENT EVIDENCE
The State’s case against Mills consisted of these elements. The victim’s sister, Peggy Lomax Robbins, testified that she was with her sister until 6:50 p.m. on the evening of November 28, 1992, and loaned Galbreath her car — a Buick — to go to work. On that same day between 7:00 p.m. and 7:30 p.m., Brenda Whited and her husband, Randal Whited, testified that they were at Coleman’s Combo service station in Walnut Ridge buying gasoline for their car. Brenda Whited heard a lady screaming, “He’s going to shoot me. Help me, please, he’s going to shoot me.” She then heard gunshots. She looked back over her shoulder and saw a black male and white female. The woman was screaming and fighting with the man. At that point, the woman screamed, “He’s going to shoot me again.” She then added, “Oh, God, he’s shot me.” Brenda Whited saw the man and woman wrestle some more.
Randal Whited then came out of the building. The man yelled to him, “Go get him, across the street, go get him.” Randal Whited looked in the direction where the man pointed, but no one was there. The man next shoved the woman into the front seat of their car and down towards the floorboard. As he was driving away, he pulled his car over to where Brenda Whited was parked, pointed at her, and said something which she could not hear. After that, he drove away but Randal Whited took down the license plate of the car which later proved to be the car of Peggy Robbins. At trial, both Brenda Whited and Randal Whited identified Mills as the man with the woman at Coleman’s Combo.
It was stipulated at trial that the bullets which killed Carrie Galbreath came from a .38 caliber revolver that belonged to Mills. Lisa Calhoun, a forensic serologist with the State Crime Laboratory, testified at trial that semen was found in the victim’s mouth, but none was found in her vagina or rectum. Then Lawrence County Deputy Sheriff Pardoe Roberts testified that blood samples were taken from Mills. DNA testing was performed, and the DNA found in the blood matched the sperm samples taken from Galbreath’s mouth. According to Dr. Harold Deadman of the FBI, the probability of selecting someone at random from the black population with the same DNA profile would be one in ten million. When confronted with the DNA results on November 5, 1993, Mills admitted that he had had sex with the victim but said it was Larry White who used his gun to shoot her.
Mike Barter, who was in the Lawrence County jail because of a drug conviction and fifteen-year sentence, testified that he overheard Mills say that “they had killed this girl and raped her and everything in Walnut Ridge.” Robert White, who was incarcerated at the time of trial for burglary and theft, testified that Mills told him that he “and Home Boy raped her [a girl in Walnut Ridge] and killed her.” White added that Mills said “they took a gun and shot her five times.”
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.
A. Rape
Mills contends that the State failed to prove an element of rape, namely forcible compulsion. See Ark. Code Ann. § 5-14-103 (Repl. 1993). He further contends that the evidence supports a finding that the sexual activity between the victim and him was consensual.
In viewing the evidence in the light most favorable to the State, as we must do, the proof of rape in this case is substantial. There is the testimony of Mike Barter and Robert White that they heard Mills admit to raping a girl in Walnut Ridge. There is the eyewitness testimony of the Whiteds, who saw Mills accosting a woman at Coleman’s Combo sometime after 7:00 p.m. on the night of Gal breath’s murder. There is the DNA profile matching Mills’s blood to the semen found in the victim’s mouth.
Mills counters this with the fact that according to Dr. Frank Peretti, who performed the autopsy, the victim’s facial makeup was intact at the time she was found and the paint on her fingernails was not cracked or chipped. Both of these factors, according to Mills, evidenced consensual sex with no force employed by an assailant. We disagree. Clearly, a pistol was involved which could have been used to coerce sex. “Forcible compulsion” is defined as “physical force, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). The fact that Galbreath was shot before her underwear and pantyhose were removed circumstantially supports the use of force before sex. Moreover, the time span between the time that Peggy Robbins left her sister’s apartment at 6:50 p.m. the night of her murder and the time of her subsequent duress at Coleman’s Combo was roughly ten minutes to forty minutes. While not impossible, that abbreviated period undercuts the theory that consensual sex transpired during this window of opportunity. We conclude that the proof of rape was substantial.
B. Kidnapping.
Mills also argues that there was insufficient evidence presented of kidnapping. The heart of his argument is that Galbreath could well have been dead when she was driven from Coleman’s Combo; hence, there could be no kidnapping of a deceased person.
There is, first, the fact that the victim’s feet were covered with mud suggesting that she had tried to run away from the car later on and, thus, was manifestly alive after the conflict at Coleman’s Combo. In addition, although shot at that time according to what the Whiteds heard, there was no proof that Galbreath was dead.
Surely, the testimony of the Whiteds supports a conviction for substantial interference with Galbreath’s liberty. Ark. Code Ann. § 5-11-102(a) (Repl. 1993). Furthermore, the fact that Mills’s semen was found in the victim’s mouth supports a finding of sexual contact with the victim, at a minimum. This evidence in toto was also substantial.
C. Capital Murder
Mills next maintains that there was insufficient evidence of capital murder because, other than his uncorroborated confessions to Robert White and Mike Barter, there was no proof that he fired the fatal shot. Such corroborative proof, however, is not necessary. Ark. Code Ann. § 16-89-111(d) (1987) provides that:
A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.
This court has held that the statute requires only proof that the offense was committed by someone in order to corroborate a confession. See Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984). This requirement for other proof, called the corpus delicti requirement, mandates only that a showing be made that the offense occurred and nothing more. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). The State need only prove that Mills confessed and the victim died as a result of a homicide, which the State did. The evidence was sufficient.
II. EXCULPATORY EVIDENCE
For his second point, Mills contends that the trial court erred in not granting his motion to declare a mistrial due to the State’s failure to reveal the identity of an exculpatory witness. For the first time at trial, Mills’s counsel was made aware of the existence of Robbie Batterton, who had seen a black man and white woman riding in a Buick behind a pickup truck on the night of the murder. According to Mills, this was exculpatory because it proved that other people were involved in the crime and supported his theory of the case that Larry White did the shooting.
Under Ark. R. Crim. P. 17.1 (d), the State is required to disclose to the defense any material or information within its knowledge, possession, or control which tends to negate the guilt of the defendant. Ark. R. Crim. P. 19.2 further imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Under Rule 19.7, if there has been a failure to comply, the trial court may order the undisclosed evidence excluded, grant a continuance, or enter such order as it deems proper under the circumstances. Id. In some situations, a recess granted to interview the witness is sufficient to cure the failure to comply with the Rules of Criminal Procedure. Id.; see Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).
The State clearly violated the letter of Rules 17.1(d) and 19.2. However, in ameliorating the situation the trial court followed an appropriate course of action. The court granted time so that the defense could interview Robbie Batterton. Mills then called Batterton to testify as the sole witness in his defense. We fail to see how Mills was prejudiced under these circumstances. See Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994).
III. PHOTOGRAPHIC LINEUP
Prior to trial, Mills moved to suppress any identification testimony which might be introduced at trial. In his motion, he moved to suppress all testimony concerning both pretrial and in-court identification because the pretrial photographic lineup procedures were highly suggestive and prejudicial to him and any subsequent in-court identification was tainted by the dubious pretrial procedures.
At the ensuing hearing on the motion, Investigator Sam Spades of the Walnut Ridge Police Department testified that two photographic displays were shown to Brenda and Randal Whited. The first photo lineup was conducted on December 7, 1992. Seven pictures were included, but Mills was not one of them. The Whit-eds made no identification. Investigator Spades testified that eleven months later on November 9,1993, a second photo lineup was held and that this time there were eight photographs. The photographs of Mills and Larry White were added, and one photograph used in the previous lineup was removed. The remaining six photographs were the same as those used in the first display. Both of the Whiteds picked Mills from the second photo display.
Because of the duplication of six photographs in the first and second lineups, Mills contends that the integrity of the procedure was highly questionable. He further contends that this is buttressed by the fact that Brenda Whited testified at the hearing that there might have been “one or two” faces in the second photographic lineup which she recalled from the first one.
We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995); Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In Hayes, we discussed the criteria for assessing whether an in-court identification is suspect or not:
In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). It is the appellant’s burden to show that the pretrial identification procedure was suspect. Id.
Reliability is the linchpin in determining the admissibility of identification testimony. Dixon v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). The following factors are considered in determining reliability: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Van Pelt v. State, supra; Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Even if the technique is impermissibly suggestive, testimony concerning the identification is admissible if the identification is reliable. Bishop v. State, supra. Finally, the credibility of identification testimony is for the jury to decide. Dixon v. State, supra.
Hayes, 311 Ark. at 648-649, 846 S.W.2d at 183-184.
In applying the factors to the case at hand, Brenda and Randal Whited clearly had the opportunity to view Mills at Coleman’s Combo. There was no prior identification of another person by them. They were positive in their choice of Mills at the second photo lineup. And they have never failed to identify Mills in a prior lineup. Almost a full year did pass from the date of the murder to the date of the second lineup, but that factor in itself does not militate against a reliable identification. The one criterion that is not satisfied is the accuracy of the Whiteds’ description of Mills following the altercation at Coleman’s Combo. Brenda Whited described the suspect as 5' 10" to 6' tall, black, and possibly with a gold tooth. Randal Whited described him as 6' tall, black, heavy set with a stocky build. Mills is actually only 5' 6" tall and has no gold tooth. In partial answer to this discrepancy, Randal and Brenda Whited testified that they only were able to see Mills from the chest up because his car obstructed their view.
Viewing the totality of the circumstances surrounding the photographic lineup and the in-court identification, we cannot say that the trial court clearly erred in permitting the in-court identification to proceed. We have held that a judgment of conviction will only be set aside when the photographic lineup is so suggestive and unreliable as to create a substantial possibility of misidentification. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). The Whiteds never wavered in their certainty that Mills was the man they saw at Coleman’s Combo, and other than a mistaken estimate of four inches in height, there is nothing that diminishes the reliability of their identification. We affirm the trial court on this point.
IV. BLOOD TEST
Mills next contends that blood was improperly seized from him without a court order in violation of our Rules of Criminal Procedure, and that, as a consequence, the DNA results tying him to the sperm found in the victim’s mouth should have been suppressed. The basis for this argument is Ark. R. Crim. P. 18.1(a)(vii) which reads:
(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof; ....
The taking of blood by a law enforcement officer does amount to a Fourth Amendment search and seizure. Schmerber v. California, 384 U.S. 757 (1965); see also, Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975); Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968). A consensual search, however, does not run afoul of the Fourth Amendment. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). We further conclude that a consensual taking of blood also does not contravene Rule 18.1(a)(vii) because the rule does not require a court order when the drawing of blood is voluntary. The question then is whether Mills agreed to the taking of his blood.
This court reviews the evidence in the light most favorable to the State and considers the totality of the circumstances in determining whether the State proved that consent to a search was freely and voluntarily given without actual or implied coercion. Chism v. State, supra; Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991). We will affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Chism v. State, supra.
Pardoe Roberts, a deputy sheriff at the time, testified that when he served Mills with the State’s petition to seek an order requiring a DNA test, Mills informed him that the petition was not necessary because he would voluntarily submit to the blood test. Deputy Sheriff Roberts then asked the prosecuting attorney what the proper procedure in this situation was, and he was told that if Mills wanted to voluntarily consent to the blood test, then he should be taken to the hospital to have one conducted. Roberts testified that, following that advice, he took Mills to the Lawrence County Memorial Hospital where the blood work was completed. Brenda Jones, the laboratory supervisor at the hospital, testified that she drew Mills’s blood for the DNA testing. She testified that he never objected to his blood being taken; nor did he refuse to have the blood drawn. She stated that had Mills refused the blood work, no blood would have been drawn. No consent form was executed.
Mills, on the other hand, testified that he had previously refused to submit to a blood test. He said that Deputy Sheriff Roberts approached him and asked if he wanted to give blood and that he told him “No.” He then testified that the deputy sher iff came back with a piece of paper and told him that he had a court order, requiring Mills to take the blood test.
Faced with the two versions of what transpired, the trial court made a credibility decision of which witness to believe. The credibility of the witnesses in this instance was for the trial court to weigh and assess. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). We cannot say that the trial court was in error in finding the rendition of Deputy Sheriff Roberts and Brenda Jones more believable than that of Mills.
V REFRESHING RECOLLECTION BY HYPNOSIS
During cross-examination, defense counsel sought to refresh the recollection of the victim’s sister, Peggy Lomax Robbins, by using her statements made under hypnosis. Defense counsel asked Robbins whether, while under hypnosis, she recalled telling the doctor “they shot her.” Robbins answered that she remembered nothing about that. Defense counsel then stated that he wanted to show her a transcript of the hypnotherapy session to which the prosecutor objected, and the trial court sustained the objection. Defense counsel next attempted to play a tape of the hypnotherapy session, an objection was again made by the State, and it too was sustained by the trial court. Defense counsel then proffered the tape for the record. Later on in the trial, there was some confusion between the trial court and defense counsel over whether defense counsel had attempted to refresh Robbins’s recollection with an actual transcript of the hypnotherapy session or police notes. Whatever the case, no transcript of the session was proffered for the record, and it is not available for our review.
This is an issue of first impression in this state. What defense counsel attempted to do with this witness was use her to introduce the transcript of her hypnosis where she allegedly said “they shot her” rather than “he shot her.” The psychologist for the hypnotherapy session, Dr. Gaylon Hurst, was not called to lay a foundation for admissibility. The tape or transcript would have been evidence of statements made by the witness while under hypnosis which she did not recall making. This situation is different from when a defendant or witness is called to give hypnotically refreshed testimony. See, e.g., Rock v. Arkansas, 483 U.S. 44 (1987); Partin v. State, 318 Ark. 312, 885 S.W.2d 21 (1994). Mills presents us with no authority for why statements of a wit ness made under hypnosis should be relevant, reliable, or otherwise admissible. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Moreover, defense counsel’s efforts in this regard do not resemble a typical attempt to refresh recollection under Ark. R. Evid. 612 by previous writing or other object. Here, the statements allegedly made by Robbins were not recalled by her and were presumably made while she was in a hypnotic trance.
Rulings on the admissibility of evidence are matters within the trial court’s sound discretion, and we will not reverse these evidentiary rulings absent an abuse of that discretion. Partin v. State, supra; Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Though the State is wrong in its brief in asserting that the tape of the session was not proffered, we view this of no great moment. We find no abuse of discretion in the trial court’s disallowing the use of Robbins’s statements made under hypnosis to expand her testimony.
VI. DEMONSTRATIVE EVIDENCE
The next issue surrounds the State’s use of demonstrative or illustrative evidence — a photograph of a Ford pickup truck — used for comparison purposes with the photograph of a Peacock company pickup truck previously introduced through a State witness. The witness on the stand was Robbie Batterton, who had been called as the sole defense witness to testify about seeing a black man and white woman in a light-colored Buick “tailgating” a pickup truck. Batterton testified that the pickup truck he saw did not look like the Peacock truck, which Larry White drove and which was depicted in a photograph shown to him by defense counsel. He did testify that the vehicle he saw looked like the photograph of the Ford pickup truck shown him by the State, although he believed the pickup truck he saw was actually a GMC or Chevrolet truck. The picture of the Ford pickup truck was introduced to show that it was significantly different from the Peacock truck. Defense counsel objected to the State’s photograph, but the trial court overruled the objection.
The admissibility of demonstrative evidence is a matter falling within the wide discretion of the trial court. Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Here, there is no basis for a conclusion that the trial court abused that discretion.
VII. CLOSING ARGUMENT
Mills’s last point is that the trial court erred in overruling his objection to a remark made by the prosecutor in closing argument. The statements in question were made during the prosecutor’s rebuttal argument:
And you remember what the officers told you why we had some of the same folks in the lineup? Because we just don’t have that many black people here. And you know something else that you know as well as I do? Our black community, I’m talking about our local black families who’ve been here forever, are very law abiding people.
Defense counsel made the following objection: “I object, that’s a racist statement on behalf of the state and I object to it, to talk about we have good blacks here as opposed to bad blacks.” Defense counsel failed, however, to ask for any specific relief from the trial court. The State responded, “How is that racist? That’s why we don’t have them in the lineup.” The court overruled the objection, and the State continued its closing argument. Defense counsel requested no admonition or curative instruction from the court, and none was given.
We have held that the trial court is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of it. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1995); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Indeed, remarks made during closing arguments that require reversal are rare and require an appeal to the jurors’ passions. Wetherington v. State, supra; Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). It does not appear that any such appeal for an emotional or passionate response was made in this case. Further, it is difficult to fathom how the prosecutor’s remarks in any way prejudiced Mills’s case. And, lastly, defense counsel made no request for relief following his objection. There was no error by the trial court in overruling the objection.
The record of the trial has been reviewed in this case pursuant to Supreme Court Rule 4-3(h), and no reversible error has been found.
Affirmed.
Mills was charged with premeditated and deliberate capital murder and, alternatively, with capital felony murder. The jury was also instructed on both offenses. The verdict form does not indicate which crime resulted in the conviction. Mills, however, directs his sufficiency-of-the-evidence point at capital felony murder.
Both Barter and White were in jail with Mills when they heard these statements. The prosecutor did not allow the fact that Mills was apparently in jail on another offense to come before the jury. | [
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Per Curiam.
In response to appellee’s motion for disqualification, Justices Robert H. Dudley, Tom Glaze, and Donald Corbin recuse but not for any of the reasons set out in his motion. Appellee’s attorney, J. L. Wilson, was sanctioned in federal court as a result of a criminal conviction and is now the subject of disciplinary proceedings before the State Professional Conduct Committee and disbarment proceedings before the Phillips County Circuit Court which have been remanded to federal court. Because these named justices intend to seek Rule 11 sanctions to be imposed against attorney J. L. Wilson and his attorneys for filing a no-merit petition in federal court, we recuse. | [
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Tom Glaze, Justice.
This case involves partial cancellation of an oil and gas lease. On January 20, 1979, Butler-Johnson, Inc., obtained oil and gas leases in lands located in Miller County and described as follows:
Township 17 South. Range 28 West
Section 24:
The East Half of the Southeast Quarter (E 1/2 SE 14) and the Southeast Quarter of the Northeast Quarter (SE 1/4 NE 1/4) and comprising in the aggregate 120 acres, more or less[.]
The lands described above are known as the Fouke B Lease and are comprised of three quarter-quarter sections of forty acres each. Subsequently, Butler-Johnson assigned its interest in the Fouke B Lease to appellee Ross Production Company. Additionally, Ross Production acquired leases in contiguous lands known as the Fouke Estate Lease. Together, the Fouke Estate Lease and the Fouke B Lease comprised 600 acres of Section 24. The oil and gas in the lands covered by the Fouke Estate Lease and the Fouke B Lease are owned by the same lessors whose respective undivided interests are the same proportions throughout the entire leased premises. However, only the Fouke B Lease is at issue here.
Subsequent to obtaining the assignment, Ross Production drilled three wells under the Fouke B Lease on each of the three governmental quarter-quarter sections. In April 1982, Ross Production drilled the B-l well in the southeast quarter of the southeast quarter (SE 1/4 SE 1/4). Because the well was not commercially productive, the B-l well was plugged and abandoned that same month as required by the Arkansas Oil & Gas Commission. On November 13, 1982, Ross Production completed the B-2 well which was a commercial producer of oil and which continues to produce. The B-2 well is located in the northeast quarter of the southeast quarter (NE 1/4 SE 1/4), and drains the Paluxy Formation. Lastly, Ross drilled the B-3 well in the Southeast quarter of the northeast quarter (SE 1/4 NE 1/4). This third well was not commercially productive and was abandoned in December 1984. Following the completion of the producing B-2 well in 1982, Ross Production applied to the Commission pursuant to regulations for the establishment of field rules applicable to the Paluxy Formation. After a public hearing on August 24,1982, the rules promulgated provided that areas contiguous with the south half of Section 24 overlying the Paluxy Formation are designated as the Boggy Creek Field, and established that forty-acre drilling units be comprised of governmental quarter-quarter sections for wells completed within the Paluxy Formation. Further, the rules provided that wells be located at no less than 280 feet from the boundary lines of each unit.
Ross Production drilled a total of twelve wells within the Boggy Creek Field. Eight of the twelve wells were on lands held under both the Fouke Estate Lease and the Fouke B Lease. Five of those were dry wells and the remaining three were completed as commercially productive. After the B-3 well was plugged and abandoned on December 6, 1984, Ross Production did no further drilling or exploration on those three forty-acre units of Section 24 under the Fouke B Lease.
In October of 1992, appellant Mike Davis acquired top leases on the southeast quarter of the southeast quarter of Section 24 (SE 1/4 SE 1/4). This is the same forty-acre unit under the Fouke B Lease in which Ross Production drilled and abandoned the B-l well in April 1982. This unit, hereinafter described as the B-l unit, is included in the Boggy Creek Field.
By letter dated January 18, 1994, Ross Production demanded Davis release his 1992 top leases. In response, Davis demanded Ross Production release the B-l unit from the 1979 Fouke B Lease, based on Ross Production holding the B-l unit for eleven years without further development and production. On May 12, 1994, Ross Production and Davis filed separate applications with the Commission for authority to drill a well at the same location on the B-l unit. That proposed drilling location is as close as the field rules allow to the B-2 well and the Fouke Estate No. 2 well, both of which are producing. If drilled as proposed, the new well would be located 560 feet from each of two producing wells owned by Ross Production. The Commission denied both requests pending a legal determination of which party had the right to drill and develop the B-1 unit.
On May 2, Ross Production filed a petition to remove the cloud on its leasehold and quiet title under the 1979 Fouke B Lease on behalf of itself and other owners of working interests in the Fouke B Lease, and to cancel Davis’s top leases on the B-1 unit. Davis answered pleading the affirmative defense of breach of covenants under the original oil and gas leases. Davis counterclaimed seeking cancellation of that portion of the 1979 Fouke B Lease on the B-l unit, and requested quiet title in him through his top leases for the B-l unit. Other procedural orders were entered which are not at issue here.
Following trial on the merits, the chancellor held as a matter of law the following:
The fact that [Ross Production] did not additionally explore or develop the [B-l unit] for the twelve year period that commenced with the plugging and abandonment of the Fouke Estate B-l well (April 1982) is not legally significant.
The chancellor found Ross Production began to explore or develop the B-l unit only when it learned Davis had obtained top leases on the B-l unit, and was prepared to submit to the Commission a request for permission to drill. Nonetheless, the chancellor concluded that Ross Production held the Fouke B Lease by having drilled a well on each of the three units under the lease. The chancellor also held Ross Production did not have a continuing duty to further develop the B-l unit from April 1982 through to the present. Lastly, the chancellor held as follows:
This court on the record before it does not find that the act of [Ross Production] in deferring drilling operations until such time as the price of crude oil would increase for the benefit of both the lessors and the lessee particularly when the minerals were owned in the same proportions by the owners under the entire leased premises and that not even the slightest indication has been made that drainage has occurred or that the lessors have sustained any economic loss except for the fact that a successful well within the [B-l unit] would have returned royalties to the mineral owners more quickly or at an earlier date.
In so holding, the chancellor quieted title to the leasehold on the B-l unit in Ross Production, canceled Davis’s top leases to the B-l unit, and dismissed Davis’s counterclaim with prejudice.
Davis raises the following points for reversal: (1) the chancellor erred in holding that Ross Production’s failure to develop the B-l unit for twelve years was legally insignificant; (2) the chancellor erred in holding that Ross Production had no duty to further develop the B-l unit from April 1982 to January 1995; and (31 the chancellor erred in finding that the lessors suffered no economic loss from Ross Production’s inactivity. Davis argues the foregoing findings were clearly erroneous and therefore the chancellor was wrong in cancelling his top leases and dismissing his counterclaim. Because we find Davis’s arguments have merit, we reverse and remand.
Because Davis’s first two points are so interrelated, we discuss them together. Davis contends Ross Production had a continuing duty to develop the B-l unit for the benefit of the royalty owners, and the fact both he and Ross applied for a drilling permit at the same time is evidence that a reasonably prudent operator would have drilled in the B-l unit earlier. Furthermore, Davis argues Ross Production could not hold the Fouke B Lease on the entire 120 acres by producing only on one forty-acre unit. Davis points out Ross has conducted no exploration or development under either the Fouke Estate or Fouke B leases since December 6, 1984. On the other hand, Ross Production concedes it has performed no drilling activities on the 120 acres under the Fouke B Lease since 1984, but argues its failure to do so was due to the depressed oil market. Ross also notes the considerable amount of money it has expended in exploring and developing the Boggy Creek Field, and contends cancellation of the lease as to the B-l unit would cause it irreparable injury and deprive it of “a vested leasehold interest.” Additionally, Ross points out the lessors of the B-l unit are the same lessors of the remainder of the Fouke B and the Fouke Estate leases, and they have accepted the royalties under those leases without demanding the B-l unit be further developed. Nor, Ross asserts, was there any evidence of drainage of oil from the B-l unit. Finally, Ross contends it complied with the implied covenant to develop by drilling a well in each of the three forty-acre units, and due deference must be given its judgment as lessee. In reply, Davis notes that while Ross Production claims to have spent over $1 million on the Boggy Creek Field, only $372,472 was spent on the 120 acres under the Fouke B Lease, and none has been spent since 1984. According to the evidence, Davis points out only $101,129 has been spent on the B-l unit since 1982.
The parties generally agree that the lessee has the duty to develop the entire leasehold and must do so with reasonable diligence. However, the parties do dispute the application of those principles to the facts of this case. Michael Davis testified he based his decision to obtain his leases on the B-l unit and drill the proposed site after studying Ross Production’s own electric well logs, as well as those of other operators in the area, all of which are public records filed with the Commission. Davis also testified he considered the B-l unit abandoned by Ross.
Ross Production’s own geological expert and business partner, Joseph Laird, testified that the geologic evidence had not changed since 1984, and he had recommended that Ross redrill the B-l unit after the B-l well was capped in 1982. Further, Laird testified that the proposed well will be separated from the producing B-2 well by a fault which will prevent the proposed well from draining the same reservoir as the B-2 well. Laird agreed with Davis’s assessment that the proposed well will probably produce commercial hydrocarbons. Finally, Laird testified they had known about the proposed well location since 1984, and nothing had prevented them from drilling a well there.
While Ross Production argues its decision not to drill the well from 1984 to the present was justified by the depressed oil market, Davis contends that, except for a period during the Persian Gulf War when the price of oil was at a high of $30 a barrel, the average price of oil over the twelve year period was $15 a barrel with a low of $12. Most significant on this point, however, is the cross-rebuttal testimony of Albert Ross, a partner in Ross Production. For example, Ross repeatedly admitted that Ross Production had not drilled on the B-l unit since 1982, because they were waiting for the price of oil to increase. Ross further testified that even though the price of oil was now lower than it had been at times in the past, it still was economically advantageous to drill the proposed well. Finally, Ross was asked why Ross Production failed to drill in the B-l unit since 1984, and he explained as follows:
Q It was economically feasible for you to drill this well in the preceding, any time during the preceding ten years?
[Ross] Yes, but, we were hoping that the price would go up so it would be more economically advantageous to both us and the royalty owners.
In Standard Oil Co. of La. v. Giller, 183 Ark. 776, 38 S.W.2d 766 (1931), this court held as follows:
[I]n any oil and gas lease in which royalties constitute the chief consideration, an implied covenant exists on the part of the lessee to explore the property with reasonable diligence, so as to produce oil and gas in paying quantities upon the entire tract. Especially is this true after either or both commodities has or have been discovered on any part of the tract.
Id. at 777. See also Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983) (production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely). While due deference should be given to the judgment of the lessee as operator to determine how many wells should be drilled, the lessee must use sound judgment, and promote and protect the interests of both himself and the lessor. Giller at 777.
We also note that in Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W.2d 1015 (1930), this court stated in dicta the following:
It is true that the drilling of oil wells is very costly, but the parties understood this when they executed the lease. The lessee only agreed to pay the lessors one-eighth of the oil produced as rent, and reserved seven-eighths of it for its own profit in drilling the well, and in undertaking the risk of not finding any oil.
Id. at 812. The lessee has a duty to produce throughout the whole of the leased premises, and the lessee must not consider his own interests wholly or for the most part. Poindexter v. Lion Oil Refining Co., 205 Ark. 978, 167 S.W.2d 492 (1943).
Furthermore, we recently decided the case of Sunbelt Expío ration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995), which involved an action to cancel underlying leases in favor of top leases. There, Sunbelt argued in part that Stephens breached its duty to further develop a gas reservoir which was divided by a fault. In rejecting Sunbelt’s arguments and holding cancellation was not appropriate, we noted the undisputed testimony showed the technology was not available until 1990 to determine that a fault existed dividing the gas reservoir which prevented production from the entire reservoir, and Stephens began plans to develop the lower portion of the reservoir as soon as the fault was discovered.
While recognizing the lessee-operator is interested in obtaining the greatest profits possible, this court has held that the oil and gas lease is not executed for speculative purposes, but for present benefits or for benefits to be obtained within a reasonable time. Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S.W. 837 (1911). If the lessee-operator contends there is nothing to be gained by continued development, the lessee has lost nothing by cancellation of the nonproducing portion of the lease. Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983); Skelly Oil Co. v. Scoggins, 231 Ark. 357, 329 S.W.2d 424 (1959).
Each oil and gas case is, more often than not, distinguishable upon its own facts. Based on the facts presented here, Ross Production knew that the isolated reservoir existed in the B-l unit as early as 1984, and that the B-2 well was not producing from that reservoir. Ross Production’s own geologist recommended redrilling the B-l unit in 1982. Further, Ross Production’s own evidence shows the price of oil had remained fairly stable during the eleven-year period, except for two periods, during 1985 and during the Persian Gulf War in 1990, when the barrel price rose to $25 and above. Despite the relatively stable oil prices over the years, Ross Production did not become interested in further developing the B-l unit until it discovered Davis had filed his top leases.
In considering Ross Production’s own testimony and evidence as set out hereinabove, we cannot say that its actions were those of a prudent operator who exercised reasonable diligence in exploring and developing the entire leasehold. Therefore, the chancellor’s holding that Ross Production’s inactivity was legally insignificant and that it had no duty to further develop the B-l unit was clearly erroneous.
We turn next to Davis’s argument that the trial court erred in finding that Ross Production’s act of deferring drilling operations did not result in economic loss to the lessors. In support of his argument, Davis states that Ross Production’s delay of twelve years in developing the B-l unit resulted in a loss of royalties from a producing well and prevented the lessors from making other arrangements for development. See also Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 834 (1987) (while usually inadequate, the lessor’s damages may be based either on the royalty income lost from the time a well should have been drilled, or on the interest on the sum that would have been paid if no breach had occurred). Davis also notes that under the Fouke B Lease with Ross Production, the royalty owners receive 1/8 of the oil produced as rental, whereas with him, the royalty owners could receive 3/16. On the other hand, Ross Production avers the owners received their royalty interest from the producing B-2 well over the years.
As Davis notes, in Nolan v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958), this court stated the production of oil on a small portion of the lease tract cannot justify the lessee’s holding the balance indefinitely and depriving the lessor, not only of the expected royalty from production, but of the privilege of making some other arrangement. See also Enstar Corp. v. Crystal Oil Co., 294 Ark. 77, 740 S.W.2d 630 (1987); Skelly Oil Co. v. Scoggins, 231 Ark. 357, 329 S.W.2d 424 (1959). Since 1984, when further development under the Fouke B Lease ceased, the royalty owners lost income which could have been earned from redrilling the B-l unit. For these reasons, we must hold that the chancellor was also clearly erroneous in finding that the royalty owners have not sustained losses.
In conclusion, we mention Davis’s suggestion that this court establish, as a matter of law, a specific, maximum time period of inactivity after which an oil and gas lease would be subject to cancellation for failure to drill and develop the leasehold. Davis cites Ark. Code Ann. § 15-73-201 (Repl. 1994) wherein the General Assembly has provided that one year beyond the primary term of the lease or one year within completion of a well is a maximum time the lessee can hold by production, lands outside a unit or pool in which there has been no production or exploration. Davis suggests this court adopt a period of ten years, rather than one year, as a matter of public policy. We choose not to do as Davis requests. As we have stated many times, it is for the General Assembly, not the courts, to establish public policy. Nabholz Construction Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995).
On appeal, we review chancery cases de novo and will reverse the findings of the chancellor only if those findings are clearly erroneous. Sunbelt Exploration Co. v. Stephens Production Co., 320 Ark. 298, 896 S.W.2d 867 (1995). Here, as more fully discussed above, the chancellor was clearly wrong (1) in holding Ross Production’s inactivity on the B-l unit was legally insignificant, (2) in deciding Ross Production had no duty to further develop the B-l unit, and (3) in finding the royalty owners suffered no loss as a result. Because we find Ross Production breached the implied convent to continue to explore and develop the B-l unit, we reverse and remand with orders to cancel the Fouke B Lease with Ross Production only as to the forty acre SE 1/4 SE 1/4 unit, and to quiet title to the same in Davis.
Jesson, C.J., not participating.
The only portion of Section 24 which Ross Production did not obtain is a forty-acre unit located in the northeast quarter of the northeast quarter (NE 1/4 NE 1/4).
A top lease is a lease granted by a landowner during the existence of a recorded mineral lease which is to become effective if and when the existing lease expires or is terminated. Crystal Oil Co. v. Warmack, 313 Ark. 381, 383, 855 S.W.2d 299, 301 (1993) (citing Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 1011 (7th ed. 1987).
Because the Fouke B Lease was entered into in 1979, before the effective date of the statute, this statute is not controlling in this case. See § 15-73-201(c). | [
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David Newbern, Justice.
Charles Thompson was convicted of raping his 12-year-old son and sentenced to 40 years’ imprisonment. A younger sister of the alleged victim testified to having observed the rape and to having been a victim herself. Mr. Thompson’s counsel made a pretrial request for the information to which Ark. R. Crim. P. 17.1 entitles a criminal defendant. He contends the Trial Court erred by not declaring a mistrial as the State did not provide him with a statement the sister had made earlier to a police officer and had not provided him with a medical report about her condition. He also contends the sister should not have been allowed to testify about having been a victim because it did not fall within any exception found in Ark. R. Evid. 404(b) which governs admissibility of evidence of other crimes. We affirm because (1) Mr. Thompson was not entitled to the sister’s statement, (2) he has demonstrated no unfair prejudice resulting from failure to provide the medical report, and (3) we allow evidence of child sexual abuse suffered by another child in the same household as that of the alleged victim.
1. The statement and report
During the testimony of the sister it was revealed that she had previously spoken with a police officer who had recorded their conversation. That police officer did not testify, nor was the tape recording of the statement introduced. It also came to light that the prosecutor had in his file in the courtroom a Department of Human Services record of a medical examination of the sister. The report was not offered in evidence, nor was the testi mony of the examining physician offered. Counsel sought a mistrial with respect to the statement and again with respect to the medical report and argued, in effect, that the documents could have been used to impeach the children’s testimony. We have no idea what either item contained.
a. The statement
According to Ark. R. Crim. P. 17.1(a)(i) the State is required to furnish to the defendant the names and addresses of its witnesses. The sister’s name was furnished. Subsection (a)(iv) of the Rule also requires that “any reports or statements of experts, made in connection with the particular case, including results of physical . . . examinations” be provided.
No doubt the State was required to give Mr. Thompson the name of a witness to be called against him, and it did so, but he cites nothing to support his apparent claim that the State was required to furnish him with the statement the sister gave to a police officer. He did not seek a continuance to ascertain the contents of the tape recording, and he makes no claim that the sister’s statement was or could have been exculpatory.
Mr. Thompson cites Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985), and argues had he known the sister was to testify that she too was a rape victim, he could have prepared to meet that testimony. In the Lewis case we reversed a conviction not because the State had failed to provide the defendant with the statement of a witness but because the identity of the witness had not been furnished. The case does not stand for the proposition that the State was obliged to furnish Mr. Thompson with a statement made by the sister.
b. The medical report
As to the medical report and the separate motion for mistrial, the argument is that Rule 17.1 specifically requires that such a report be furnished to the defendant. The State inexplicably does not respond. The Trial Court remarked that the State should have furnished the medical report, and we agree. We cannot reverse on the point, however. As the report was not in evidence, we cannot ascertain whether any prejudice resulted from failure of the State to have furnished it to Mr. Thompson.
Defense counsel informed the Trial Court that the prosecutor had a medical report and said “we would like to offer that.” The prosecutor then apparently produced a document and professed confusion as to its nature. It was apparently not marked for identification, admitted into evidence, or mentioned further, except for the Trial Court’s statement that he would let defense counsel read the report.
The only remedy requested by Mr. Thompson was a mistrial. A mistrial is an extreme sanction for a Rule 17.1 violation and is to be avoided unless the fundamental fairness of the trial itself is at stake. Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987). We will not reverse absent a showing of unfair prejudice. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied 470 U.S. 1085 (1985).
2. Other crimes
Mr. Thompson moved in limine to exclude anticipated evidence of other crimes on the ground that the evidence is inadmissible according to Ark. R. Evid. 404(b). The ruling on the motion was deferred until presentation of the testimony in question. When the sister testified, the Trial Court admonished the jury to the effect that her testimony about other crimes was to be admitted to show only “motive, opportunity, intent, knowledge, identity and absence of mistake,” apparently quoting the Rule.
Mr. Thompson says the sister’s testimony was inadmissible because the Trial Court failed to conduct a “fact-intensive inquiry” prior to admission of the testimony, citing Baldridge v. State, 32 Ark. App. 160, 798 S.W.2d 127 (1990). There the appellant was convicted of raping his nephew. At trial, his niece was allowed to testify about sexual advances the appellant made toward her. The Court of Appeals affirmed the conviction and held that the testimony was properly admitted because the niece’s testimony was relevant on the issues of opportunity, plan, and motive.
Evidence of other sexual acts with children is admissible when it tends to show a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). The testimony of other rape victims is relevant in a criminal trial for the rape of an underage victim to show “motive, intent or plan.” Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant, a juvenile, was charged in circuit court with aggravated robbery. He filed a motion to transfer the case to juvenile court. The circuit court denied the motion. Appellant filed this interlocutory appeal from the circuit court’s denial of the transfer motion. We affirm the ruling of the circuit court.
A prosecuting attorney has the discretion to file charges in circuit court when a case involves a juvenile fourteen or fifteen years of age and the alleged act constitutes aggravated robbery. Ark. Code Ann. § 9-27-318(b) (Repl. 1993). In deciding whether to retain jurisdiction of the case, the trial court shall consider the seriousness of the offense, whether the offense is part of a repetitive pattern of adjudicated offenses, and the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993). A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).
The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann § 9-27-318(e)(l), see Slay v. State, 309 Ark. 507, 832 S.W.2d 217, (1992), a case in which the underlying crime was rape, and we wrote, “Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(l), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d at 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994) .
The standard of review in a juvenile transfer case is whether the trial court’s denial of the motion to transfer was clearly erroneous. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). In this case the proof showed that early in the afternoon of October 11, 1994, appellant broke into a residence and stole, among other items, a .22 caliber handgun and a .22 caliber rifle. Later that afternoon he took the loaded .22 caliber handgun to a pawnshop, pointed it at the proprietor, and demanded two handguns that were in a guncase and the money in the cash register. He left with the guns and money. Later that same afternoon he was arrested and, at the time, had the loaded 9 millimeter handgun taken from the pawnshop on his person and had the loaded .22 pistol taken from the residence on his moped. In the findings of fact, the circuit judge stated:
There are several factors I simply cannot overlook; obviously, the serious nature of these allegations, which apparently the defendant has admitted participating in. Aggravated robbery — violence as such may not have occurred in the traditional sense. In other words, no guns were fired or no one was assaulted or battered but certainly when a citizen looks down the barrel of a loaded revolver in the process of being held up, in my judgment that is a violent act.
In Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994), we affirmed the circuit court’s denial of a motion to transfer to juvenile court. The defendant was charged with aggravated robbery, allegedly having pulled a gun on a clerk, but not firing it. The trial court determined that the crime of aggravated robbery was one of violence. The defendant argued on appeal that his act was one of a threat to commit violence, not one of violence. We affirmed the trial court’s ruling and, in part, stated:
We also affirm the ruling on aggravated robbery based on our case of Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). The aggravated robberies in that case were almost identical to the one in the case at bar, and we “determined that there was violence employed in the commission of the offenses.” Williams, 313 Ark. at 455, 856 S.W.2d at 7. Thus, we affirm the circuit court’s ruling denying the motion to transfer the aggravated robbery charge to juvenile court.
Id. at 524, 878 S.W.2d at 760.
Similarly, in Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), we considered the violent nature of the crime of aggravated robbery. The defendant, who was also charged with two counts of capital murder, filed a motion to transfer two counts of aggravated robbery. At the hearing, the defendant only presented evidence of his age to support his motion. His attorney made the statement that the defendant had no prior involvement with the law. The State only presented the violent nature of the crimes of aggravated robbery as evidence. In affirming the denial of the motion to transfer, we said:
We considered the sufficiency of violence attached to a crime as a sufficient factor to refuse transfer in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). The crime in Walker was first degree murder whereas the offenses in this case are aggravated robbery.... [T]he question before us is whether multiple counts of aggravated robbery are sufficient to withstand a motion for transfer when the opposing evidence is essentially the defendant’s age.
While the charge here is not identical to Walker, it is nonetheless serious. First degree murder and aggravated robbery are both class Y felonies. The difference is that in murder, violence is necessarily present and though aggravated robbery can be completed without the actual use of violence [Ark. Code Ann. § 5-12-103 (1987)], nevertheless, there are policy reasons why the offenses are treated comparably by the legislature and the trial court could take note of that parity.
Id. at 535-536, 823 S.W.2d 445.
Based on Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994), Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993), the case cited in Johnson, and Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), the trial court could have relied on the violent nature of the crime of aggravated robbery in denying appellant’s motion to transfer to juvenile court. No violence beyond that necessary to commit the offense of which the defendant is accused is necessary under Ark. Code Ann. § 9-27-318(e)(1). See Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). Even so, the record demonstrates that the trial court relied on more than the violent nature of the alleged crime in denying the motion to transfer.
The trial court considered appellant’s prior history, character traits, mental maturity, and other factors reflecting upon his prospects for rehabilitation. See Ark. Code Ann. § 9-27-318(e)(3). Specifically, the court considered the evidence that appellant had problems since the first grade and that efforts to address the problems had been unsuccessful. The court considered that appellant’s mother had tried unsuccessfully to help him and that she had assisted the juvenile court in getting appellant into a hospital, apparently for drug addiction or alcohol addiction. In discussing the fact that appellant had no prior adjudications, the trial judge addressed appellant’s prior contacts with the juvenile system, which included charges or allegations of assault and battery, theft by receiving, shoplifting, theft of property, and the burglary and aggravated robbery, and stays in a juvenile detention center and a hospital. In reaching his determination, the trial judge stated:
In my judgment, Mr. Holmes, considering the seriousness of this offense and the other factors which I have enumerated, the prospects for your rehabilitation at present are, in my judgment, nonexistent. Attempts have been made, and for whatever reason, you didn’t avail yourself of the opportunity to get yourself straightened out.
Though he was not required to do so, the trial judge made specific findings of fact at the hearing. See Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). The trial court’s findings show that the court did in fact consider the three factors listed in Ark. Code Ann. § 9-27-318(e). The alleged crime was serious and of a violent nature, and appellant’s history supports the trial court’s determination that he was not a good prospect for rehabilitation. The fact that appellant had no prior adjudications does not render the trial judge’s decision erroneous, since it is not necessary that proof of each factor listed in Ark. Code Ann. § 9-27-318(e) be presented or that the trial court give each factor equal weight.
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Robert H. Dudley, Justice.
On May 6, 1993, plaintiff Orena Dent gave a joint and several general power of attorney to her sister, defendant Lula Wright, and her nephew, defendant J.L. Wright, Jr. Lula Wright is the mother of J.L. Wright, Jr. On the same day plaintiff opened a joint bank account in her and her sister’s names. There was no designation to the banking institution that the account was not to be the property of both joint tenants. See Ark. Code Ann. § 23-32-1005(1)(A) (Repl. 1994). Both plaintiff and defendant Lula Wright wrote checks on the account. Appellant wrote most of the checks, but there is no question that all of the checks written by defendant Lula Wright were for the benefit of plaintiff. On March 14, 1994, about ten months after plaintiff opened the joint bank account, plaintiff gave bills of sale to defendant J.L. Wright, Jr., for an automobile and for a mobile home. The bill of sale for the automobile reflected a consideration of one dollar, and the bill of sale for the mobile home reflected a consideration of one thousand dollars, but, in fact, no consideration was paid. On March 24, 1994, defendant Lula Wright withdrew all of the money from the joint banking account. Defendant Lula Wright does not contend that she is the owner of the money. Instead, she states that it is plaintiff’s money, but if the plaintiff’s name remained on the account, she would waste the money and become an indigent.
Later, plaintiff decided that she wanted back the car, the mobile home, and the money, and asked for their return. Both defendants refused. Plaintiff employed an attorney who made formal demand upon both defendants for the return of the property. Defendants declined. Plaintiff filed this one suit against the two separate defendants. The chancellor ruled in favor of each of the defendants, and plaintiff appeals. We affirm in part and reverse in part. For clarity, we discuss the suit against the separate defendants in the first two separate parts of this opinion, and discuss a subject-matter jurisdiction issue in the third part.
I.
On appeal, plaintiff contends that the chancellor erred in ruling that J.L. Wright did not exercise undue influence or commit fraud on the plaintiff to obtain the bills of sale to the automobile and mobile home. Defendant J.L. Wright, Jr,, testified that plaintiff told him she wanted to live in a nursing home and wished to give him her car and mobile home. He said he knew that she gave other relatives property amounting to about $60,000, and later became angry at those relatives and demanded back the property. In fact, she previously had given the same car and mobile home to another nephew and then sued the nephew for return of property. He testified that he told her the only way he would accept the car and mobile home was upon the advice of her attorney and through a valid legal transfer of the titles. He testified that he told her to follow the advice of her lawyer. He testified that he and Lula Wright subsequently took plaintiff to her attorney, J.F. Sloan, III, for advice.
Mr. Sloan, a respected attorney in the community, testified that he previously represented plaintiff; in fact, he had represented her in a suit against another nephew, William Sexton, to recover the same car and mobile home. He stated that plaintiff called his office for an appointment, and, at the appointed date, plaintiff, J.L. Wright, Jr., and Lula Wright came to his office. He said that he advised plaintiff against transferring the titles to defendant J.L. Wright, Jr., but she insisted on so doing. He testified that he did not witness any encouragement or inducement being made by either of the Wrights, and in fact their actions were “to the contrary” while plaintiff was “insistent.” He testified that plaintiff was “impatient” because he did not prepare the documents as quickly as she wanted.
Plaintiff did not testify to any undue influence or fraud. She testified that she did not recall conveying her car and mobile home to defendant J.L. Wright, Jr. However, she also testified that she remembered going to her attorney’s office and signing some papers, but did not remember what they were. She testified, “When my sugar gets high or low or whatever happens there is times that I don’t remember.”
A niece, Freda Butler, testified that plaintiff gave her $17,500.00 on July 19, 1991, or almost three years before she con veyed the car and mobile home to defendant. She testified that plaintiff gave William Sexton, another nephew, money, the same car, and the same mobile home, but then became “disturbed” about those gifts. She further testified that plaintiff gave Sexton and a stepdaughter equal amounts of money at the same time she gave her the $17,500.00. She stated she observed that plaintiff was confused at times, but not when she gave her money.
Chancery decisions are reviewed de novo on appeal, but the appellate court will not reverse the findings of the chancellor unless they are clearly erroneous. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). 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. at 553, 713 S.W.2d at 464.
It was tacitly admitted that defendant J.L. Wright, Jr., was in a fiduciary relationship with appellant at the time he obtained the titles because it was admitted that he held a power of attorney from plaintiff. A person who holds power of attorney is an agent, and it has long been recognized that a fiduciary relationship exists between principal and agent in respect to matters within the scope of the agency. Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S.W.2d 594 (1951). Transactions between persons connected by fiduciary relations will be closely scrutinized when the relation implies that one person has controlling influence over the other. Hawkins v. Randolph, 149 Ark. 124 (1921). However, even in fiduciary relationships this court has refused to find undue influence in the transfer of property when there has been no showing that the donees said or did anything to put the donor in a position of fear or that they committed fraud on her or overreached her in any way. Howard v. Glaze, 292 Ark. 28, 727 S.W.2d 843 (1987). This is true even when there is evidence to raise suspicion about impure motives. Id. at 31, 727 S.W.2d at 846.
It has been noted that there are not a lot of Arkansas cases on the subject of undue influence or duress. See Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). However, it is generally recognized that in order to invalidate a contract, undue influence must operate to deprive a party of his or her free will. 17A Am. Jur. 2d Contracts § 237 at 240 (1991). When unfair advantage in a transaction is rendered probable because of superior knowledge of the matter derived from a fiduciary relationship; from overmastering influence on the one side; or from weakness, dependence, or trust justifiably reposed on the other side, it is incumbent on the stronger party to show that no deception was practiced. Id..; see also Restatement (Second) of Contracts § 177 (1979).
Here, there was no proof that defendant J.L. Wright, Jr., took unfair advantage of plaintiff because of the fiduciary relationship, that he took advantage of her because of trust, or that he deceived plaintiff in any manner. There was substantial evidence that the conveyances were entirely of plaintiff’s volition, and there was substantial proof that J.L. Wright, Jr., did not practice any deception. Thus, we affirm the chancellor’s ruling on this issue. Because we affirm the ruling of the chancellor we need not address the propriety of plaintiff’s asking punitive damages in chancery court.
II.
Plaintiff next contends that the trial court erred in refusing to rule that Lula Wright wrongfully converted the money in the joint bank account. The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993). The bank account that was closed was a joint tenancy with right of survivorship. Ark. Code Ann. § 23-32-1005. Under the foregoing statute, defendant Lula Wright was an “owner” with “rights.” The right to withdraw funds is one of the rights enjoyed by a joint tenant of a bank account. Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991). The signature card for the joint bank account provided, by marking, that the account was “Joint — With Survivorship (and not as tenants in common).” Defendant Lula Wright’s act of withdrawing the funds from the joint account was consistent with her rights as a cotenant of the account.
However, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant. In Hogan v. Hogan, 313 Ark. 374, 855 S.W.2d 905 (1993), we held that even though a joint tenant may withdraw the entire fund, one who does withdraw funds in excess of his moiety is liable to the joint tenant for the excess so withdrawn. Id. at 380, 855 S.W.2d at 909. In that case, two joint tenants cashed a certificate of deposit that had been purchased by their father, the third joint tenant, from funds belonging entirely to him. Id. at 375, 855 S.W.2d at 906. The trial court refused to give relief to the father, and granted summary judgment on the premise that the above statute provides that any joint tenant can redeem a certificate of deposit and whoever redeems it is entitled to the entire amount. Id. at 376, 855 S.W.2d at 906. In reversing, we held that the statutory provision means that the funds may be paid without liability to the financial institution to any one of the joint tenants, but that does not determine ownership to the exclusion of other joint tenants. Id. at 378, 855 S.W.2d at 909. We remanded and directed the chancellor to conduct a hearing on the merits of the matter between the joint tenants, “including a determination as to the imposition of a constructive trust and to apportion the proceeds in accordance with intentions of the parties.” Id. at 381, 855 S.W.2d at 909. We noted that Ark. Code Ann. § 18-60-101 (1987) recognizes the common rights of co-tenants by providing for an accounting when any joint tenant takes benefits greater than his interest. Id. § 18-60-101(a). In addition, we cited with approval Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987), a case in which the court of appeals affirmed a chancellor’s decision to order the appellant to pay the appellee one-half of the funds from joint tenancy accounts that the appellant had transferred to an account in her name only upon the death of the third joint tenant. See Savage, 21 Ark. App. at 51, 728 S.W.2d at 203-04.
The undisputed proof in the case at bar showed that all of the money deposited in the joint banking account came from plaintiff. Defendant Lula Wright testified that none of the money deposited was hers; that she withdrew all of the money from the joint account, and that she did so only because plaintiff, her sister, had become incompetent, and that she was afraid that plaintiff would waste the little money she still retained from her late husband’s estate. Defendant Lula Wright testified that she did not claim any of the money as her own. Under these facts the chancellor, without expressly citing the statute and Hogan v. Hogan, and without using the word “trust,” correctly ruled that defendant Lula Wright held the money solely for the benefit of plaintiff. In the oral findings of fact the chancellor stated:
As far as the money that’s in . . . [defendant] Mrs. Wright’s name for the benefit of [plaintiff] Mrs. Dent, I’m of the opinion that it should probably remain there with Mrs. Wright posting a bond to show that the money is not used for anything except Mrs. Dent’s needs.
I’m of the opinion that for the present time Mrs. Dent is not capable of handling her business affairs, and this should be done by a guardianship, and I don’t know who could be appointed guardian.
After some discussion plaintiff’s attorney stated that he had asked a bank if it would serve as guardian, but the response was negative. Plaintiff’s attorney then asked if the court was also ruling that plaintiff was not competent to enter into a contingent fee contract with him. The court responded:
I’m just of the opinion after hearing the testimony today that she’s not competent to handle her affairs, and I just feel like someone needs to be handling her business affairs for her for the protection of this money that she has left. And I don’t know whoever I appoint, since you represented her, you would be entitled to be paid for services if that’s what you’re asking about.
Plaintiff’s attorney stated that he had exhaustively searched for someone to serve as guardian of plaintiff, but had not been able to find anyone willing to serve. The trial court then stated, “No funds will be withdrawn from that or anything happen to that until the time I appoint someone to take charge of the account.”
The written order of the court provides that plaintiff is found to be incapable of taking care of her estate and a guardian is appointed to receive her assets, and, “The monies which are held by [defendant] Lula Wright for the benefit of Orena Dent shall be transferred to the guardian of the estate and shall not be disbursed by the guardian without court order.”
In summary, the chancellor correctly ruled that the account was a joint tenancy with right of survivorship and that defendant Lula Wright had a right to withdraw the funds as a cotenant. The chancellor additionally found that plaintiff Dent deposited all of the money in the joint account, and when defendant Lula Wright withdrew the funds and placed them in an account in her name, she held the money for the benefit of plaintiff Orena Dent. This amounts to a holding that the money is held in a constructive trust. See Hogan, 313 Ark. at 381, 855 S.W.2d at 909.
Plaintiff does not question the above ruling. Instead, she argues that it was an insufficient recovery because, “The trial court erred in finding that appellee did not convert appellant’s funds.” The argument is without merit for a number of reasons. Contrary to the implication of plaintiff’s argument, the chancellor was not asked to rule on a wrongful conversion, and did not do so, and we will not reverse on an issue not raised or ruled upon. Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994). In addition, we need not determine the issue of whether a conversion occurred because, even if it should have occurred, the proper measure of damages is the market value of the property at the time and place of the conversion. Burdan v. Walton, 286 Ark. 98, 689 S.W.2d 543 (1985). Plaintiff recovered that amount under the chancellor’s ruling, and cannot recover it a second time under a conversion theory. Sandusky v. First Nat’l Bank, 299 Ark. 465, 468, 773 S.W.2d 95, 97 (1989).
III.
Plaintiff’s third assignment is that the chancery court was without subject-matter jurisdiction to appoint a guardian for plaintiff. The argument has merit even though plaintiff acquiesced to the action in the chancery court.
The parties cannot waive subject-matter jurisdiction, and the issue can be raised at any time. Arkansas Dept. of Human Serv. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). Jurisdiction of the probate court over all matters of guardianship, other than guardianships ad litem in other courts, is exclusive. Ark. Const. art. 7, § 34; Ark. Code Ann. § 28-65-107(a) (1987) (emphasis added). The section of the Arkansas Constitution that is now Article 7, section 34, did not consolidate the chancery and probate courts, and, while the judge of the chancery court is also the judge of the probate court, the judge conducts each court separately. Wooten v. Penuel, 200 Ark. 353, 140 S.W.2d 108 (1940). The section does not permit courts of chancery to lift matters over which the probate court has exclusive jurisdiction out of probate courts and apply equitable principles in disposing of controversies cognizable only in probate. Id. at 357-58, 140 S.W.2d at 111; see also Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976) (“probate courts are vested with exclusive jurisdiction in matters relative to . . . guardians. ...”); Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968) (holding that chancery and probate courts are separate tribunals, each having own jurisdiction and that a chancery court cannot “inherit jurisdiction” from probate court in same county); Janssen v. Blissenbach, 210 Ark. 22, 193 S.W.2d 814 (1946) (stating that the two courts are wholly distinct and operate independently of one another and that trial court, sitting as chancery in that case, correctly did not pass on questions reserved for probate). Consequently, the chancery court was without subject-matter jurisdiction to appoint a guardian of plaintiff’s estate, and we reverse and dismiss on this one point.
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