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Per Curiam.
Bobby Michael Friend is incarcerated in the Arkansas Department of Correction and brings this appeal of an order denying his pro se petition for writ of habeas corpus entered in Jefferson County Circuit Court. A judgment and commitment order entered in Sevier County Circuit Court July 28, 1994, reflects that appellant Friend entered a negotiated plea of guilty to each of two counts of capital murder and was sentenced to life imprisonment without parole. This court had previously reversed appellant’s convictions and death sentence on those charges, which arise from the beating deaths of appellant’s parents, and had remanded for a new trial. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Appellant has twice previously filed pleadings alleging grounds for postconviction relief that would have been cognizable under a petition pursuant to Ark. R. Crim. P. 37.1. In each instance, this court found in separate unpublished opinions that the pleadings requesting postconviction relief were not timely filed. Friend v. State, CR 9602 (Ark. March 18, 1996); Friend v. State, CR 98-55 (Ark. June 4, 1998).
Appellant’s sole point on appeal is that the trial court erred in finding appellant had failed to demonstrate the commitment was invalid or that the trial court lacked jurisdiction to sentence appellant to life without parole. He asserts that his plea was invalid because the trial court did not make sufficient inquiry to establish the factual basis for his plea, alleging that the factual basis stated did not sustain a basis for more than second-degree murder and the trial court therefore lacked authority to sentence him to life without parole. The circuit court found in the order dismissing the habeas corpus petition that the petitioner had failed to state a claim upon which habeas relief could issue. We agree.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is illegally detained. Ark. Code Ann. § 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989); see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).
It is true that we will treat allegations of void or illegal sentences similar to the way that we treat problems of subject-matter jurisdiction. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003). Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Id. at 455, 125 S.W.3d 178. However, a habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and is not a substitute for direct appeal or postconviction relief. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). In the case at hand, the type of issue raised by appellant is precisely that which should be limited to relief pursuant to a timely petition for postconviction relief under Ark. R. Crim. P. 37.1.
Rule 24.6 of the Arkansas Rules of Criminal Procedure provides that the trial court shall not enter a plea of guilty without making such inquiry as will establish that there is a factual basis for the plea. The rule is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982). Substantial compliance, however, is sufficient. Id. at 321, 635 S.W.2d at 474. Reversal is not mandated where deficiencies in the proceeding are supplied at a postconviction hearing. Id. The question posed here is not similar to a jurisdictional question, but requires the kind of factual inquiry that goes well beyond the facial validity of the commitment and is therefore best left to a postconviction proceeding. We cannot say that the allegations in appellant’s petition raise a question of a void or illegal sentence such as may be addressed in a habeas corpus proceeding.
Since appellant has failed to show the judgment of conviction was invalid on its face or that the circuit court lacked jurisdiction, the circuit court appropriately determined the writ should not issue. We accordingly affirm the denial of appellant’s petition by the court.
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Jim Gunter, Justice.
This appeal arises from the conviction and sentence of appellant, Wallace Gardner, by a Pulaski County jury for the shooting death of Glen Ford, Jr. Appellant was convicted of capital murder, a violation of Ark. Code Ann. § 5-10-101 (Repl. 1997), a class Y felony, and aggravated robbery, a violation of Ark. Code Ann. § 5-12-103 (Repl. 1997), a class Y felony. Appellant was sentenced as a habitual offender to life imprisonment without parole on the murder conviction and twenty-seven years for the aggravated-robbery conviction. On appeal, he argues that the circuit court erred in denying his motion for directed verdict. We affirm.
On January 5, 2004, appellant and two other men approached the door of an apartment occupied by the victim and Joseph Kendall. Kendall allowed the men to come inside, and appellant asked the victim if he had any dope to sell. The victim replied that he did not have any dope and escorted them out of the apartment. According to accomplice testimony, the victim “rushed” appellant, and appellant and the victim got into a physical altercation. Gunshots were fired, and the group fled the scene in a silver Impala. According to accomplice testimony, appellant admitted that he shot the victim in the chest. The victim suffered a gunshot wound and died from loss of blood and a collapsed lung.
On March 10, 2004, the State charged appellant by felony information with capital murder, aggravated robbery, possession of a firearm, and possession of a firearm by a felon. Appellant was tried on September 28 and 29, 2004. At trial, the following testimony was presented. Appellant’s accomplice, DeAngelo Smith, testified that he received a telephone call from his cousin, Fate McMiller, and Smith went to McMiller’s house. Appellant, McMiller’s brother, and his girlfriend, Kia, drove to McMiller’s house in a silver Impala. Appellant drove McMiller and Smith to several apartment complexes, dropped off Kia, and picked up Wayne Derrick, who said that he needed $400.00. The group then drove to a trailer where one man gave Derrick some bullets. After that, the group went to the victim’s apartment looking for “a white guy and a black guy.” Appellant passed a gun to McMiller, and they discussed how to use the gun. According to Smith, the purpose of going to the victim’s apartment was to “get the dope and the money.”
Smith testified that, once inside the apartment, appellant and the victim were arguing, and the victim insisted that he had no more dope. At trial, the following colloquy occurred during Smith’s testimony:
Q: Do you know what was being said by Wallace Gardner [appellant] and the other guy?
A: No, ma’am. The only thing I heard was the black — the black male [the victim] saying that he — he doesn’t have anymore — anymore dope.
Q: What happened after that?
A: After that, that’s when I turned around and Wallace was walking to the door. So we were about to leave and the white — and the black male was walking behind us. And so I was behind the black male. I was behind him. And Wallace opened the door, and when he opened the door, the black guy was like close to him and I was like behind them, like walking out the door, and he [appellant] turned around.
Q: What happened next?
A: When he turned around, the black guy — black guy rushed him, and the black guy ran toward him in a — in a forceful way. And they were starting to go out the door, and I heard a shot. I heard a gunshot.
Q: What happened after you heard the gunshot?
A: After I heard the gunshot, I started to go out the door, and I looked to my left and I see the white male with a gun in his hand.
Q: Okay. Then what happened?
A: And then after that, I ran out the door. And when I ran out the door, I started running towards the car. And when I got to the car, the car was — well, it wasn’t parked. It was like — like out of the parking spot and like fixing to go down the road — down the roadway. Arid when I looked back over — well, when I made it to the car, the doors were locked. And when I looked over the car, I seen Wallace and the other individual were tussling.
Q: When you say both of them, are you talking about Wallace Gardner and the guy that was in the apartment?
A: Yes, ma’am.
Q: Did anybody talk about what happened?
A: After — after we entered the car?
Q: After you got in the car.
A: When we got in the car, he —Wallace was — the guy — the guy asked, you know, what happened. And Wallace was like I shot him right here. And he said I shot him right here, and it was like pointing in the upper ■— upper part of the chest.
On cross-examination, Smith admitted that he lied to police officers during their investigation.
Lakea Warren, appellant’s former girlfriend, testified that she and appellant were together on the evening ofjanuary 4, 2004, and that appellant was driving her 2000 silver Impala. Appellant dropped 'her off, and she found appellant and her car the next morning.
Edward Henderson, who lives in a trailer in McAlmont, testified that appellant and other men came to his trailer on the night ofjanuary 4 or January 5, and they left with some ammunition. Chris Perry, who lived at the same apartment complex as the victim, testified that on the night ofjanuary 5, 2004, he heard gunshots and noticed a silver vehicle driving “erratically” with “a male running on the side ofit.” Additionally, Linda Williams, who lived next door, testified that she heard gunshots outside her apartment, and a bullet passed through her apartment and lodged in a wall.
Pivotal testimony came from Joseph Kendall, who was with the victim at his apartment on the night of the murder. Kendall recognized appellant as one of the men who came to the victim’s apartment. Kendall testified that, between 11:30 p.m. and 12 a.m., the three men came into the apartment and wanted to know if they had any dope. According to Kendall, the victim would have sold dope to appellant, but he did not know him. Appellant “had a funny look on his face” and “was the only one that said anything.” The following colloquy occurred at trial:
Q: What did he [appellant] say to you?
A: He just — well, like do y’all got some dope? He was like I know y’all got some. He just kept really pushing the issue on it.
Q: Okay. So y’all said you didn’t have any dope to sell?
A: Right.
Q: And what happened then?
A: Well, he was like all right we’re fixing to go. So the other two dudes, they left out first.
Q: All right.
A: And he [appellant] left out last. And he asked one more time like man y’all sure y’all ain’t got nothing? I was like no, we ain’t got nothing. So Glen was like closing the door, and I was looking out the window trying to see what kind of car or whatever they was in because we live in a — it’s like a dead end where our apartment is, and I didn’t see no car outside. And when he was closing the door, I heard Glen say hold on____And then the door swung open and then I heard — I heard two shots.
Q: What, the door was kind of like knocked open?
A: Right.
Q: And who was — who was he walking out the door — who was the person he was next to when he was walking out the door?
A: Well, he wasn’t really next to him. He was kind of like right behind him.
Q: Who was he right behind?
A: He was the last one to leave.
Q: This guy [appellant] was?
A: Right.
Kendall testified that he hid cocaine and a gun that was on the victim’s person before calling 911. It was later determined that the victim had 8 grams of cocaine on his person.
Kendall further testified that he identified appellant, a local rapper, from a CD cover while at a friend’s house. Kendall stated, “So as soon as he [friend] brought me the cover, I looked at the picture. I was like this is the dude right here. It just — you know, it just all came to me right then.” Detective Mike Blain, an investigator who was assigned to investigate the victim’s death, testified that Kendall identified appellant in a photo spread.
Dr. Charles Kokes, chief medical examiner at the Arkansas State Crime Laboratory, testified that the cause of death was the gunshot wound. He testified that the victim had cocaine in his system. A tube of Chapstick and $126.85 were present on the victim’s person.
The jury convicted appellant of capital murder and aggravated robbery, and sentenced him to life imprisonment without parole and a consecutive term of 324 months. From this conviction and sentence, appellant brings his appeal.
Appellant’s sole point on appeal is that the circuit court erred in denying appellant’s motion for directed verdict on the capital-murder charge. Specifically, appellant challenges the sufficiency of the evidence on the basis that there was insufficient corroboration of accomplice testimony. Appellant further asserts that the State’s corroborating evidence is insufficient to sustain the burden of proof for the underlying felony of aggravated robbery.
In response, the State argues that it is not required to prove each element of the offense independently of the accomplice’s testimony. The State further asserts that appellant’s claims should be rejected because the evidence demonstrated that the underlying felony of aggravated robbery was attempted and that appellant was connected to the crime.
It is well settled that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice’s testimony, and the failure to challenge the sufficiency of accomplice-corroboration evidence in a directed-verdict motion at trial precludes appellate review on that ground. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).
Appellant does not challenge the sufficiency of the evidence supporting the act of the murder itself, but rather, his argument focuses on the State’s proof offered in support of the underlying felony of aggravated robbery. Appellant was convicted of capital-felony murder with aggravated robbery as the underlying felony, pursuant to Ark. Code Ann. § 5-10-101(a)(l), which provides in pertinent part:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he or she commits or attempts to commit... robbery..., and in the course of and in furtherance of the felony or in immediate flight therefrom, he or she or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]
Id. Under the capital-felony-murder statute, the State must first prove the felony, so the felony becomes an element of the murder charge. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).
A person commits the offense of aggravated robbery “if he commits robbery as defined in § 5-12-102, and he (1) [i]s armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) [i]nflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103 (Repl. 1997). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102 (Repl. 1997).
The accomplice-corroboration statute, found at Ark. Code Ann. § 16-89-lll(e)(l) (2003), provides:
(e)(1) A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
(2) However, in misdemeanor cases, a conviction may be had upon the testimony of an accomplice.
Id.
Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not directed toward corroborating the accomplice’s testimony. Id. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the accused with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).
With this well-established precedent in mind, we turn to the present case. Appellant’s attorney made the following motion for directed verdict at the close of the State’s case-in-chief, where the following colloquy occurred:
Defense counsel: Your Honor, at this time I would move for a directed verdict. I feel like the State has not met its burden of proof regarding the capital murder. They have not shown it was Wallace Gardner, first of all. I think there’s been several different — the Joe Kendall gave several different descriptions about the person and said several different times that he didn’t know the person, never saw their face, many different things that caused him to question the identity. Also, I would add that there’s no showing that this was committed in the course or in furtherance of an aggravated robbery. There’s been no showing of anything taken, no money, no drugs taken. There’s been —Joe Kendall said that he never saw anybody with a gun, there was never anything going on that indicated a robbery. And in DeAngelo Smith’s first sworn statement, he said that it was no robbery. I think the State’s not met its burden of proof with regard to that, and that would be my same argument for the aggravated robbery count. Also, to simply say that as far as there’s also not been sufficient corroboration of — of DeAngelo Smith’s statement regarding this incident.
The Court: Okay. In viewing the light most favorable to the State and in viewing the evidence and the testimony in the light most favorable to the State, which I believe is my standard at this point in time during the trial, I’ll deny the defense’s motions for directed verdict ...[.]
Here, there is sufficient evidence to support appellant’s conviction of the underlying felony, aggravated robbery, after eliminating the accomplice testimony of DeAngelo Smith. Other corroborating evidence presented at trial demonstrates that appellant (1) had the purpose of committing theft with the use of physical force, (2) was armed with a deadly weapon, and (3) caused the death of the victim. See Ark. Code Ann. §§ 5-12-102 through 103. First, appellant had the purpose of committing a theft with the use of physical force. Appellant and three other individuals went to Henderson’s house with the purpose of acquiring ammunition for their firearm. One individual remained in a getaway car while appellant, Smith, and McMiller went to the victim’s apartment. Kendall, the victim’s friend and a witness at the scene, provided crucial testimony that he did not know appellant, but appellant and “two other dudes” showed up unexpectedly at the victim’s apartment and repeatedly asked “a dozen” times if Kendall and the victim had any dope. According to Kendall, appellant insisted, “I know y’all got some.” Kendall testified that appellant and the others did not follow the. victim’s typical procedure for a drug transaction. He stated, “[N]obody had called or nothing. Because we usually work off of the phone or whatever.” Kendall further testified that the victim did not want to sell any dope to appellant, who had a “funny look on his face.” While the group was present in the victim’s apartment, appellant was the only one who did the talking. This fact demonstrates that the group was not present for a social visit, but rather they went to the apartment, armed, to steal drugs from the victim. Kendall further stated that the other two men left first. As the victim shut the door, Kendall heard the victim say, “[H]old on,” to appellant before he heard two gunshots. Thus, based upon these circumstances, we conclude that appellant had the purpose of committing theft with the use of physical force.
The second element of appellant’s possession of a deadly firearm is satisfied. See Ark. Code Ann. § 5-12-102. Henderson testified that appellant and three men came to his trailer, where appellant displayed a gun. Henderson provided ammunition for the firearm, and Kendall testified that, although he did not see a handgun on appellant’s person, he heard two gunshots fired after the other two men left the victim’s apartment after the struggle between appellant and the victim ensued. Additionally, the third element is satisfied. See Ark. Code Ann. § 5-12-102. Dr. Kokes testified that the victim died from a gunshot wound. Therefore, the testimony presented at trial, without the use of the accomplice testimony, tends to a substantial degree to connect the accused with the commission of the crime. See Rhodes, supra. Based upon our standard of review of viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence to support appellant’s capital-murder conviction with the underlying aggravated-robbery felony. Accordingly, we affirm the jury’s verdict.
The State asks us to reject the “test of elimination” requirement articulated in Froman v. State, 232 Ark. 697, 702, 339 S.W.2d 601, 604 (1960), and its progeny, as the State contends that the requirement “does not comport with the requirement enacted by the legislature.” See Ark. Code Ann. § 16 — 89—111 (e) (1). However, based upon our holding in this case, we see no need to disrupt our long-standing case law on this issue by eliminating the requirement. There is sufficient evidence to support appellant’s conviction after eliminating the accomplice testimony of DeAngelo Smith and relying upon the testimony of Joseph Kendall, Edward Flenderson, and Dr. Kokes.
Pursuant to Ark. Sup. Ct. R. 4-3(h), we have reviewed the record and have determined that there are no errors with respect to rulings on objections or motions prejudicial to the defendant not discussed above. Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005).
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Jim Hannah, Chief Justice.
Appellant Warren Scheley Camp, Jr., was convicted of driving while intoxicated, seventh offense, in the Benton County Circuit Court. On appeal, Camp challenges the validity of the circuit court’s use of three prior convictions in Fayetteville District Court for driving while intoxicated to enhance his sentence. Specifically, he contends that the circuit court committed reversible error when it failed at sentencing to exclude the prior convictions because they were obtained in violation of the Sixth Amendment of the United States Constitution, article 2, § 10 of the Arkansas Constitution, and the . Arkansas Rules of Criminal Procedure. We find no error and affirm.
On May 24, 2002, the State filed a felony information against Camp, charging him with one count of driving while intoxicated, fourth offense. Subsequently, the State amended the charge against Camp to one count of driving while intoxicated, seventh offense. Camp filed a motion to strike prior convictions, arguing that the prior convictions used to enhance his sentence from a DWI, fourth offense, to a DWI, seventh offense, were invalid. In a bench trial on April 12, 2004, Camp was found guilty of DWI, seventh offense, and the circuit court agreed to rule on Camp’s motion to strike prior convictions when Camp appeared for sentencing.
The parties stipulated to the following facts related to Camp’s prior DWI convictions:
1. Docket Sheet #98-14785 shows a conviction for DWI #2. The defendant was represented by defense attorney Tim Buckley. Among other things, the defendant served 7 days in jail. The disposition date was December 16, 1998.
2. Docket Sheet #98-428 shows a conviction for DWI #2. The defendant was pro se. Among other things, the defendant served 7 days in jail. The disposition date was December 21, 1998.
3. Docket Sheet #98-25120 shows a conviction for DWI #3. The defendant was represented by defense attorney Bob White. Among other things, the defendant served 120 days in jail. The disposition date was March 24, 1999.
4. In each of these cases, the defendant never personally appeared before the judge to conduct the plea hearing. In those cases where he was represented by counsel, the plea papers were submitted to the court clerk on or near the disposition dates. The defense attorney did not appear in open court or the judge’s chambers to conduct the plea hearing.
5. In the case where the defendant was pro se, not only did the defendant never appear before the judge, he did not sign the waiver of counsel papers with the judge. All the paperwork, which would include any plea forms and waiver of counsel forms, was provided to the defendant by the prosecuting attorney’s office or the court clerk.
6. After the entry of plea papers with the court clerk, a defendant normally would go to the Ozark Guidance Center to get the pre-sentencing report contemplated by Ark. Code Ann. § 5-65-109.
7. The defendant never completed the OGC requirements in any of the Fayetteville District Court cases. There were no presentencing reports for any of the cases as is contemplated by Ark. Code Ann. § 5-65-109.
8. Any document that states that the defendant appeared before the judge on any of the three pleas in Fayetteville District Court is erroneous as the defendant never, at anytime, appeared before any judicial officer in relation to any of the pleas. This includes the Waiver of Attorney form signed by the defendant on December 21, 1998.
At sentencing on May 24, 2004, the circuit court denied Camp’s motion and made the following findings:
It’s not an easy issue because clearly the Fayetteville District Court was not following the Rules of Criminal Procedure, was not taking pleas or sentencing in accordance with the Rules of Criminal Procedure. And there is a lot of merit to the argument that it’s something of a wrong without a remedy in that if the person — if the Court doesn’t conduct itself appropriately, you have — you know, your only remedy is to appeal.
In this case — in this case, however, these were all sentencing pursuant to some sort of plea bargain, and it was certainly not to the advantage of the Defendant to appeal. So that — and now we’re at the point some long time later and Defendant wishes to collaterally attack those convictions that were at the time improperly imposed. The other side of that coin is that it would be like getting your cake and eating it, too. You got the benefit of a plea bargain, but — I mean it — after it’s eaten, you’re not so happy with it.
What my ruling is that — is that Mr. Camp cannot collaterally attack those judgments, and that those judgments stand and can be counted for purposes of enhancement under the Driving While Intoxicated Law.
After concluding that the prior convictions were not subject to collateral attack, the circuit court sentenced Camp to three years in prison with an additional four years suspended, and it was recommended that his three-year sentence be transferred to the therapeutic community substance program of the Department of Community Correction.
We begin by noting that the State concedes that there were procedural errors that occurred in the three Fayetteville District Court cases involving violations of Arkansas Rules of Criminal Procedure 24.3, 24.4, 24.5, and 24.6. Further, aside from the district court’s failure to comply with the rules of criminal procedure when accepting Camp’s guilty pleas, it is clear that the district court failed to follow proper procedure during sentencing because in each of the prior cases at issue, the district court pronounced sentence prior to receiving a presentence report, in violation of Ark. Code Ann. § 5-65-109. The question before this court is not whether errors occurred during the prior cases at issue. Rather, we must determine whether, under the facts of this case, Camp may collaterally attack the validity of prior convictions at a sentencing hearing for his subsequent conviction.
We have stated that there must be finality to all litigation, criminal as well as civil. King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991). The general rule is that a defendant who does not appeal a criminal conviction must be barred from collaterally attacking a judgment. Id. Here, Camp had the right to appeal each of his prior convictions to the circuit court, pursuant to Arkansas Inferior Court Rule 9. Under Rule 9, all appeals from district courts to circuit courts must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty days from the entry of the judgment. As previously stated, Camp did not appeal any of the prior convictions at issue. Camp claims that he is not barred from collaterally attacking his prior convictions because he was denied his constitutional rights as guaranteed by the Sixth Amendment. In support of this argument, Camp cites Custis v. United States, 511 U.S. 485 (1994). In that case, the United States Supreme Court was presented with the question of whether a defendant in a federal sentencing proceeding may collaterally attack the validity of the previous state convictions that are used to enhance his sentence under the Armed Career Criminal Act of 1984. The Court held that with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no such right to collaterally attack prior convictions. Custis, 511 U.S. at 487.
The State points out that in Camp’s case, he was either represented by counsel or made a knowing waiver of his right to counsel in each of the three Fayetteville District Court cases. Accordingly, the State contends that Camp’s Sixth Amendment right to counsel is not implicated in this appeal, and Camp’s reliance on Custis is misplaced. We agree. Here, Camp was represented by counsel in two of the prior DWI offenses at issue. As to the remaining offense, the record reveals that Camp signed a waiver-of-counsel form. Still, Camp maintains that the procedure used in the Fayetteville District Court cases “completely circumvented the judge,” and that “such circumvention of an important judicial function is certainly no less a constitutional evil than that of denying the defendant an attorney.”
The Custis Court’s holding suggests otherwise. The Court opined that the “failure to appoint counsel for an indigent defendant was a unique constitutional defect.” Custis, 511 U.S. at 496. Further, the Court declined to extend the right of collateral attack to include other violations such as the right to effective assistance of counsel, the right to make a knowing and intelligent guilty plea, and the right to be adequately advised of rights associated with a “stipulated facts trial.” Id. at 496. In declining to extend the right of collateral attack to include the other violations, the Court noted that none of the alleged constitutional defects cited by the appeD lant “rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all.” Id. The Court explained:
Ease of administration also supports the distinction. As revealed in a number of the cases cited in this opinion, failure to appoint counsel at all will generally appear from the judgment roll itself, or from an accompanying minute order. But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era, and may come from any of the 50 States.
The interest in promoting the finality of judgments provides additional support for our constitutional conclusion. As we have explained, “[ijnroads on the concept of finality tend to undermine confidence in the integrity of our procedures” and inevitably delay and impair orderly administration of justice. United States v. Addonizio, 442 U.S. 178, 184, n. 11, 99 S.Ct. 2235, 2240, n. 11, 60 L.Ed.2d 805 (1979). We later noted in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), that principles of finality associated with habeas corpus actions apply with at least equal force when a defendant seeks to attack a previous conviction for sentencing. By challenging the previous conviction, the defendant is asking a district court to “deprive [the] [state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmenft].” Id. at 30, 113 S.Ct. at 523. These principles bear extra weight in cases in which the prior convictions, such as one challenged by Custis, are based on guilty pleas, because when a guilty plea is at issue, “the concern with finality served by the limitation on collateral attack has special force.” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (footnote omitted).
Id. at 496-97.
Though it is evident that many procedural errors occurred in the district court cases, we do not believe that any of the errors rise to the level of a jurisdictional defect resulting from the failure to appoint counsel at all; therefore, the errors may not form the basis of a collateral attack of prior convictions used to enhance a sentence. We hold that the circuit court did not err in denying Camp’s motion to strike prior convictions.
Affirmed.
Inferior Court Rule 9 governed at the time of the prior convictions at issue. The Arkansas Inferior Court Rules were revised and renamed the Arkansas District Court Rules, effective January 1,2005, to comply with Amendment 80 of the Arkansas Constitution.
Additionally, Camp argues that the procedural errors violate article 2, § 10 of the Arkansas Constitution; however, he offers no authority or argument as to why the errors constitute separate state constitutional violations. This court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
This court, too, has recognized that “[p]rior convictions may not be considered for the purposes of the sentencing enhancement portions of the act unless the record shows the accused had counsel in the trials leading to the prior convictions or that the right to counsel was waived.” Southern v. State, 284 Ark. 572, 573, 683 S.W.2d 933, 934 (1985) (affirming trial court’s suppression of prior DWI convictions to enhance a sentence).
We observe that a number of jurisdictions have concluded that Custis permits a defendant to collaterally attack the validity of prior convictions used to enhance a sentence only if the defendant was denied counsel; accordingly, those jurisdictions have declined to extend the right to collaterally attack convictions beyond what is mandated by the federal constitution or specifically provided for by statute. See, e.g., State v. Veikoso, 102 Haw. 219, 74 P.3d 575 (2003) (holding that a defendant may not collaterally attack prior counseled DUI convictions on the basis that they were obtained as the result of allegedly invalid guilty pleas); State v. Weber, 140 Idaho 89, 90 P.3d 314 (2004) (holding that violation of provision of criminal rules governing the practice of accepting guilty pleas did not provide independent basis to collaterally attack validity of prior convictions used to enhance subsequent sentences); State v. Mund, 593 N.W.2d 760 (N.D. 1999) (holding that when guilty pleas are offered for enhancement purposes in subsequent criminal proceedings, collateral attacks are limited to an inquiry of whether defendant was denied assistance of counsel); State v. Janes, 141 N.H. 364, 684 A.2d 499 (1996) (holding that defendant could not collaterally attack prior out-of-state conviction on the ground that he was never advised of his rights to remain silent and confront adverse witnesses); Vester v. Commonwealth, 42 Va. App. 592, 593 S.E.2d 551 (2004) (holding that defendant was not entitled to collaterally attack the validity of his prior misdemeanor DUI convictions on the ground that he was denied effective assistance of counsel); State v. Hahn, 238 Wis. 2d 889, 618 N.W.2d 528 (2000) (holding that defendant had no federal constitutional right to challenge in his third-strike proceeding as a repeater on the basis that his prior conviction was obtained from a guilty plea that was not knowing, intelligent, and voluntary). But see People v. Soto, 46 Cal.App. 4th 1596, 54 Cal. Rptr. 2d 593 (1996) (stating that Custis set forth a federal procedural rule and was not intended to prohibit constitutional attacks on prior convictions in state courts). | [
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Robert L. Brown, Justice.
Before this court is the motion by Intervenors Rogers School District No. 30, Barton-Lexa School District, Little Rock School District, and Pulaski County Special School District, filed October 24, 2005, for action upon the Special Masters’ Report. Previously, Rogers School District and others moved this court to recall its mandate, reappoint masters, and order the State Defendants to show cause why they should not be held in civil contempt for failure to comply with this Court’s previous orders, which we granted on June 9, 2005. A total of forty-nine school districts so moved or joined in at least part of that original motion as intervenors or amici curiae (hereinafter collectively referred to as Rogers School District).
By our decision on June 9, 2005, we granted part of Rogers School District’s original motion by recalling the mandate in this case and by reappointing Bradley D. Jesson, former Chiefjustice of the Arkansas Supreme Court, and David Newbern, a former justice of the Arkansas Supreme Court, to file a report and make findings of fact regarding the following issues, in addition to any other issue they deemed relevant to the State’s constitutional compliance:
(1) this court’s jurisdiction to hear the instant motions;
(2) whether the General Assembly at its 2005 regular session retreated from its prior actions to comply with this court’s directives in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), particularly with respect to the General Assembly’s actions or inactions in relation to Act 57 and Act 108 of the Second Extraordinary Session of 2003;
(3) whether the foundation-funding levels for the next biennium assure a continual level of adequate funding for Arkansas students; and
(4) whether the General Assembly’s commitment to facilities funding meets the adequacy criterion.
On October 3, 2005, the Masters filed an 83-page report with this court which addressed the issues requested, as well as other issues they deemed relevant, and made findings of fact. On October 24, 2005, Rogers School District filed the instant motion requesting this court to adopt the Special Masters’ findings of fact and recommendations, to call upon the Governor to convene a special session of the General Assembly for curative legislation, and to rule certain acts of the 2005 legislative session unconstitutional as violative of the equal-protection sections of the Arkansas Constitution. Rogers School District further asked this court to retain jurisdiction of the case to assure compliance.
We express our sincerest appreciation to former Chief Justice Bradley Jesson and former Justice David Newbern for the exceedingly thorough analysis they performed in response to this court’s charge set out in our per curiam order dated June 9, 2005. The dedication and commitment they have shown to the task at hand are truly exemplary. The court is profoundly grateful for the work they performed.
We begin with a summary of the salient findings of fact and conclusions of law made by the Masters in their report and follow with our opinion in this matter.
I. Masters’ Report
A. Masters’ Findings of Fact
1. Foundation Funding
The Masters found that basic foundation funding for school districts for the 2005-2006 school year was calculated by using $5,400 for each student multiplied by the average daily membership of the school district for the previous school year. This was the same foundation funding for the 2004-2005 school year.
Act 59 of the Second Extraordinary Session of2003 set forth the funding formula for the 2004-2005 school year. Act 2283 of 2005 did not increase the $5,400 foundation-funding amount for the 2005-2006 school year. Act 2283 did increase the figure for the 2006-2007 school year by $97 for a total of $5,497.
Act 1426 of 2005 requires that each school district dedicate nine percent of its total foundation funding, or $486 of the $5,400 amount, for utilities, custodial costs, maintenance and repair, renovation, and related personnel costs. The act effectively limits the use of the funds so that they cannot be used for other expenses such as increased transportation costs.
2. Uniform Rate of Taxation — Amendment 74
Amendment 74 established the uniform rate of taxation of twenty-five mills for each school district to be levied on the assessed value of property and to be used solely for the maintenance and operation of the schools. The revenues collected are sent to the State, and the State later distributes the total funds back to the school district.
The twenty-five mills uniform rate of taxation and the net revenues it generates are elements of the formula used to determine the amount of state foundation aid. The report says: “That amount [foundation aid] is computed as ‘the difference between the foundation funding amount [which is set at $5,400 per student multiplied by the average daily membership of the school district for the previous school year] . . . and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus seventy-five percent (75%) of miscellaneous funds of the school district.’ ” See Ark. Code Ann. § 6-20-2305(a)(l) (Supp. 2005).
The 2% difference between 98% and 100% in § 6-20-2305(a)(1) is said to be the cost of collecting the local tax, although, according to testimony before the Masters, that cost can exceed the two percent figure. In addition, the actual collection of local revenues can be lower than 98% of the uniform rate of tax multiplied by the property assessment for the school district.
The uniform rate of taxation is estimated to reflect an increase of $39 million in the 2005-2006 school year from that of the 2004-2005 school year. This potential increase in local revenues results in a corresponding reduction in state foundation aid needed to make up the $5,400 per student.
3. Categorical and Professional Development Funding
a. Alternative Learning Environment (ALE) Funding
Categorical funds are available in addition to the foundation funding for programs like the Alternative Learning Environment for “at risk” students, where the State provides funding of $3,250 multiplied by the number of identified ALE students. There was no increase in funding in this category for the 2005-2006 and 2006-2007 school years.
b. English Language Learners
Act 2283 of 2005 provides that for the school years of 2005-2006 and 2006-2007, funding for the English language learners is $195 for each eligible student. This represents no increase from the 2004-2005 school year. The Masters found that children from non-English speaking homes have greater educational needs than those from English-speaking homes. The. legislative committees made no inquiry to school superintendents about the funding needs for the English language learners prior to or during the 2005 session.
Insufficient funding for this program requires National School Lunch Act revenues to be used to support this program.
c. National School Lunch Act
Additional funding under Act 59 of the Second Extraordinary Session of 2003 for students eligible under the National School Lunch Act was based on the number of students eligible. In 2005, the General Assembly amended Act 59 by Act 2283 and, in doing so, changed the method of counting students who qualified for additional funds. This caused a decrease of $9,542,400 in the money spent on behalf of school-lunch students in the 2005-2006 school year. The funding for NSLA students does not account for any increase or decrease in the average daily number of the students for the current year.
d. Professional Development
Professional development funding supports a coordinated set of planned learning activities for teachers and administrators. This funding was reduced from $50 multiplied by the previous year’s average daily membership (ADM) for school year 2004-2005 to a projected $41.11 multiplied by the previous year’s ADM for school year 2005-2006. The difference in funding may be due to funding provided to the Arkansas Educational Television Network to develop an online professional-development program for teachers.
4. COLA
No cost-of-living adjustment (COLA) was added to the foundation-funding amount of $5,400 per student for the 2005-2006 school year. A COLA had been recommended by personnel at the Department ofEducation and at the Department of Finance and Administration of 1.875%, which would have raised the $5,400 figure by $101 at a cost of $45 million. Though foundation funding did not receive a cost-of-living adjustment, all state employees did receive such an increase, including members of the General Assembly.
Various explanations were given to the Masters at the hearings for the failure to add the COLA for 2005-2006: (1) $35,000,000 was provided for the teacher health-insurance fund; (2) the General Assembly lacked sufficient information that would indicate it was warranted; (3) the COLA money was “[Sjhifted . . . into facilities;” and (4) the General Assembly wanted to see how the $380 million in newly appropriated funds for 2004-2005 for K-12 had been spent.
The General Assembly had $52 million in the General Improvement Fund, from which thirty-five senators were allotted $750,000 each to fund projects of their choosing.
5. Unfunded Mandates
School districts faced new expenses due to acts passed during the 2005 session that were not funded, which were described as “unfunded mandates.” According to James Gilson, Special Assistant to the Executive Director of the Arkansas School Boards Association, increased costs due to these mandates will be $244 per student in the 2005-2006 school year and $215 per student in the 2006-2007 school year. The Masters found that there are increased financial burdens on school districts “from some of the mandates, but, if nothing else, as a result of inflation.” Fuel costs “are going up tremendously” and textbook costs have “skyrocketed.” Again, foundation funding was frozen at $5,400 per student for the 2005-2006 school year; yet the school districts’ financial obligations were increased by the General Assembly.
Examples of unfunded mandates noted by the Masters are annual step increases in salary schedules for certified employees, costs due to the implementation of annual Academic Improvement Plans, increases in minimum teacher salaries in 2006-2007, and a potential increase in contributions to teacher retirement in 2006-2007. The Masters found that there is a “lack of evidence” that the legislature made an informed decision as to whether there was adequate money to address these new costs.
6. Health-Insurance Funding
By Act 2282 of 2005, $35 million in new money was added for the public school employees’ health-insurance program. According to the testimony at the Masters’ hearings, this was to increase the state’s premium subsidy and to keep the health-insurance program from collapsing.
7. Bonded Debt as of January 1, 2005
State funding for repair, renovation, and construction of academic facilities currently occurs through three programs: (1) Debt Service Funding Supplement; (2) General Facilities Funding; and (3) Supplemental Millage Incentive Funding.
According to the first run of 2006 Public School Funding which occurred on July 13, 2005, total funding for the three programs will be reduced by $1,795,985. Thus, although a number of school districts have existing facilities-related bonded debt, state assistance has been “unexpectedly reduced.” It is unclear whether any portion of the 2005-2006 bonded debt assistance/Debt Service Funding Supplement state aid may be restored to any district upon a showing that the debt “is not attributable to the support of non-academic facilities.”
8. Facilities
With respect to facilities, the Masters noted several legislative acts enacted by the General Assembly in 2003 and thereafter:
• Act 1181 of 2003 created the Joint Committee on Educational Facilities to recommend to the General Assembly what was needed to provide adequate and substantially equal educational facilities.
• In June 2003, the Joint Committee created a Task Force on Educational Facilities to assist it. Ten million dollars was appropriated for a statewide facilities assessment. All educational facilities in the state were inspected and assessed.
• On November 30, 2004, the Task Force listed total facility-condition costs at $2,278,200,457. On February 22, 2005, the Task Force filed an addendum to the report showing total facility-condition costs at $1,930,142,412. Priority One for safe, dry, and healthy facilities showed a cost of $205,342,568. No inflation factor was built into these costs.
• The total appropriation for state-assisted facilities funding for the current biennium ending June 30, 2007, is $120 million. This appropriation does not include funds for Enrollment Growth Costs estimated to require anticipated construction costs of $361,769,048 during the five-year 2004-2008 period for 25,761 new students, equating to approximately $72 million a year.
• Act 1327 of2005 created an independent body, the Commission for Arkansas Public School Academic Facilities and Transportation. The Facilities Commission consists of the Director of the Department of Finance and Administration, the President of the Arkansas Development Finance Authority, and the Commissioner of the Department of Education. The Facilities Commission is over the Division of Public School Academic Facilities and Transportation which is to carry out the development and implementation of the Arkansas Public School Academic Facilities Program. The Facilities Commission expires July 1,2007, and, at that time, its oversight powers and responsibilities will be transferred to the State Board of Education.
• Act 2206 of 2005 created the Arkansas Public School Academic Facilities Funding Act which defines the academic facilities wealth index used to determine the percentage of financial participation attributable to the State and school district for facilities projects. If the school district cannot fund its share of the costs for a project, the State will not participate in it. The facilities needs of a school district do not factor into the facilities wealth index formula. This means that despite the facilities needs of some school districts, no state money will be available, in some cases, to meet those needs under the wealth index.
• Act 1426 of2005 is the Arkansas Public School Academic Facility Program Act which was passed to provide constitutionally appropriate public school facilities for every child. Because of the wealth index formula, every school district must bear part or all of its facilities expense. If the school district cannot meet the required contribution, the needed facilities will not be repaired or replaced. There is no legislative provision for the State to pay the entire cost of facility repair or construction, no matter how great the need.
• Act 2206 also established the Academic Facilities Immediate Repair Program for school facilities. The program is considered a one-year program and is designed to correct an immediate hazard to health and safety. Examples of such projects include heat and air systems, floors and roofs, fire alarm systems, or a life-safety code requirement. $20 million was appropriated for fiscal year 2005-2006. No funds were appropriated for the next fiscal year, 2006-2007. One hundred and forty-eight school districts applied for the funds by July 1, 2005, requesting approximately $82 million in funding. If all are approved, the State’s share of the requested projects costs is estimated at $40 million, which is approximately twice the amount of funds appropriated.
• Under Act 2206, the State may transfer funds from the Transitional Academic Facilities Program to the Immediate Repair Program. $50 million was appropriated for this program in fiscal year 2005-2006, but no funds were appropriated for fiscal year 2006-2007. The Transitional Program is primarily for new construction, but the rules for this program will not be developed until December 1, 2005. Thus, school districts must proceed with new construction without knowing whether they qualify for these funds.
• Act 2206 also created the Academic Facilities Partnership Program and $50 million has been appropriated for fiscal year 2006-2007, but no funds have been appropriated for the 2005-2006 fiscal year. This is a continuing program for new construction. The school districts will apply for funds before construction commences and will know the amount of state participation. The State and school district will enter into a partnership agreement, under which the State will have no participation if the school district cannot raise local resources towards the project. School districts wall be notified of the estimated amount of state financial aid for an approved project no later than May 1, 2006.
• Act 1426 of 2005 requires each school district to develop and submit a ten-year disrictwide facilities master plan for review and approval of the Facilities Division by February 1 of each even-numbered year. The plan, due February 1, 2006, shall describe new construction and cost estimates.
• Act 1426 also requires the Facilities Division to develop a comprehensive state master plan for state financial participation in local academic facilities projects.
9. Compliance with Act 57
Act 57 of the Second Extraordinary Session of2003 provides that the General Assembly has a “continuing duty to assess what constitutes an adequate education^] ” Reports shall be filed by the House and Senate Interim Committees on Education with the Speaker of the House and President of the Senate by September 1 of each year before a regular session to comply with this act.
The General Assembly fixed the foundation-funding amount at $5,400 for the 2004-2005 school year. The Masters concluded that Act 57 prescribes a framework for the General Assembly to determine foundation funding for subsequent years, but that “[a]n Act 57 review and report were not performed” before the 2005 regular session.
The Masters further concluded that there was “no evidence that the General Assembly attempted to comply with Act 57 and was thwarted by the lack of information.” At the hearings before the Masters, the State raised a new argument that Act 57 did not apply to the 2005 regular session and that the adequacy study conducted in 2003 met the requirements of Act 57 for the session.
The General Assembly was obligated to ascertain a foundation-funding amount for the 2005-2006 school year, according to the Masters. No hearings were conducted by the interim committees, and the Department of Education was never asked to furnish any information. At the end of the 2005 regular session, the decision was made to freeze the foundation amount at $5,400 for the 2005-2006 school year and to provide a $97 increase for the 2006-2007 school year. There was no testimony to the interim committees that either figure was adequate.
In addition, several problems and concerns with the foundation-funding formula were discovered during the Masters’ hearings, including:
• differences' in actual tax collections at the local level versus property assessments;
• the impact of losing students in a school district on foundation funding and aid;
• the limitations on the designated use of portions of the foundation funding; and
• the impact of unfunded mandates and inflation.
10. Surplus Funds
The actual surplus of state revenues at the end of the 2004-2005 fiscal year, according to the Department of Finance and Administration; was $307,217,154. Of that surplus, $107,800,000 remains in unallocated money. The Department of Finance and Administration forecast for the surplus at the end of the 2005-2006 fiscal year is $98,900,000, and for 2006-2007 is $68,700,000.
The Director of the Department of Finance and Administration estimated the unappropriated surplus in the Educational Adequacy Trust Fund at $49,000,000.
B. Masters’ Conclusions
In the end, the Masters found that the State has not lived up to its promise to make education the State’s first priority. See Act 108 of the Second Extraordinary Session of2003. According to the school superintendents who testified at the hearings before the Masters, this has adversely affected efforts to provide an adequate education to the children of this state. The Masters so found.
The Masters further found that the failure to comply with Act 57 and to increase foundation funding from $5,400 for the 2005-2006 school year was difficult to defend in light of inflation and spending requirements. In addition, they found that the $35 million for teachers’ health-insurance premiums was a “good thing,” but that its effect on education was “indirect at best[.]”
Based on the testimony of the superintendents, the Masters concluded that more funding was necessary so as to avoid the status of “fiscal distress.” With respect to facilities, the Masters concluded that a school district’s financial responsibility was so great for it to enter into a partnership with the State for construction and repairs that many school districts will be unable to raise the required funds and thus will be forced to forego needed construction and repairs. The Masters also concluded that the $120 million appropriated for the biennium for facilities does not “come close to addressing the [S]tate’s public-school facilities needs.”
As a final point, the Masters stressed that adequacy matters have already been sufficiently studied by outside consultants and pointed to the fact that there exist substantial amounts of unallocated surplus funds to meet the state’s educational needs.
II. Court’s Opinion
A. Pending Motions
Two motions have been filed by the Intervenors. The first is a motion to strike the State Defendants’ post-Masters’ Report brief. Specifically, the motion seeks to strike the State’s arguments regarding justiciability and the separation of powers. We deny the motion and discuss the justiciability point raised by the State Defendants below.
The second motion filed by the Intervenors asks this court to take judicial notice of certain items filed in federal district court relating to the Pulaski County desegregation case. We decline to do so.
B. Justiciability
The State Defendants spend much of their time in their post-Masters’ Report brief arguing that this court should reverse its previous holding in this case and rule that the adequacy-of-state-funding issue is a nonjusticiable political question. The State Defendants make this argument despite the fact that this court rejected the same argument in 2002. See Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). At that time, we emphasized that the justiciability point had already been decided in an earlier case, DuPree v. Alma School Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983).
We further emphasized that the Education Article in the Arkansas Constitution speaks in terms of the State maintaining a general, suitable, and efficient system of public schools — not the General Assembly. See Ark. Const, art. 14, § 1. We concluded:
We reject the State’s argument. This court’s refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education. As Justice Hugo Black once sagely advised: “[T]he judiciary was made independent because it has . . . the primary responsibility and duty of giving force and effect to constitutional liberties and limitations upon the executive and legislative branches.” Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960).
Lake View, 351 Ark. at 54, 91 S.W.3d at 484.
Not only do the State Defendants raise an argument already decided in the same case, but they cite many of the same cases previously analyzed and discarded by this court in our 2002 opinion. See, e.g., Ex parte James, 836 So. 2d 813 (Ala. 2002); Marrero v. Commonwealth of Pennsylvania, 559 Pa. 14, 739 A.2d 110 (1999); Coalition for Adequacy & Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 1996); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 672 N.E.2d 1178 (1996); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995). The State now demands that the court replow the same ground. The “new” authority adduced by the State Defendants in support of their argument is composed of two trial court orders from the State of Nebraska, which has different language respecting education in its state constitution. We reject this argument once more as having no merit.
C. Governor Huckabee and the General Assembly
While this court adopts most of the Masters’ Report, we do not do so in toto. At one point in the Report, the Masters make the following comment in connection with the issue of school-district consolidation: “The governor is no longer actively participating in this case.” They further say that the serious inefficiencies which result from having 250 school districts “has been ignored or forgotten by the General Assembly.”
These conclusions are decidedly outside of the scope of the Masters’ charge, and we disassociate ourselves from the statements. While we agree that there are deficiencies in the work done during the 2005 regular session, as discussed below, we view the governor and senators and representatives as dedicated public servants who are striving to meet the educational goals of this state. Indeed, we praised their efforts in 2004 as “laudable.” See Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004).
D. Act 57
We agree with the Masters’ finding that the linchpin for achieving adequacy in public education is the General Assembly’s compliance with Act 57 of the Second Extraordinary Session of 2003. Without a continual assessment of what constitutes an adequate education, without accounting and accountability by the school districts, without an examination of school district expenditures by the House and Senate Interim Committees, and without reports to the Speaker of the House and the President of the Senate by September 1 before each regular session, the General Assembly is “flying blind” with respect to determining what is an adequate foundation-funding level.
A review of the Masters’ Report before us reveals that the General Assembly failed to comply with Act 57 prior to the 2005 regular session. Notably, the Masters concluded that the interim committees made no request to the Department of Education for any information before the 2005 regular session, or even during that session. Thus, vital and pertinent information relating to existing school district revenues, expenditures, and needs was not reviewed. Without that information, the General Assembly could not make an informed funding decision for school years 2005-2006 and 2006-2007. We have no doubt that the decision to freeze the previous year’s figure of $5,400 for purposes of 2005-2006 is a direct result of this lack of information.
Why did the General Assembly not garner the information in compliance with Act 57? Many reasons are given, but irrespective of those reasons, we are convinced of two things. First, that information is now clearly available. Secondly, this court is not willing to place the issue of an adequate education on hold for the current school year and the next and do nothing with respect to foundation and categorical funding levels, which are integral to public school equality and adequacy. To do so would simply be to “write off’ two years of public education in Arkansas, which we refuse to do.
We are aware that by Act 723 of2005, the General Assembly amended Act 57 to allow for the hiring of consultants by the interim committees “to conduct the adequacy review as required under this section.” It is unclear whether Act 723 turns adequacy review totally over to consultants. Be that as it may, any such review for. 2005-2006 and 2006-2007 for purposes of foundation funding has been thwarted by legislative inaction.
Finally, whether a cost-of-living adjustment to the foundation-funding amount is needed is impossible to gauge when there was no compliance with Act 57. We find it troubling, nonetheless, that COLAs were added to the salaries of all state employees, ostensibly to meet the pressures of inflation, while no such adjustment was made to public school funding.
B. Other Deficiencies
We adopt the Masters’ Report as it pertains to findings of other deficiencies directly related to the constitutionality of Arkansas’ school funding system and discuss those deficiencies seriatim:
1. Education needs were not funded first, as required by Act 108 of the Second Extraordinary Session of 2003. Rather, foundation-funding aid, as well as categorical funding, were established based upon what funds were available — not by what was needed. In this regard, inflation and unfunded mandates listed in the Masters’ Report were not specifically addressed by the General Assembly. It seems patently clear to this court that new funds may be necessary to meet some, if not all, of these unfunded mandates.
2. Facilities funding, by all appearances, falls short. Only one half of the needed state funds for the one-year Immediate Repair Program was appropriated (approximately $20 million versus the $40 million needed) to correct deficiencies in facilities that present an immediate hazard to health and safety. While we recognize that transitional funds are available for transfer to the Immediate Repair Program, no funds were appropriated for either the Immediate Repair Program or the Transitional Program for 2006-2007. Priority One facilities construction and repair for safe, dry, and healthy facilities identified by the Task Force on Educational Facilities showed a cost of $205,342,568, where total facilities funding for the current biennium is $120 million. Should the State delay in commencing Priority One construction and repairs, the ultimate cost in terms of deterioration and disrepair will be significant. The Masters went further and underscored that the facilities needs of certain school districts may never be met due to the requirements of the academic facilities wealth index formula which may negate a local partnership.
3. The amount of the State’s foundation aid is based in part on local revenues. The uniform rate of taxation for local revenues is tied to the assessed value of real property within a school district. While ‘actual collection of local revenues may be lower, state foundation aid will not increase. The result is that state foundation aid and local revenues for some school districts may leave school districts with less than $5,400 per student. Such a result runs directly counter to substantial equality and adequacy.
4. The General Assembly froze the categorical funding for 2005-2006 and 2006-2007 for Alternative Learning Environment and English Language Learners. In conjunction with this, because of changes in counting National School Lunch Act qualifying students and decreasing enrollments in some school districts with a high number of NSLA qualifying students, NSLA funding will be reduced. This has a direct impact on remedial and mentoring programs, literacy and math coaches, counselors, school nurses, teachers, and homework hotlines since NSLA funding has been used to support these programs.
5. The Masters found other examples of unintended consequences that further affect the economic stability and adequacy of school districts. They underscored that when a school district loses students, its foundation funding is decreased for the following year though salary costs and personnel costs remain unchanged and are ongoing for the following year. They further alluded to “the seeming impossibility of solving the perpetual inequities of teacher salaries” between poor and wealthy school districts.
F. Conclusions
Just as we decided in 2004, we conclude that we have jurisdiction to recall our mandate and address the motions filed by the Rogers School District. See Lake View Sch. Dist. No. 25 v. Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004).
With respect to the remaining issues addressed by the Masters, we hold that the General Assembly failed to comply with Act 57 and Act 108 in the 2005 regular session and, by doing so, retreated from its prior actions to comply with this court’s directives in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). We further hold that the General Assembly could not have provided adequate funding for the 2005-2006 and 2006-2007 school years as it made no effort to comply with Act 57 and to determine what adequate funding should be. To argue that inaction under Act 57 may equate to adequacy, as the State seems to maintain, does not thread the needle of either logic or reason. In connection with facilities funding, we hold that appropriations for the Immediate Repair Program and Priority One facilities construction and repair for safe, dry, and healthy facilities were grossly underfunded and, thus, inadequate.
To assure an adequate education for the school children of this state and a substantially equal educational opportunity, which the Arkansas Constitution demands, the procedures set forth in Act 57 and Act 108 must be complied with forthwith. Otherwise, a two-year hiatus in educational adequacy will result. As part and parcel of this adequacy analysis, we call upon the General Assembly to address the deficiencies listed above.
While we recognize that failures in the process due to noncompliance with Act 57 and Act 108 are evident, this court does not direct the General Assembly to appropriate a specific increase in foundation or categorized funding amounts, as requested by the Rogers School District. Whether an increase is necessary is for the General Assembly to determine, after its compliance with existing legislation and its assessment of the relevant information necessary for fixing funding levels in the current biennium, including available revenues, surplus funds, and expenditures by the school districts.
Because we hold that the public school-funding system continues to be inadequate, we further hold that our public schools are operating under a constitutional infirmity which must be corrected immediately. We have held in the past that the General Assembly and Department of Education should have time to cure the deficiencies, and we do so again. We stay the issuance of our mandate until December 1, 2006, to allow the necessary time to correct the constitutional deficiencies.
We emphasize once more that it is the State that must provide a general, suitable, and efficient system of public education to the children of this state under the Arkansas Constitution. The roles of the executive and legislative branches are integral to assuring that this transpires. But it is also the duty of this court to assure constitutional compliance when compliance is challenged and to assure that the will of the people of our state as expressed in our constitution is fulfilled. We will perform that duty.
Granted in part. Denied in part.
Motion to Strike State’s Brief denied. Motion to Take Judicial Notice denied.
Glaze, J., and Special Justice Dalby, concur.
Hannah, C.J., and Gunter, J., dissent.
Imber, J., not participating.
The State Defendants include the Governor, State Treasurer, State Auditor, Director of the Department of ^Finance & Administration, President Pro Tempore of the Senate, Speaker of the House of Representatives, Director of the Department of Education, Arkansas Department of Education, and the Arkansas State Board of Education and its members, all in their official capacities.
Of the $5,400 per student calculation, $3,415 was calculated for teacher salaries, and $789 was included for computer hardware and software, instructional materials, supervisory aids, and other matters. The foundation-funding figure of $5,400 also included $1,152 for “carry forward” funding which included money for such things as administrative expenses, athletics, transportation, and non-instructional and technological services.
The allusion to outside consultants is apparently a reference to Act 723 of 2005, which amended Act 57 to allow for the hiring of outside consultants “to conduct the adequacy review1 as required under this section.”
Under the “Purpose” section of Act 57, it is the General Assembly’s responsibility to know how state revenues are being spent and to assess continually “what comprises an adequate education in Arkansas.” The specific duties of the General Assembly outlined in the act include the duty to assess, evaluate, and monitor the entire spectrum of public education across the state and to evaluate the amount of state funds needed based on the cost of educational opportunity and adequacy. The amount of funding shall be based on need and not funds available. The House and Senate Interim Committees on Education are given investigatory authority over all schools and state agencies involved in education and have subpoena power. The two committees must report their findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House no later than September 1 before convening a regular session.
Act 108 creates the Educational Adequacy Fund to fulfill the financial obligation of the State to provide an adequate educational system in conjunction with other resources and accounts available to the Department of Education. In the event these resources are not sufficient to provide an adequate educational system for the state, the additional amount required will be taken from other state funds and fund accounts on a proportionate basis so that the result is a fully-funded system of public education. | [
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Jim Hannah, Chief Justice.
Appellant, Willie Tillman, Jr., appeals the judgment of the Lonoke County Circuit Court convicting him of first-degree murder and sentencing him to a term of life imprisonment. His sole point on appeal is that the circuit court erred in denying his motion for directed verdict because the State’s evidence is not sufficient to sustain his conviction.'We disagree and affirm. Our jurisdiction of this case is pursuant to Ark. Sup. Ct. R. l-2(a)(2), as this is a criminal appeal in which life imprisonment has been imposed.
The victim in this case, Deon Youngblood, was shot and killed on August 29, 2002, while riding in a vehicle with Tillman and Shamane Hendricks. According to Hendricks, he and Tillman believed that Youngblood had been involved in a robbery of cocaine from them in August 2002. Subsequently, Tillman responded to a classified advertisement and purchased a gun. Hendricks testified that Tillman purchased the gun for protection because he did not feel safe after the two were robbed of their cocaine. Hendricks said that about two weeks after the robbery, Tillman said that he was going to kill Youngblood the next time he saw him.
Soon thereafter, Youngblood went for a ride in Tillman’s car with Tillman and Hendricks. At some point during the ride, Youngblood was fatally wounded. Both Tillman and Hendricks testified at trial, and both admitted to firing shots at Youngblood. However, Tillman moved for directed verdict, arguing that the State failed to present substantial evidence that any of the bullets he fired caused the victim’s death. The circuit court denied the motion and, from that ruling, Tillman brings this appeal.
Standard of Review
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Whether the evidence excludes every other hypothesis is left to the jury to decide. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). The credibility of witnesses is an issue for the jury and not the court. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Sufficiency of the Evidence
Tillman challenges the sufficiency of the evidence on the basis that there was insufficient corroboration of accomplice testimony to support his conviction. However, the record reveals that Tillman did not raise this issue in his directed-verdict motion. At the close of the State’s case-in-chief, Tillman made the following motion:
At this time, the defendant would move for a directed verdict, in that, the State has failed to prove each and every element of the charged offense, that Mr. Willie Tillman, Jr., knowingly caused the death of. . . Deon Youngblood. The evidence presented by the state crime lab, the — Dr. Sturner, he could not testify as to the order of the bullets fired, and thereby, not indicating which bullet caused the death of Deon Youngblood. There is testimony that . . . Shamane Hendricks did fire into the body of Deon Young-blood. He could not say — he said it appeared that he shot in the side. There was evidence that one of the bullets through the side penetrated vital organs, and that bullet could have caused the death of Deon Y oungblood. Therefore, the State cannot prove beyond a reasonable doubt that Willie Tillman caused the death of Deon Youngblood.
Tillman renewed the motion at the conclusion of his case-in-chief and, again, at the conclusion of the State’s rebuttal. The circuit court denied the motion in all three instances. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that “[a] motion for directed verdict shall state the specific grounds therefor.” The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice’s testimony, and the failure to challenge the sufficiency of accomplice-corroboration evidence in a directed-verdict motion at trial precludes appellate review on that ground. Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000). Parties are bound by the scope and nature of the objections and arguments made at trial. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). Where an appellant argues on appeal grounds for a directed verdict in addition to the grounds he raised below, the appellate court limits its review to those grounds that were presented to the trial court. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). This is true even in cases where a sentence of life imprisonment is imposed, as it is this court’s duty, pursuant to Ark. Sup. Ct. R. 4-3(h), to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made. Tester, supra (citing Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995)). In the instant case, because counsel for Tillman did not specifically challenge the State’s evidence corroborating Hendricks’s testimony in his directed-verdict motion, his argument is barred. See id.
Tillman further asserts that the circumstantial, forensic evidence relating to the gunshot wounds and bullet holes in his car does not amount to substantial evidence that would allow a jury to conclude that he could have caused the death of Youngblood. Arkansas Code Annotated § 5-10-102 (Repl. 1997) provides, in relevant part, that a person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(2) With a purpose of causing the death of another person, he causes the death of another person; or
(3) He knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed.
The state medical examiner, Dr. William Sturner, testified that Youngblood sustained thirteen gunshot wounds. Two wounds were to the top back of the neck, and the bullets from these wounds were found in the skull and in the brain. Other wounds were to Youngblood’s right jaw, forearm, lower right thorax, lower neck, left back, shoulder, hip, lower back, left upper buttock, and right abdomen. Dr. Sturner testified that the two wounds to the neck, from which the bullets were found in Youngblood’s head, and the wound to the lower right thorax were each fatal in and of themselves. On cross-examination, Dr. Sturner stated that he could not determine the order in which each of the shots was fired. He further testified that he could not determine which shooter fired each of the shots.
Tillman testified that Hendricks fired the initial shots at Youngblood when the three were riding in Tillman’s car. He said that “all of a sudden,” he just “heard gunshots” and “slammed on the brakes.” Tillman said that he then looked in the backseat and saw that Youngblood was not breathing. He stated that he said to Hendricks, “What the fuck are you doing, man?” Then, Tillman said, he stopped the car, put it in park, and got out, and Hendricks got out of the car and told him to get out of the way. He said that Hendricks pulled the seat back and started shooting at Youngblood again. According to Tillman, Hendricks then tapped him on the shoulder with a pistol and said, “We’re in this together. . . It’s over with now. You can’t tell on me because you’re with me.” Tillman said that Hendricks then ordered him to shoot Youngblood. He testified that he was so shocked and so scared, he grabbed the gun, closed his eyes, and shot twice in the backseat.
In contrast, Hendricks testified that while the three were riding in Tillman’s car, Tillman pulled over to use the restroom, got out of the car, retrieved a gun from underneath the driver’s seat, and fired at Youngblood in the backseat. Hendricks related that he saw Youngblood fall out of the car on the driver’s side. Then, according to Hendricks, Tillman said, “You really didn’t believe I was going to do it, did you?” After Tillman pulled Youngblood completely out of the car, he asked Hendricks to take the clip out of the gun because he could not get it out. Hendricks said that he took the clip out and .reloaded the gun for Tillman. Hendricks testified that Tillman then looked at him and said, “Are you going to tell on me?” Hendricks agreed not to tell and then told Tillman to give him the gun. Tillman did so and, upon receiving the gun from Tillman, Hendricks shot Youngblood twice in his “lower stomach” and gave the gun back to Tillman, whereupon, Tillman fired two more shots.
Tillman contends that because Dr. Sturner could not testify as to the order in which each shot was fired or who fired each shot, the evidence is insufficient to prove that he fired any of the fatal shots. Further, Tillman contends that the State produced no evidence showing that the two shots he fired actually hit the victim. Tillman states that even when viewed in a light most favorable to the State, the facts of this case tend to prove little more than the fact that it is possible that his actions caused the death of the victim. Tillman argues that his testimony and the testimony of Hendricks present two equally reasonable conclusions as to which party caused the death of the victim. In short, Tillman contends that the jury was faced with alternative versions as to what caused the death of the victim, and that this merely creates a “suspicion of guilt,” which is insufficient to support a conviction of murder in the first degree.
The State asserts that the jury heard both Tillman and Hendricks give their respective, and significantly different, accounts of what occurred at the time of the shooting, but even Tillman testified that both he and Hendricks fired shots at Young-blood. The State correctly notes that in denying Tillman’s directed-verdict motion, the circuit court ruled that the question of who fired the shots was one of fact for the jury to decide. Further, the State points out that the circuit court instructed the jury, without objection, that Tillman and Hendricks were accomplices as a matter of law.
Here, the jury was presented with testimony from both Tillman and Hendricks concerning what happened at the time of the shooting and, clearly, the two provided conflicting testimony. Still, the State contends that it makes no difference whether Tillman or Hendricks fired the shot that actually caused Youngblood’s death — even assuming that only one of the thirteen shots caused it — because they are each criminally responsible for his death. We agree. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). We hold that the circuit court did not err in denying Tillman’s motion for directed verdict.
Rule 4-3(h)
In compliance with Ark. Sup. Ct. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
Prior to Tillman’s trial, Hendricks pleaded guilty to the first-degree murder of Youngblood and received a term of thirty-five years’ imprisonment in exchange for his testimony at Tillman’s trial. | [
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Per Curiam.
Appellant Roderick Leshun Rankin appeals the July 13, 2004 order of the Jefferson County Circuit Court, whereby he was denied any relief under Ark. R. Crim. P. 37.5 (2005). However, in violation of Ark. Sup. Ct. R. 4-2(a)(8), the notice of appeal is not included in the addendum. Likewise, the petition for post-conviction relief filed pursuant to Rule 37.5, and any amendments thereto, are not included in the addendum. Pursuant to Ark. Sup. Ct. R. 4-2(b)(3), this court finds that the addendum is insufficient, and the appellant is granted fifteen days from the date of the entry of this order within which to file an amended addendum. Dodson v. State, 357 Ark. 646, 187 S.W.3d 854 (2004). Under Ark. R. Sup. Ct. R. 4-2(b)(3), this court may affirm the judgment if an amended addendum is not filed within the fifteen days)
Dickey, J., not participating. | [
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Tom Glaze, Justice.
On November 11, 2004, appellants Steven Velek and David Velek were found guilty of violating Little Rock City Code Section 20-2 in Little Rock District Court. The district court assessed a fine of $500 and imposed an appeal bond of $500 (cash or surety) for each defendant. Both Veleks filed separate notices of appeal on December 10, 2004. However, when the Veleks sought the record of the district court proceedings from the district court clerk, the clerk informed the Veleks that she would not release the record until the $500 appeal bonds were paid. In response, the Veleks filed an affidavit in Pulaski County Circuit Court on December 10, 2004, asserting that the clerk refused to provide the record, and contending that the posting of an appeal bond was not a jurisdictional prerequisite to appeal under District Court Rule 9.
The City of Little Rock then filed a motion to dismiss the Veleks’ appeal, arguing that the circuit court lacked jurisdiction over the appeal because the Veleks had failed to comply with Rule 9’s requirement of filing a certified copy of the lower court proceedings, and that the affidavit the Veleks filed was improper because it did not specifically state that they had requested that the record be prepared and the request had been refused.
On March 22, 2005, the circuit court granted the City’s motion to dismiss the Veleks’ appeal to circuit court. In that order, the circuit court found that the Veleks were each ordered to post a $500 appeal bond before the record of the district court proceedings would be released so that they could perfect their appeal to the circuit court. Further, the circuit court noted that the Veleks had attempted to obtain the record from the district court clerk without paying the appeal bond. The circuit court continued as follows:
When defense counsel was informed that he would be required to post the appeal bond as ordered by the district judge, he proceeded to file an affidavit stating that he was refused by the court clerk below.
The bond set for appeal by the [district court] judge below is a valid fee authorized by law for release of the inferior court record in this matter, which [the Veleks] did not post.
This court does not have jurisdiction over this case, as [the Veleks] have failed to post the required appeal bond with the district court in a timely manner.
As posting an appeal bond in this matter is to be construed as jurisdictional in nature, the appeal is dismissed, and the case remanded to the district court for execution of judgment.
(Emphasis added.) The Veleks filed a timely notice of appeal to this court from the circuit court’s order, and they continue to argue, as they did below, that the posting of an appeal bond is not a jurisdictional prerequisite to perfecting a criminal appeal from district court to circuit court.
This case requires our interpretation of Arkansas District Court Rule 9. In doing so, this court has held that we construe court rules using the same means, including canons of construction, as are used to construe statutes. Barnett v. Howard, 353 Ark. 756, 120 S.W.3d 564 (2003); NCS Healthcare, Ark., Inc. v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2003). We review issues of statutory construction de novo, as it is for us to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).
District Court Rule 9 provides, in relevant part, as follows:
(b) How Taken. An appeal from a district court to the circuit court shall be taken by filing a record of the proceedings had in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit clerk.
(d) Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal to circuit court in a civil case, he shall present to the district court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree, or order of the inferior court. All proceedings in the district court shall be stayed from and after the date of the court’s order approving the supersedeas bond.
(Emphasis added.) Although the rule speaks specifically of “appeal[s] to circuit court in civil cases,” this court has held that Rule 9 provides the appropriate procedure in criminal appeals, as well. See Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 111 S.W.2d 583 (1989) (appeal from conviction for hunting within a closed zone); McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989) (DWI appeal).
In the circuit court, the City of Little Rock argued that the requirement of the payment of an appeal bond was a “fee authorized by law,” pursuant to Rule 9(b), that had to be paid before the clerk could provide the Veleks with the transcript of the district court proceedings. On appeal, the Veleks argue that a “bond” is not the same as a “fee,” and that the trial court erred in concluding that the bond was a jurisdictional prerequisite to appealing.
The plain language of Rule 9 does not require the posting of an appeal bond; indeed, the Reporter’s Notes to Rule 9 comment that the requirement of an appeal bond was abolished with the passage of Rule 9. The Note to Rule 9 provides as follows:
While Rule 9 does not change prior Arkansas law concerning the time for taking an appeal from an inferior court to circuit court, it does change prior procedures for taking an appeal. Section (b) removes the requirement found in superseded Ark. Stat. Ann. § 26-1302 (Repl. 1962) that the appellant file an affidavit that the appeal was not taken for purposes of delay. Also abolished is the requirement found in superseded Ark. Stat. Ann. § 26-1302(3) (Repl. 1962) that a bond be posted as a condition precedent for an appeal. Since such a bond is not required for an appeal from any other court in Arkansas, it was deemed unnecessary under these rules, particularly since appeals from inferior courts are tried de novo.
(Emphasis added.)
The City of Little Rock has failed to mention or address this language from Rule 9 and the Rule’s accompanying Reporter’s Notes. Instead, it asserts that it is “common practice to set an appeal bond,” and that there have been numerous appeals to circuit court in criminal cases in which an appeal bond has been set by the inferior court and satisfied by the appealing party. See Lowe v. State, 300 Ark. 106, 776 S.W.2d 822 (1989); McBride v. State, supra; Baldwin v. State 74 Ark. App. 69, 45 S.W.3d 412 (2001); Worley v. State, 71 Ark. App. 80, 26 S.W.3d 142 (2000); Bass v. State, 9 Ark. App. 211, 657 S.W.2d 218 (1983). However, none of these cases holds that the filing of an appeal bond is a jurisdictional prerequisite for perfecting an appeal from district court to circuit court; rather, they simply point out that, among the other facts of the case, an appeal bond was posted.
It is true that the District Court Rules are mandatory and jurisdictional, and that failure to comply with those rules mandates dismissal of an appeal. See J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001) (requiring strict compliance with Rule 9); Pike Avenue Dev. Co. v. Pulaski County, 343 Ark. 338, 37 S.W.3d 177 (2001); Pace v. Castleberry, 68 Ark. App. 342, 7 S.W.3d 347 (1999) (Rule 9’s thirty-day limit for filing an appeal is both mandatory and jurisdictional, and the failure to either file the record with the clerk or file an affidavit showing the record has been requested from the clerk within those thirty days precludes the circuit court from having jurisdiction over the appeal).
However, nothing in the plain language of Rule 9 requires a party desiring to appeal from district court to circuit court to post an appeal bond before the circuit court will acquire jurisdiction over the appeal. Rather, for the circuit court to acquire jurisdiction, an appellant must file a record of the proceedings in district court within thirty days of the date of the entry of judgment in the district court, see Rule 9(b), or must file an affidavit within that same time showing that he has requested the clerk of the district court to prepare and certify the record and that the clerk has neglected to do so. See Rule 9(c). The filing of a bond under Rule 9(d) is simply not a jurisdictional prerequisite; however, even if it were, a supersedeas bond is not the same thing as an appeal bond. See Gober v. Daniels, 295 Ark. 199, 200-01, 748 S.W.2d 29, 30 (1988) (explaining that there is a “marked difference between the purpose of supersedeas, which is to stay the effect of the judgment, and those bonds which operate to guarantee the appearance of the person”).
In this case, the circuit court found that it “[did] not have jurisdiction over this case, as Defendants have failed to post the required appeal bond with the district court in a timely manner.” In addition, the court found that “posting an appeal bond ... is to be construed as jurisdictional in naturef.]” These conclusions by the trial court were clearly incorrect for the reasons set out above.
This court still must consider, however, whether the Veleks perfected their appeal pursuant to Rule 9. Because they plainly did not file a record of the district court proceedings with the office of the circuit court clerk, in order to have perfected their appeal, they must have filed an affidavit pursuant to Rule 9(c) in which they “show[ed] that [they have] requested the clerk of the district court ... to prepare and certify the records thereof for purposes of appeal and that the clerk . . . has neglected to prepare and certify such records for purposes of appeal.” An affidavit under Rule 9(c) is meant to be used “[w]hen the clerk of the district court . . . neglects or refuses to prepare and certify a record for filing in circuit court.”
The Veleks filed an affidavit on Friday, December 10, 2004, the twenty-ninth day after the date on which the district court entered its judgment. In this affidavit, the Veleks asserted that they delivered to and filed with the Little Rock District Court Clerk, Amanda Robinson, a notice of appeal and designation of record. At that time, Robinson informed the Veleks that the City “has a policy of requiring three business days’ notice before [it] will prepare such a transcript.” Robinson further advised the Veleks that, if the transcript could be prepared by Monday, December 13, 2004 (the deadline for filing an appeal, as the thirtieth day fell on a Saturday), it would be late in the day. In their affidavit, the Veleks asserted that they offered to pay in advance the costs for preparing the transcript, and Robinson informed them that the cost would be $1000, or the $500 bond for each defendant. Robinson referred to this amount as the supersedeas bond the defendants were “required” to post. After the Veleks objected that a supersedeas bond was not required under Rule 9, Robinson told them that she would not provide the transcript until the bonds were paid.
The City of Little Rock asserts that the Veleks failed to file a “proper affidavit stating that the district court clerk neglected or refused to prepare and certify a record for filing in circuit court.” The City relies on Pace v. Castleberry, supra, in support of this contention. However, in Pace, the affidavit stated only the following: “I am the attorney for the Defendant in the above matter. ... I have on this day requested the Municipal Clerk of Bradley County, Arkansas, to prepare and certify the records of the inferior court proceeding herein for appeal. I make this statement pursuant to Arkansas Inferior Court Rule 9.” Pace, 68 Ark. App. at 344. Clearly, in Pace, there was no statement that the clerk had neglected or refused to certify the record. In the present case, however, the affidavit plainly states that Robinson “specifically and expressly informed me that she would not provide me with the necessary transcript required for an appeal unless and until the $500 bond was first paid.” (Emphasis in original.) Although the Veleks did not use the exact words, “the clerk refused to prepare and certify the record,” to require a defendant’s affidavit to quote the Rule’s language exactly in this instance would be to exalt form over substance. See Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004) (rejecting argument that, simply because the word “continuance” was not used by counsel, the court should not consider this period as a delay requested by the defendant for purposes of speedy trial; clearly, a comment that counsel would “probably . . . need more time to prepare” was a request to continue the trial date, and to hold otherwise would be placing form over substance) .
In sum, the Veleks complied with Rule 9(c) by filing an affidavit before the thirtieth day after the date of the district court’s judgment; the trial court erred in dismissing the Veleks’ appeal.
Although criminal appeals from district court to circuit court are presently governed by Rule 9, the Supreme Court Committee on Criminal Practice has proposed the adoption of a new rule to address criminal appeals from district court to circuit court. See In Re: Rules of Criminal Procedure, 362 Ark. Appx. 663 (2005). The committee recommends proposed Rule 36 to serve as a comprehensive procedure governing appeals from limited jurisdiction courts to circuit courts.
Of course, the Reporter’s Notes are not precedent, but this court has held that they may offer some guidance as to a rule’s meaning. See Green v. Mills, 339 Ark. 200, 4 S.W.3d 492 (1999).
A district court has several tools available to it to ensure payment of a fine. Under Ark. Code Ann. § 16-13-702 (Repl. 1999), when a court imposes a fine, it shall inform the defendant that the fine is due immediately. § 16-13-702(a)(2). The court may allow the defendant a period of time to pay the fine, § 16-13-702(a)(3), and if the defendant does not appear and pay the fine as directed at that time, the court may issue an order of arrest. § 16-13-702(a)(4)(A)(i). In addition, a court can imprison a defendant for nonpayment. Ark. CodeAnn. § 16-13-703(a) (Repl. 1999). The court may also authorize the payment ofa fine in installment payments. Ark. CodeAnn. § 16-13-704(a)(l) (Repl. 1999). A defendant may pay a fine by personal check, Ark. Code Ann. § 16-13-705 (Repl. 1999), or by credit card, Ark. CodeAnn. § 16-13-706 (Repl. 1999); if he defaults, the court may collect the fine “by any means authorized for the enforcement of money judgments in civil actions.” Ark. Code Ann. § 16-13-707(a) (Repl. 1999). However,none of these statutes authorize a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. | [
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Betty C. Dickey, Justice.
This appeal arises from an order of the Circuit Court of Sebastian County dismissing ap pellee, David Verdier, from a negligence claim brought by his son, Colby James Verdier, and Colby’s mother, Amanda. Under Arkansas law appellants are not entitled to recover for Colby’s injury due to the doctrine of parental-immunity. Appellants assert that the Arkansas Supreme Court should abrogate in toto the parental-immunity doctrine, or, in the alternative, carve out an exception to allow an unemancipated minor to sue his parents for injuries caused by their negligence. This court has previously considered this issue and held that the doctrine would still be followed in this state, with one specific exception. We decline to abrogate the doctrine ofparental-immunity or to carve out another exception, and we affirm the trial court.
On May 15, 2002, Colby was riding on the back of a lawnmower driven by his father, David. At some point, Colby went inside, where his grandparents were, and was given some candy to share with his little brother, who was still riding on the back of the lawnmower. As Colby walked back toward the lawnmower, he fell down and was run over by the lawnmower. The lawnmower was operated by David at all times, which has led to this appeal.
Appellee filed a motion to dismiss this appeal and the incorporated brief claiming that (1) appellants’ addendum is deficient and does not comply with the provisions of Arkansas Supreme Court Rule 4-2 because it failed to include Defendant’s Reply in Support of the Motion for Summary Judgment, and (2) appellants’ notice of appeal failed to satisfy Rule 3 of the Rules of Appellate Procedure-Civil. Arkansas Supreme Court Rule 4-2(b) clearly states that “[mjotions to dismiss the appeal for insufficiency of the appellants’ abstract or Addendum will not be recognized.” Deficiencies in appellants’ abstract or Addendum are handled by the Court and appellee had the authority to call any deficiencies to the Court’s attention, in addition to the option of supplying a supplemental abstract or Addendum. Ark. Sup. Ct. R. 4-2(b). Appellee also alleged that appellants’ notice of appeal did not designate the judgment, decree, order or part thereof appealed from and the contents of the record on appeal, as required by procedure rules. Ark. R. App. P. - Civ. 3. In an earlier per curium this court ordered re-briefing due to an insufficient record. Verdier v. Verdier, 362 Ark. 660, 210 S.W.3d 123 (2005). While we found, sua sponte, the record to be insufficient, we noted that appellees tacitly consented to the record because they failed to object to the limited appeal and failed to file additional parts that they believed should be included. Id. We said that, in order to adequately review the circuit court’s order of summary judgment, we needed the following items to be included in a certified, supplemental record: (1) the transcript of the hearing on the appellee’s motion for summary judgment; and (2) the briefs in support of both the motion for summary judgment and its response. Id. Although the appellee has now objected to the limited appeal, they failed to do so previously, and the appellants have complied with this court’s previous instructions. Appellee could have supplied the court with a copy of its reply in support of the motion for summary judgment, as this court specifically instructed that “the parties may include any other information they consider material to the appeal.” Id. There was a clerical error in appellants’ notice of appeal; appellants’ referred to certain proceedings, and an order, that were actually dated August 15, 2003, as being dated May 15, 2003. However, this court recognized that mistake and recognized that appellee had sufficient notice, in the appellants’ notice of appeal, that the subject matter on appeal would concern David Verdier’s dismissal. The motion to dismiss is denied for the reasons stated above.
We now address the merits, and our analysis begins by explaining the appropriate standard of review. Appellants are essentially asking this court to reverse the trial court’s decision to grant the motion for summary judgment on behalf of David Verdier, Colby’s father. We have stated our standard of review for a summary judgment in Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003):
[S]ummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.
The parental-immunity doctrine was first established in Arkansas by this court in 1938. Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938). We held that “an unemancipated minor may not maintain an action for an involuntary tort against his parent.” Rambo, 195 Ark. at 837, 114 S.W.2d at 470. Therefore, under current law, appellant’s claim would be barred because his father negligently, as opposed to intentionally, caused his injuries. However, this court did announce its intention, in Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999), to reexamine the parental-immunity doctrine at the next appropriate opportunity. In 2002 an appropriate opportunity arose to thoroughly re-examine the parental-immunity doctrine. Fields v. Southern Farm Bureau Casualty Ins. Co., 350 Ark. 75, 87 S.W.3d 224 (2002). In Fields, a child was injured in an accident caused by the negligent driving of his mother. The father, on behalf of his child, brought a direct action lawsuit against his motor vehicle liability insurance company for payment of benefits under the uninsured motorist provision of his policy; however, the insurance company contended that because the child was not legally entitled to collect damages from his mother, the uninsured motorist, then it was not obligated to pay for the child’s injuries under the policy. Id. This court examined the status of the parental-immunity doctrine in other states and found that eight states applied the doctrine even in cases where the automobile liability insurance coverage represents the financial source; eleven states abrogated the doctrine altogether; four states and the District of Colombia never adopted the doctrine; twenty-one states abrogated the doctrine in cases where negligent operation of a motor vehicle occurs and liability insurance is involved; and three states had other tests in determining liability when automobile negligence is involved. Id. The final conclusion of this court was not to abrogate the doctrine, in toto, but to establish that an “exception to the parental-immunity doctrine is warranted when a direct-action suit against a motor vehicle liability insurance carrier for uninsured motorist coverage is at issue and when insurance benefits are the damages requested.” Id at 88. However, we also specifically noted that “the exception we carve[d] out by [that] opinion is limited to those circumstances. In all other matters, where exceptions have not been made in our case law, we retain the doctrine.” Id.
Since this court will not abrogate the doctrine, appellant urges this court to carve out yet an additional exception to the doctrine to allow an injured child to sue a negligent parent for the limits in an existing homeowner’s insurance policy, claiming that this exception would be ‘identical’ to the exception allowing lawsuits in cases involving motor vehicle insurance. However, children are often hurt in the home place, as it is where they spend the majority of their time and where there are inherent risks. Broadening the exception to the parental-immunity doctrine to cases where a parent is covered by liability insurance through an existing homeowner’s policy leads to a dangerous slippery slope. In Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986), a case involving the parental-immunity doctrine, Justice Smith, in his concurring opinion, noted a good argument to prevent a complete rejection of the doctrine:
For activities central to [the parent-child] relationship, particularly within the home itself, there is some relaxation of the stricter standard of conduct applied in dealing with third persons. A child thoughdessly leaves his skates in a hallway and the parent trips over them or slides on them and falls, or a parent delays fixing a slightly broken step or calling a carpenter to do it and the child falls as a result; these occurrences are normally regarded as commonplace incidents in family life and usually treated as accidents rather than the basis for imposing legal liability.
Carpenter v. Bishop, supra, (quoting from Restatement (Second) of Torts § 895G cmt. k (1979)). In addition, automobile insurance differs from homeowner’s insurance as there is no requirement by the state that the latter type of insurance be maintained. It is likely that many households in Arkansas are not protected by homeowner’s insurance; therefore, if this exception to the doctrine is created, the result would be to create separate benefits and burdens for those who are insured than from those who are not. Finally, our analysis in Fields, supra, notes that the states who have carved out an exception to the parental-immunity doctrine, have only made the specific exception when there has been negligent operation of a motor vehicle where liability insurance is involved. The current law in Arkansas shall remain the same as it has since our analysis in Fields. Therefore appellant’s claim is barred because his father negligently caused his injuries, and the limited exception does not apply. We affirm the trial court’s decision to grant the motion for summary judgment on behalf of David Verdier, Colby’s father.
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M. MICHAEL KINARD, Judge
|Jn this trade-secrets case, appellant Gibraltar Lubricating Services, Inc. (GLS), appeals from a summary judgment in favor of appellee Pinnacle Resources, Inc. (Pinnacle). Because genuine issues of material fact remain to be decided, we reverse and remand for further proceedings.
Our standard of review is well established. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Akers v. Butler, 2015 Ark. App. 650, 476 S.W.3d 183. On appeal, we view the evidence in the' light most favorable to the party against whom the-motion was filed, resolving all doubts and inferences against the moving party. Id. With this standard in mind, we turn to the evidence presented by the parties in their affidavits and other documents filed "in connection with the summary-judgment motion.
|aI. Facts
GLS provides lubricants to industriál customers who use large compressors. The lubricants contain a blend of oils and additives that inhibit rust and corrosion and reduce the foaming generated by compressor churning. GLS hires outside contractors to blend its lubricants based on precise formulas.
The formulas at issue in this case were developed more than thirty-five years ago by a man named Glen Majors, owner of C.E.S. Associates, Inc. In 1991, Mr. Majors formed GLS with James and Linda Bass and purchased C.E.S.’s assets, including its formulas and blending instructions, for $38,500. In 1993, Mr. and Mrs. Bass bought out Majors and became the sole owners of GLS. They operated from an' office in Beebe, Arkansas, with one employee, Veronica Craven. The company produced the same lubricants using the same trusted blenders as in the past. Mr. Bass kept the formulas locked in a cabinet or safe, to which Mrs. Bass and Ms. Craven had access.
In 2008, Pinnacle, a custom blending company, contacted Mr. Bass with hopes of becoming a blender for GLS. During a meeting at the Beebe office, Bass explained to Pinnacle’s salesman, John Be-thel, that he was nervous about disclosing the lubricant formulas. Bethel assured Bass that Pinnacle would maintain the formulas’ secrecy.
Thereafter, Mr. Bass provided Pinnacle with documents containing a particular lubricant formula. One of the documents bore a stamp prohibiting copying or duplicating of its contents. Bass also sent Be-thel an email, asking him to “please keep a tight grip on the 1-¡formulas,” to which Bethel replied, “Absolutely.” Several months later, Bass wrote the following to Bethel:
I know we have talked about it before, do you have our formulas in a safe place, it would be terrible if [certain other companies] got hold of them some way. That has always concerned me and is the reason we have been so careful on ■who got our formula.
Bethel responded that the formulas were “in a very safe place” and were “kept in locked secured areas at night.”
Pinnacle eventually began blending GLS lubricants, and was asked to blend a synthetic lubricant that had been blended for GLS by another company. At some point, GLS’s largest customer, Kinder Morgan, became interested in the synthetic product. Pinnacle offered to be the blender, but Pinnacle insisted that, for quality-control purposes, it would have to be the sole supplier to the Kinder Morgan facility. GLS rejected this exclusive arrangement; and the two companies stopped doing business together.
Thereafter, Pinnacle developed and marketed a new synthetic lubricant, which Kinder Morgan allegedly put into use. GLS subsequently lost Kinder Morgan as a customer.
In 2012, GLS sued Pinnacle in White County Circuit Court for misappropriation of trade secrets. The complaint alleged that Pinnacle had improperly used GLS’s formulas in developing the new lubricant and that Pinnacle was selling the new lubricant to GLS’s established customers. Pinnacle denied using the GLS formulas and denied that the formulas constituted trade secrets. <
| ¿II. Summary Judgment
Pinnacle moved for summary judgment on the ground that GLS’s formulas did not meet the definition of a trade secret contained in Arkansas Code Annotated section 4-75-601(4) (Repl. 2011). That statute defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts. that are reasonable under the circumstances to maintain its secrecy. ,
(Emphasis added.) Pinnacle contended that, because the GLS formulas were “generally known” and “readily ascertainable,” they were not trade secrets. In support of its argument, it submitted the affidavit of Dr. David Wooten, an analytical chemist with expertise in tribology, the science of friction; lubrication, and wear.
Dr. Wooten described the GLS formulas as, “simple,- unsophisticated lubricants,” whose ingredients were “readily detectable by widely available laboratory testing protocols.” He said that the formulas’ ingredients could be identified.by performing two hours of testing on each lubricant, plus another six hours to ascertain the ingredients’ relative' weights, all at a- cost of $3,000 to $4,500 per lubricant. Wooten stated that the testing would involve “reverse engineering” of the GLS formulas— a process of starting with a known product and working backward to find the method by which it was developed.
Dr. Wooten also offered his opinion that GLS’s formulas were generally known in the lubrication industry. Attached to his affidavit were over 100 pages of articles, book excerpts, Land advertisements that discussed numerous ingredients capable of achieving rust protection, corrosion protection, defoaming, and other attributes touted by GLS in its lubricants. According to Dr. Wooten, the ingredients mentioned in those publications were the same as those used by GLS. Dr. Wooten additionally described certain lubricating-oil patents, which he said contained the same ingredients, within the same weight ranges, as the GLS lubricants.
In response, GLS submitted' the affidavit of a chemist, John Cicoria. Mr. Cicoria characterized GLS’s formulas as “unique” and “not easily ascertainable.” He detailed a five-step process for reverse engineering a GLS lubricant, -which would require “many hours, if not days or weeks to ‘replicate the sample formula provided to the chemist” and would cost much more than Dr; Wooten had estimated.
GLS additionally provided affidavits from James Bass, Linda Bass, and Veronica Craven. Mr. Bass stated that, “since 1991, the identity of the [GLS] additive package and the proper mixture was kept highly confidential.” He said that the formula for the additive package was never discussed with customers or seminar/trade-show attendees and had only been disclosed to. a few, trusted, blenders. He also said that the formulas were not readily ascertainable and, to his knowledge, had never been reverse engineered by others. Mrs., Bass and Ms. Craven echoed that the formulas were not generally discussed and were kept secret.
Following a hearing, the circuit court granted summary- judgment in favor of Pinnacle. In doing so,, the court cited Dr. Wooten’s “great credibility based ,on the specificity of his conclusions, his background, and his area of . expertise.” The court particularly noted that Dr. Wooten’s affidavit, unlike Mr. Cicoria’s, contained the actual cost that would be [(¡incurred— $3,500 to $4,000 — in reverse engineering each GLS lubricant.' Relying on those figures, the court found that the- cost of reverse engineering was “so small” that the GLS formulas were readily ascertainable and, therefore, not trade secrets. GLS appeals the summary-judgment order.
III. Arguments on Appeal
GLS argues that the summary-judgment order should be reversed because the circuit court engaged in improper credibility - determinations. We agree for the following reasons.
The question of whether information meets the definition of a trade secret is fact intensive. Bradshaw v. Alpha Packaging, Inc., 2010 Ark. App. 659, 379 S.W.3d 536. Here, the central issue before the court was whether the 'GLS formulas were readily ascertainable, such that they did not qualify as trade secrets. Relative to this issue, the-.circuit court received affidavits from two expert witnesses, each of whom offered an opinion on the matter, with the focus ¡being the expense and difficulty involved in -reverse engineering the GLS lubricants. Dr. Wooten regarded the GLS formulas as simple compositions that' could be reverse engineered in a matter of hours for a specific price. Mr. Cicoria referred to the formulas as unique, and- he explained the time-consuming process that would be involved in- reverse engineering them.- The court resolved this issue by favoring the conclusions drawn by Pinnacle’s expert, Dr. Wooten, based on Dr. Wooten’s “great credibility.” Summary judgment should not be granted if it is necessary to weigh the credibility of statements to resolve an issue. See Turner v. Northwest Arkansas Neurosurgery Clinic, 84 Ark. App. 93, 133 S.W.3d 417 (2003); Adams v. Wolf, 73 Ark. App. 347, 43 S.W.3d 757 (2001). We can-notjjhelp but conclude that the circuit court placed significant weight on Dr. Wooten’s credibility in this instance. Summary judgment was therefore improperly granted.
We likewise agree with GLS that the circuit court made improper factual findings in granting summary judgment to Pinnacle. Factual findings are not appropriate at the summary-judgment stage. See Po-Boy Land Co., Inc. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d 555. In this case, the court not only found that Dr. Wooten was the more credible expert but also found that his estimated cost to reverse engineer each GLS lubricant was so small that.the lubricant formulas could be deemed readily ascertainable. Reasonable minds could differ as to whether a price of $3,500 to $4,000 per lubricant was small enough to render the formulas readily ascertainable. Thus, summary judgment was improper for this reason as well.
Pinnacle argues that Mr. Cicoria’s opposing affidavit was not specific enough to call Dr. Wooten’s conclusions into question. On the contrary, Cicoria detailed the process, the number of steps, and the length of time it would take to reverse engineer a GLS lubricant. After stating these matters, he opined that the cost of reverse engineering would be much higher than Dr. Wooten had predicted. This is not a case of Mr. Cicoria’s affidavit being entirely conclusory. See Swindle v. Lumbermens Mutual Casualty Co., 315 Ark. 415, 869 S.W.2d 681 (1993) (recognizing that a party cannot create a fact question by submitting a conclusory affidavit).
Pinnacle also claims that the mere fact that the GLS formulas were capable of being reverse engineered made them generally known to, and readily ascertainable by, third persons. ^However, a formula or product may maintain its status as a trade secret, even though it can be reverse engineered, if the process of reverse engineering is too difficult or costly. See Restatement (Third) Unfair Competition § 39 cmt. f (1995); AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp., 663 F.3d 966 (8th Cir.2011). As stated above, a fact question remains as to the cost or difficulty of reverse engineering the GLS formulas.
Pinnacle additionally points to the publications and patents attached to Dr. Wooten’s affidavit as evidence that the ingredients in GLS’s formulas were generally known. However, none of those items purport to contain the actual GLS formulas. Even where information about a product or its ingredients is publicly available, such as through a patent, it may be the combination of characteristics and components that offers a competitive advantage. See Restatement (Third) Unfair Competition § 39 cmt. f; Minnesota Mining & Manufacturing Co. v. Pribyl, 259 F.3d 587 (7th Cir.2001). Here, Mr. Bass stated that the GLS lubricants have had years of proven success in the industry and that he considers the composition and formulation of GLS’s additive package to be a trade secret.
Finally, Pinnacle asks that we affirm the grant of summary judgment on alternative grounds not expressed in the circuit court’s order, i.e., that GLS did not engage in reasonable efforts to protect the secrecy of its formulas, and that GLS did not offer proof of the money or effort it had ¿xpend-' ed to develop its formulas. See Ark.Code Ann. § 4 — 75—601(4)(B); Saforo & Associates, Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). Without belaboring the point, we decline to uphold the summary judgment on these grounds, given |nthe factual questions involved. As with the other issues discussed herein, they are better suited to resolution in trial.
Reversed and remanded.
Whiteaker and Hixson, JJ., agree.
. GLS also sued Pinnacle for breach of contract and conversion. Those counts were dismissed by the circuit court and are not relevant to this appeal. | [
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M. MICHAEL KINARD, Judge
h Robert Draft appeals from his conviction of second-degree murder, for which he was sentenced to thirty years’ imprisonment plus a fifteen-year enhancement, due to his use of a firearm in committing the offense, to be served consecutively. He contends that the evidence is insufficient to support the finding of guilt. We affirm.
On May 18, 2014, appellant became angry at his wife and beat her badly both with his hands and with the butt of a shotgun. She managed to escape and drove approximately 200 yards up a gravel driveway to her parents’ home. Mrs. Draft’s mother then drove Mrs. Draft to th'e hospital emergency room. Mrs. Draft’s father, Douglas Cloyes, remained at his home. Appellant then drove his truck, with a loaded .223-caliber semi-automatic rifle, to the Cloyeses’ home. Mr. Cloyes was standing near the gravel driveway, and appellant parked his truck in the grass between Mr. Cloyes and the house. According to appellant, Mr. Cloyes began shooting at him. Appellant testified that he then reached back into his truck, 1 ¡^grabbed his rifle, and began firing at Mr. Cloyes. Mr. Cloyes was hit by five rounds from appellant’s rifle and died as a result. Appellant returned to his home, gathered some money and a telephone, disassembled the rifle and threw it in a river, and drove to Michigan. A .22-caliber pistol was found under Mr. Cloyes’s body, and three spent .22 cartridges were found nearby. At least thirteen spent ,223 cartridges were found approximately sixty-five feet from the body, at the site of truck-tire tracks in Mr. Cloyes’s yard.
Appellant was charged with first-degree murder in the death of his father-in-law and second-degree battery in the beating of his wife. After a jury trial, he was convicted of the lesser-included offense of second-degree murder and second-degree battery. As to second-degree murder, appellant moved for a directed verdict of acquittal on the following grounds: “[T]he State has failed again to provide any evidence that [appellant] caused the death of Mr. Cloyes and, if they did so, they did not prove that [appellant] did so knowingly.” The motion was denied both at the close of the State’s case and again at the close of all of the evidence.
On appeal, appellant challenges only the murder conviction, arguing that the trial court erred in denying his motion for a directed verdict of acquittal. He has abandoned the argument that he did not kill Mr. Cloyes. However, he continues to argue that there is no substantial evidence to support the finding that he “knowingly” caused the death.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. Where sufficiency is challenged on appeal from a criminal conviction, we consider only that proof that supports the verdict. Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Id. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring resort to speculation or conjecture. Id. While it is true that circumstantial evidence is insufficient if it leaves the jury solely to speculation and conjecture, the fact that evidence is circumstantial does not necessai'ily render it insubstantial. Simpkins v. State, 2010 Ark. App. 723, 2010 WL 4345687. Circumstantial evidence is sufficient if it excludes every other reasonable hypothesis consistent with innocence. Id. Whether the circumstantial evidence excludes every reasonable hypothesis consistent with innocence is for the fact-finder to decide; on review, we must determine whether, the fact-finder had to resort to speculation and conjecture to reach its decision. Davis, supra. The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court on a directed-verdict motion or this court on appeal. Simpkins, supra.
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Repl. 2013). A person acts “knowingly” with respect to his conduct when he is aware that it is practically certain that his conduct will cause the result. ArkCode Ann. § 5-2-202(2)(B) (Repl. 2013). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be | ¿inferred from the circumstances of the crime. Satterfield v. State, 2014 Ark. App. 633, 448 S.W.3d 211. Such circumstances can include the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. Id. Conduct of the accused following the crime, such as flight or concealment or destruction of evidence, is also relevant and properly considered as evidence of consciousness of guilt. Id. Moreover, because of the difficulty in ascertaining one’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id.
Here, appellant admitted at trial that he had beaten his wife. He then drove his truck, containing a loaded rifle, the short distance to his in-laws’ home. During a confrontation with his father-in-law, appellant took the rifle and shot it at his father-in-law from a distance of approximately sixty-five feet. Appellant admitted that he pulled the trigger at least thirteen times. He does not dispute that five of those shots hit the victim and caused his death. Thereafter, appellant returned to his house, gathered some money and his phone, and fled to Michigan, taking the rifle apart and throwing it in a river along the way. We conclude that this evidence is more than adequate to support the jury’s finding that appellant knowingly caused the victim’s death.
To the extent that appellant argues that the evidence is insufficient to negate the conclusion that he acted in self-defense, we do not address the issue because it was not preserved for appeal. In order to preserve for appeal any argument pertaining to the sufficiency of the evidence to support a jury verdict in a criminal case, the defendant must make a specific motion for a directed verdict of acquittal at the close of the evidence [ ^presented by the prosecution and again at the close of all of the evidence. Ark. R.Crim. P. 38.1(a) & (c). The motion must advise the trial court of the exact element that the defendant contends the State has failed to prove. Rodriguez-Gonzalez v. State, 2014 Ark. App. 208, 2014 WL 1327870. The failure to make the challenge at the times and in the manner required by the rule will constitute a waiver of any question pertaining to the sufficiency of the evidence. Ark. R.Crim. P. 33.1(c).
In general, a statutory justification is a defense to conduct that would otherwise constitute an offense. See, e.g., Ark.Code Ann. §§ 5-4-602; -603(a); - 604(a); -605 (Repl. 2013). Arkansas Code Annotated section 5-2-607(a) (Repl. 2013) provides that the use of deadly physical force in defense of a person is justified in certain circumstances. Justification becomes a defense when any evidence tending to support its existence is offered to support it. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). By statute, a justification, such as self-defense, is considered an element of the offense and, once raised, must be disproved by the prosecution beyond a reasonable doubt. Id., Metcalf v. State, 2011 Ark. App. 55, 2011 WL 240723.
Here, at the close of the State’s case, appellant made the following motion for a directed verdict as to the homicide charge:
At this time, the defense would move for a directed verdict dealing with the murder in the first [degree]_ [W]e believe the State has failed to provide substantial evidence ... that [appellant] caused the death of Mr. Cloyes. Even if they have proven that, they have not shown that he did so with the purpose of causing his death.... [W]ith regard to ... murder in the second, the lesser, we would move and argue that the State has failed again to provide any evidence that [appellant] caused the death of Mr. Cloyes and, if they did so, they did not prove that he did so knowingly....
Appellant’s motion followed this same pattern for the additional lesser-ineluded offenses of | (¡manslaughter and negligent homicide. At the close of all of the evidence, appellant “renew[ed]’’ his earlier motions for directed verdict “as if I had restated them all verbatim right here.” At no time did appellant argue self-defense as justification for his actions as part of his directed-verdiet motions. Therefore, any challenge to the sufficiency of the evidence to negate the defense of self-defense was not preserved for appeal. Lee v. State, 2010 Ark. App. 15, 2010 WL 26391.
Affirmed.
Virden and Harrison, JJ., agree. | [
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WAYMOND M. BROWN, Judge
[,Appellant appeals from the circuit court’s final decree of adoption in which it granted the appellees’ petition to adopt appellant’s son, G.N., born 8/21/08; and terminated appellant’s parental rights to G.N. On appeal, appellant argues that the circuit court erred in finding that (1) there was clear and convincing evidence that his consent to adoption was not required pursuant to Arkansas Code Annotated section 9-9-207; and (2) it was in G.N.’s best interest for his adoption to be granted over appellant’s objection. We affirm.
Appellant was arrested for attempted capital murder and kidnapping on July 31, 2009. Mary Claressa Davis (Claressa) and her husband, Jeffrey Craig Davis (Jeff) took in G.N. after appellant’s arrest. The Davises filed a petition for appointment as guardians of G.N. on | ¡August 27, 2009. Appellant filed a consent to the Davises’ guardianship on September 11, 2009. Appellant’s consent to the Davises’ guardianship of G.N. was noted in the circuit court’s October 27, 2009 order granting the Davises’ petition for guardianship. Appellant pled guilty to the alleged offenses and was sentenced to forty years’ imprisonment in the Arkansas Department of Correction (ADC) in an order entered on June 22,2010.
The court entered an amended order appointing appellees as successor guardians to G.N. on June 19, 2013. Appellees filed their petition for adoption of G.N. on May 21, 2014. Appellant filed his response objecting to appellees’ assertion that his consent was not required and denying his consent. A hearing on appellees’ adoption petition was held on February 10, 2015. At the hearing, testimony was as follows.
• Keith Leathers, assistant chief financial •officer for the ADC, testified that between December 2, 2010, and February 5, 2015, appellant had received deposits in his account of over $13,000.00; had spent $4,658.48 of that amount on materials to make crafts; and had spent $8,959.72 of that- amount on items from the canteen. He stated that appellant was permitted to have checks issued from his account pursuant to a request and approval process. He thought the process was “fairly easy” and noted that appellant was able to get checks approved for numerous leather companies to buy craft materials. He knew of no prohibition on sending money to family members.
Sky Tapp, a licensed social worker hired by appellees to do a home study, testified that she conducted adult maltreatment checks, child maltreatment checks, Arkansas State Police background checks, and driving record checks on appellees; she found that neither | ¡¡was listed on any registry or had any criminal history. Her walkthrough of appellees’ home revealed no concerns. She observed a “great bond between the children” and a “very close bond” between G.N. and appellees. She found appellees’ home to be “suitable” for adopting G.N.
Appellee Lisa Hankins testified that she had been a babysitter for G.N., with him spending “two days one week and three the next week” with her for “approximately a year” before he came to live with her and her husband in December of 2012. When she was G.N.’s babysitter, he was living with the Davises, who had guardianship of him after appellant was incarcerated. G.N. had been with the Davises since he was eleven months old. Due to the Davises’ financial difficulties, appellees ended up with G.N.
Lisa stated that G.N. had not had any visits or phone calls with appellant since moving in with her in December 2012, though she acknowledged that appellant had sent sixteen letters to G.N. up through April 2014. She stated that G.N. had a “meltdown immediately,” “crying hysterically,” during the one visit he had with his “paternal great-grandmother.” Appellant had not provided any financial support to G.N. Lisa and her husband have a “close relationship” with G.N., being a “very close family” in which her children and G.N. are “very close, very protective” of one another.
4Lisa stated that G.N. went through counseling once appellees obtained guardianship over him due to his “struggles with permanency and the ins and outs” of his living arrangements and relationships. She opined that G.N. does not understand permaneney and thinks that when a person leaves, “that’s it; they’re gone.” He “doesn’t understand when someone leaves they will come back.” Otherwise, G.N. has no medical problems. It was her understanding that the attorney ad litem and therapist were supposed to determine if contact between G.N. and appellant was to be permitted. Appellees intended not to allow communication between G.N. and appellant unless the attorney ad litem or therapists instructed them to do so. The attorney ad litem and therapist “never” recommended contact between G.N. and appellant. She stated that “if the adoption petition is not granted, nothing is going to change in [G.N.’s] life at this moment.”
Appellee James Hankins testified that “even before” G.N. moved in with them, the appellees’ relationship with him was “very similar to what it is today” as G.N. spent “some weekends” with appellees. Since December 2012, appellees have provided all financial support for G.N. James testified that if the adoption was not granted, he thought “everything changes” for G.N., who would be "still stuck in limbo.” He reiterated G.N.’s need for permanency in light of G.N.’s belief that when people leave, they “leave forever.” He stated that this — people' leaving — was G.N.’s experience, having been in three homes in six years. He agreed with Lisa’s testimony that he and Lisa had received no calls from appellant; that appellant had sent approximately sixteen letters since December 2012; that appellant’ had | ¿provided no financial support to G.N.;, arid that the attorney ad litem was to determine wheth er contact between G.N. and appellant was permissible.
Appellant testified that he had eight in-person visits with G.N. from April 10, 2011, to November 20, 2012, due to the Davises bringing G.N. -to the prison. He began writing letters monthly in 2013; .all the letters were sent certified mail. He stated that he had to forward a phone visitation form to persons he wished to call, to be completed and returned by the potential visitor so they could be added to the his call list; he - never stated whether he sent the form to appellees. He admitted that over $13,000.00 had come into his account from his mother and stated that he was able to write checks, having been getting them for “about a year and a half.” He stated that he used $4,658.00 to purchase leather and stain to do leatherwork, which he does as a hobby and sells for “maybe five, ten, $20.00[.]” All the money in his account came from his mom as he was not able to earn money through the work-release program because he was not eligible for the program due to the crimes for which he was convicted. He received six dollars per year from the state. He would pay support to G.N. if the adoption was denied.
Appellant stated that Claressa told him she could no longer care for G.N. because it was a “financial struggle for her.” He admitted contemplating putting G.N. in a foster home and admitted that he did not send her any money, though he averred that it was because he did not have any money at that time. He stated that he was not aware that he could write checks for child support, thinking he had to have a court order “until here recently.” He admitted that he “was getting money deposited to his inmate bank account that [he] could have used for care and support of [G.N.,] though he did not. He denied that the court told Rhim that there was nothing that prevented him from financially supporting G.N. that he remembered, though he remembered receiving the order in which the same was expressly stated.
Appellant testified that he was sentenced to forty years’ imprisonment, but that he was eligible for parole January 9, 2020. He admitted that there' was . “a chance” that he could remain incarcerated until after G.N. reached majority. He thought it was “good that [G.N. had] a family that he’s bonded with that can provide for him emotionally, financially, and give him stability” and stated that he wanted G.N. to be happy, but he wanted to be able to see his son. He had “considered that it might be traumatic” to G.N. for him to “just reappear someday and try to get back in his life after he’s formed a relationship and a bond with the new family.” He testified that he did not know appellees had G.N. until the guardianship hearing on the motion to substitute guardians; he did not agree to the substitution. He remembered it being said in court that G.N. could not come and visit him and he “figured that that meant that they was [sic] gonna [sic] have to let the therapist and .[the attorney ad litem] decide.” Though he “could have obtained this information[,]” appellant admitted that he did not contact the attorney ad litem. Finally, he testified that he is a “better person now[,]” having participated in and completed a list of “self-improvement” activities, including anger management, life skills, thinking errors,'and. substance abuse education.
Claressa testified that appellees obtained G.N. due to the1 Davises’ financial difficulties that included them losing their home in December 2012 to foreclosure. G.N. would spend “one or two days a week” with appellees prior to the foreclosure, and James had always said |7to the Davises “[y]ou need to just let us take care of [G.N.,] so they gave G.N. to appellees. Appellant “was aware of [the Davises’] financial situation” as she had told him that the Davises’ home was in foreclosure. Appellant, knowing nothing about the appel-lees, suggested putting G.N. in a group home “until [appellant] could get out.” Claressa stated that appellant never provided her support because “[h]e couldn’t” because “[h]e was incarcerated.” She denied that it would surprise her that he had significant deposits of over $13,000.00 in his account between 2010 and 2015.
Claressa stated that after appellees obtained guardianship over G.N., they would not answer or return her phone calls and the time she was able to see G.N. became “very limited.” She said Lisa told her that G.N.’s therapist advised the appellees not to allow G.N. to see the Davises. She admitted that “adoption was discussed pri- or to the guardianship.” She thought it would be “okay” for appellees to adopt G.N., so long as she, her husband, and G.N.’s biological family “would all still be a part of [G.N.’s] life.” Though she had not observed the relationship in a while, she testified that she had “observed a close bond and relationship” between appellees and G.N. She had never requested that G.N. be returned to her care.
Appellant’s mother, Ruth Newkirk, testified that though she had a good relationship with G.N. prior to the appellees’ guardianship, and tried to maintain it, she was not able to maintain the relationship after appellees obtained guardianship over G.N. She was not able 18to establish contact with G.N. Though she had previously sought guardianship, she admitted that she was not able to care for G.N. in 2009 or 2012.
The circuit court entered its final decree of adoption on April 16, 2015, granting appellees’ petition to adopt G.N. and terminating appellant’s parental rights. It found that appellant’s consent to adoption was not necessary pursuant to Arkansas Code Annotated section 9-9-207(a)(2) because he had “willfully failed to pay child support for the minor child in excess of one year[.]” It found that adoption by appellees was in G.N.’s best interest. This timely appeal followed.
We review adoption proceedings de novo on the record. Adoption statutes are strictly construed and a person wishing to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. A circuit court’s finding that consent is unnecessary due to a failure to support or communicate with the child will not be reversed unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. In cases involving minor ^children, the trial court must utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interest. Because the appellate court has no such opportunity, the superi- or position, ability, and opportunity of the trial court to observe the parties are afforded their greatest weight in cases involving minor children.
Consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree. It is' not required that a parent fail “totally” in these obligations in order to fail “significantly” within the meaning of the statutes. It denotes a failure that is meaningful or important. Justifiable cause means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse.
| mWhen reviewing a finding that consent is not required pursuant to Arkansas Code Annotated section 9-9-207(a)(2), “we must inquire whether the parent has utilized those resources at his or her command ... in continuing a close relationship with the child.” There is a heavy burden placed upon the party seeking to adopt a child, without the consent of a natural parent, to prove the failure to communicate or the failure to support by clear and convincing evidence.
I. Consent to Adoption
Appellant’s first argument is that the circuit court erred in finding that there was clear and convincing evidence that his consent to adoption was not required pursuant to Arkansas Code Annotated section 9-9-207. Specifically, he argues that the circuit court could not find that his consent was not necessary due to failure to support for a one-year period, where he was not required to pay child support by order of the circuit court and his failure to pay was due to his incarceration. He notes that “[a] noncustodial parent whose obligation to provide support is being supervised by such a court order [deciding one’s duty to pay child support] cannot be said to have any ‘duty* to provide beyond that imposed by the court.” He analogizes his case to that of Neel v. Harrison in which this court found that a court order |nthat did not require child support payments was a justifiable excuse for not supporting the party’s child.
In Neel, the circuit court had permitted adoption of Neel’s daughter by her stepmother, who was three years’ estranged from Neel’s ex-husband, her daughter’s father, .at the-time of the adoption. The circuit court had previously entered an agreed order in Neel’s divorce from her ex-husband in which the ex-husband was awarded physical custody, but the order was silent as to an award' of child support and the ex-husband did not ask for child support from Neel. The order’s silence meant that Neel was not ordered by the circuit court to pay child support. However, despite having limited finances, Neel had attempted to give the child gifts; her ex-husband and his wife refused the gifts. This court found that Neel’s failure to provide support was not without justification.
This case is distinguishable from Neel. Neel had not been specifically ordered not to pay child support, but also had not been expressly told to pay child support. In the case before us, the circuit court’s October 27, 2009 order of guardianship, granting guardianship to the Davises, was silent on any requirement to pay child support. However, in its amended order appointing successor guardians of the person and the estate of G.N., entered on June 19, 2013, the circuit court stated the following:
The Court declines to order child support based on the testimony of Tiffany Fields that she continues to be unable to provide financial support for the minor children. Nothing prevents either David Newkirk or Tiffany Fields from voluntarily providing financial support for the children as they are able. .
| ipThis shows that despite not being ordered to pay child support, appellant was expressly advised by the circuit court that he was not prohibited from providing support and could therefore provide support at any time, unlike in Neel. Accordingly, any reliance on the order by appellant would necessitate an understanding ‘ that he could provide support to G.N. Appellant knew that G.Ñ.’s mother was not ordered to provide support. He knew the Davises were financially strapped to the point of advising him that they could no longer take care of G.N., yet he forwarded no support. He knew G.N. had new guardians, yet he failed to provide any support. We agree with the circuit court that appellant willfully failed to provide any support to G.N., noting that his failure was voluntary, and therefore, unjustifiable.
Appellant argues that appellees’ refusal to accept his correspondence to his son supports- finding that his failure to support was with a justifiable excuse. This argument conflates the two separate bases for not requiring consent found in Arkansas Code Annotated section 9-9-207(a)(2). That section states that consent to adoption is not required if for a period of at least one year, the parent has failed significantly without justifiable cause to communicate with the child, or provide for the care and support of the child as required by law or judicial decree. The appellees’ failure to forward appellant’s letters to his son has nothing to do with appellant’s failure to support his son.
This court notes that in Neel, the circuit court noted Neel’s attempts to give gifts to her daughter, but found that they were “token gifts” and “were not enough because failure 11shad to be,-not totally, but significantly” and Neel’s support was “lacking.” This court formd that finding to be clearly erroneous. In our case, appellant never even attempted to provide support to G.N. This was despite having more than $13,000.00 deposited into his inmate banking account. - The duty to support is not excused on the basis of other people’s conduct unless such conduct prevents the performance of the duty of support. The appellees’ failure to forward appellant’s letters to. G.N. did not prevent him from attempting to send support to G.N. Rather than send any to G.N., he spent, the overwhelming majority of the money on himself. Additionally, appellant sold leatherwprk for. additional, albeit minimal, income., Because appellant was specifically advised by the court that he could provide support to G.N.,. despite not being ordered to pay child support, and. he spent a substantial amount of money on himself, rather than provide any support at all on G.N., the circuit court did not err in finding that he failed to support G.N. without a justifiable excuse. Therefore, the circuit court did not err in finding that appellant’s consent to G.N.’s adoption was not necessary.
II. Best Interests
Appellant’s second argument - is that the circuit court' erred in finding that it was in G.N.’s best interest for his adoption to be granted over appellant’s objection.. Specifically, |uhe argues that because no detriment would have come to G.N. if he had not been adopted since appellees were already his guardians, granting appellees’ petition to adopt was not necessary and therefore was not in G.N.’s best interests. We disagree.
Before -.an adoption petition can ;be granted, the circuit court must find from clear and convincing evidence that the adoption is-, in the best interest of the child. We review the evidence de novo. We will not reverse a circuit court’s decision regarding the best interest of a child to be adopted.unless it is clearly.against the preponderance of the evidence; giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witnesses. We give great weight to a circuit court’s personal observations when the welfare of young children is involved. The mere fact that a parent has forfeited her right to have her consent to an adoption required does not mean that the adoption must be granted; the court must further find from clear and convincing evidence that the adoption is in the best interest of the child. The burden rests on the one seeking adoption to prove |1f;by clear and convincing evidence that adoption is in the child’s best interest. The ultimate determination of best interest is the primary objective of the trial court in custody matters.
Parental rights are not proprietary ones and are subject to the performance of duties and obligations of a parent to care for and support a child, and the law only protects the rights of parents so long as the parent discharges these duties. The preference for natural parents should not be continued beyond the point where these duties and obligations have been ignored or shifted to others.
The evidence presented with respect to the appellees’ relationship with G.N. was all positive, showing that they had stepped up and fulfilled every role that appellant either could not or would not perform in the past and cannot or will not perform currently. This is in contrast to the following evidence regarding all other relationships in G.N.’s life. G.N.’s mother had altogether disappeared from his life. Appellant had been incarcerated since G.N. was eleven months old. In his short life, specifically the first five years, G.N. had lived with appellant, the Davises, and the appellees. . His movement between homes had caused him to struggle with permanency and the idea that someone will return after they leave. His last 11Bvisit with his paternal great-grandmother resulted in G.N. having an immediate meltdown. He had had no interaction with appellant, appellant’s family, or the Davises, for a number of years and was doing fine. While appellant is eligible for parole in January 2020, it is not guaranteed that he will be granted parole at that time, and he therefore could be incarcerated long after that time, even after G.N. reaches majority, as appellant admitted in his testimony. The Davises have not sought guardianship of G.N. and, while Ruth sought guardianship before, a review of the record before this court shows that she was not seeking guardianship at the hearing on appellees’ petition to adopt G.N. as she had only filed a motion to establish visitation on March 31, 2014. In any case, it is not ■ clear whether Ruth had the ability to care for G.N. on the record before us; but we note her testimony that she was not able to care for G.N. in 2009 when appellant was initially imprisoned nor in 2012 when the appellees took G.N. from the Davises.
Appellant is not asking that another guardian be found for G.N. on account of any alleged harm that might occur with appellees; only that his current guardians — the appellees — not be allowed to adopt him, so that appellant and his family’s relationship with G.N. can continue. In commenting on the effect of an adoption, we have said that it is “unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child[.]” Appellant is essentially asking this court to do what theJjjcircuit court rightfully would not do — to place his and his relatives’ want of a relationship with G.N. over G.N.’s need for a stable and permanent home. Based on our review, and giving due deference to the superior position of the circuit court to make that determination, we cannot conclude that its finding that adoption by appellees was in G.N.’s best interest was clearly erroneous.
We further note that appellant cites Henderson v. Callis for the proposition, as argued by appellant, that there is no clear and convincing evidence that adoption should be granted “[s]ince the minor child’s condition of life would not have changed in that he would have continued to be in the custody of Appellees.” This analysis is incorrect. Henderson stands for the proposition that incarceration of a parent, in and of itself, is not conclusive on the issue of termination of rights and does not require that the parent be deemed unfit simply because he is incarcerated. Appellant does not argue that the adoption petition was granted on this basis; therefore, Henderson is not on point in this case.
Affirmed.
ViRden and Hixson, JJ., agree.
. The parental rights of G.N.’s mother, Tiffany Fields, were also terminated in the same order; however, Fields is not a party to this appeal.
. They also took in G.N.'s sister, R.N. When G.N. was subsequently taken in by appellees, R.N. was taken in by other relatives. Therefore, the outcome of her placement is not subject of this appeal.
.She also searched the maltreatment registries for appellees' other two children, one who was in college and the other who lived in the home at the time, and found no issues.
. Because this is the only mention of a paternal grandmother, this court is not sure if Lisa is actually referring to Ruth Newkirk, appellant’s mother, who is G.N.’s grandmother, not his great-grandmother.
. This became evident when the appellees' eldest daughter went off to college; ’ G.N. thought she was not coming back.
. Ruth sought guardianship via a petition for intervention and change of custody on March 1,2013.
. Gordon v. Draper, 2013 Ark. App. 352, at 3, 428 S.W.3d 543, 544 (citing Yerby v. Yerby, 2013 Ark. App. 25, 2013 WL 245460).
. Courtney v. Ward, 2012 Ark. App. 148, at 14, 391 S.W.3d 686, 694 (citing In re A.R., 103 Ark. App. 1, 3-4, 285 S.W.3d 716, 717-18 (2008)).
. Id.
. Id.
. Gordon, supra.
. Id.
. Courtney v. Ward, 2012 Ark. App. 148, at 14, 391 S.W.3d 686, 694 (citing Ark.Code Ann. § 9-9-207(a)(2)(i) & (ii) (Repl.2009)).
. Fox v. Nagle, 2011 Ark. App. 178, at 4, 381 S.W.3d 900, 902 (citing Neel v. Harrison, 93 Ark. App. 424, 220 S.W.3d 251 (2005)).
. Id. (citing Neel v. Harrison, 93 Ark. App. 424, 220 S.W.3d 251; Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979)).
. Courtney, 2012 Ark. App. 148, at 14-15, 391 S.W.3d 686, 694-95.
. Reid v. Frazee, 72 Ark. App. 474, 480, 41 S.W.3d 397, 401 (2001) (citing In the Matter of the Adoption of Titsworth, 11 Ark. App. 197, 201, 669 S.W.2d 8, 10 (1984) (quoting Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976)); Ark. Code Ann. § 9-9-207(a)(2) (Repl.1993)).
. Racine v. Nelson, 2011 Ark. 50, at 11, 378 S.W.3d 93, 100 (citing Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979)).
. See In re Adoption of Glover, 288 Ark. 59, 702 S.W,2d 12 (1986) (citing In re C.J.U., 660 P.2d 237 (Utah 1983)).
. 93 Ark. App. 424, 220 S.W.3d 251 (2005).
.The order .specifically states that appellant declined to testify. Accordingly, the circuit court had no testimony regarding appellant's ability to provide support.
. Courtney v. Ward, 2012 Ark. App. 148, at 14, 391 S.W.3d 686, 694 (citing Ark.Code Ann. § 9-9-207(a)(2) (Repl.2009) (emphasis added)).
. Neel, 93 Ark. App.. 424, 427, 220 S.W.3d 251, 253.
. The summary of appellant’s inmate banking activity shows that from December 2, 2010, to February 5,- 2015, appellant received the following deposits into his account totaling $13,985.00: a $30 Christmas deposit; $2,310.00 in money order deposits; and $11,645.00 in direct deposits.
. In re Adoption of A.M.C., 368 Ark. 369, 378, 246 S.W.3d 426, 432 (2007).
. In re Adoption of K.M., 2015 Ark. App. 448, at 3, 469 S.W.3d 388, 390 (citing Mode v. Ark. Dep’t of Human Servs., 2015 Ark. App. 69, 2015 WL 585537; In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513),
. Wilson v. Golen, 2013 Ark. App. 267, at 8, 427 S.W.3d 723, 727.
. Id.
. Sanders v. Savage, 2015 Ark. App. 461, at 9, 468 S.W.3d 795, 801 (citing Racine v. Nelson, 2011 Ark. 50, at 17, 378 S.W.3d 93, 103).
. Hollis v. Hollis, 2015 Ark. App. 441, at 7, 468 S.W.3d 316, 320 (citing Waldrip v. Davis, 40 Ark. App. 25, 26, 842 S.W.2d 49, 50 (1992)).
. Wilson, 2013 Ark. App, 267, at 7, 427 S.W.3d at 727 (citing Luebker v. Ark. Dep’t of Human Servs., 93 Ark. App. 173, 217 S.W.3d 172 (2005)).
. Luebker v. Arkansas Dep’t of Human Servs., 93 Ark. App. 173, 177, 217 S.W.3d 172, 175 (2005) (citing Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988)).
. Apel v. Cummings, 76 Ark. App. 93, 98, 61 S.W.3d 214, 218 (2001) (citing Manuel, 24 Ark. App. at 98-99, 749 S.W.2d 341).
. Id. (citing Manuel, 24 Ark. App. at 99, 749 S.W.2d 341) (citing Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark.App.1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979)).
. Scudder v. Ramsey, 2013 Ark. 115, at 9, 426 S.W.3d 427, 433 (citing Wilson v. Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981); Poe v. Case, 263 Ark. 488, 565 S.W.2d 612(1978)).
. 97 Ark. App. 163, 245 S.W.3d 174 (2006). | [
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M. MICHAEL KINARD, Judge
hOn July 30, 2015, the Department of Human Services (DHS) took an emergency hold on three of appellee Toronto Walker’s children: C.W., age fifteen; L.R.1, age eleven; and L.R.2, age ten. DHS filed a petition for ex parte emergency custody and dependency-neglect based on abuse, neglect, and parental unfitness as to the juveniles or their , sibling. An ex parte order for emergency custody was entered, followed by a probable cause order. After the adjudication hearing, the trial court adjudicated only C.W. dependent-neglected and closed the. case as to L.R.1 and L.R.2. DHS now appeals the order of the trial court denying its petition to adjudicate L.R.l and L.R.2 dependent-neglected. We reverse and remand.
^Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark.Code Ann. § 9-27-327(a)(l)(A) (Repl. 2015). Dependency-neglect allegations must be proven by a preponderance of the evidence. Ark.Code Ann. § 9-27-325(h)(2)(B). We will not reverse the circuit court’s findings unless they are clearly erroneous. Turner v. Arkansas Department of Human Services, 2014 Ark. App. 655, 2014 WL 6485655. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Id.
Arkansas Code Annotated section 9-27-303(18)(A) defines a dependent-neglected juvenile as any juvenile who is at substantial risk of serious harm as a result of, among other things, abuse of the juvenile or a sibling. The definition of abuse includes any nonaccidental physical injury; intentionally or knowingly striking a child with a closed fist when physical injury occurs; and intentionally or knowingly interfering with a child’s breathing with or without physical injury. Ark.Code Ann. § 9-27-303(3)(A)(v)-(vii).
Abuse shall not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child. Ark.Code Ann. § 9-27-303(3)(C)(i). Reasonable and moderate physical discipline shall not include any act that is likely to cause and that does cause injury more serious than transient pain or minor temporary marks. Ark.Code Ann, § 9 — 27—303(3)(C)(iii). The age, size, and condition of the child and the location of the injury and the frequency or ^recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate. Ark. Code Ann. § 9-27-303(3)(C)(iv).
This case originated when police were called to an assault that had just occurred on July 29, 2015. Little Rock Police Officer Mark Ison testified that both C.W. and Walker told him that they had argued because Walker believed C.W. was cooking too many burritos in the toaster oven. C.W. told Ison that Walker had hit him in the head and hands with a cookie sheet. Walker claimed that she hit C.W. with the cookie sheet because he hit her in the chest with his hand. Ison observed a small cut above one of C.W.’s eyes and a nick on one of his hands; he did not see any marks on Walker. Walker was charged with domestic battery in the third degree.
C.W. told Ison that Walker had abused him and his siblings for years. C.W. said that Walker beat him with an extension cord, and he showed Ison older scars, including one in a loop shape caused by Walker doubling the cord over. Ison also spoke with C.W.’s adult brother, Damon-teago Barnum, who told Ison that Walker had choked L.R.l and L.R.2. Ison said that he spoke with L.R.1 and L.R.2 based on what he had been told about the “lifetime of abuse.” When he spoke with L.R.l and L.R.2 on the front porch of their home, they looked at the ground and refused to make eye contact; however, Walker was inside and the door was cracked open. Later at the police station, Ison spoke with L.R.l and L.R.2 separately, and they both told him that they had been choked by Walker before.
Kristie Henderson, a DHS investigator, spoke with the children on July 80. C.W. told her that, in addition to hitting him with the cookie sheet, Walker had also punched him Lwith a closed fist in the head and the stomach. Henderson observed a bruise near C.W.’s temple and scratches in the center of his chest, as well as older bruising on his arm. Henderson observed loop-shaped bruising on the backs of both L.R.l and L.R.2, and the children told her that the injuries were caused by Walker. Pictures of the children’s injuries were admitted into evidence.
Walker admitted to Henderson that she had whipped the. children- with an extension cord. Walker told her that the goal was to hit them on their bottoms, but they may have been hit on their backs because they did not stay still. DHS had several prior contacts with the family. A protective-services case was opened in December 2008 after an allegation that C.W.. had cuts, welts, and bruises. Other reports to the child-abuse hotline in July 2012 and June 2015 alleged that Walker had physically abused the children, but these allegations were deemed unsubstantiated.
C.W. testified that during the assault, Walker hit him with the cookie sheet several times and hit him in the head.with a closed fist. He. denied hitting her or doing anything that would have caused her to hit him. C.W. said that he had witnessed Walker abuse L.R.1 and L.R.2 and that the abuse occurred almost every day. He said that Walker hit them with a closed fist and an extension cord.
The trial court adjudicated C.W. dependent-neglected upon finding that he was at substantial risk of serious'harm as a result of physical abuse by Walker. The court found that there was no proof that L.R.l and L.R.2 were at risk of harm, stating that there was no evidence of recent injuries as the loop marks on their backs were old. The order closed the |Bcase as to L.R.l and L.R.2.
DHS argues that L.R.l and L.R.2 were at substantial risk of serious harm as a result of both Walker’s abuse of C.W. and Walker’s .abuse of L.R.1 and L.R.2 themselves. We agree. Even when only one. child has signs of physical abuse, the statute is clear that a juvenile can be at risk of serious-harm,-and thus dependent-neglected,-based on an act of abuse inflicted on the juvenile’s sibling. Turner v. Arkansas Department of Human Services, 2014 Ark. App. 655, 2014 WL 6485655; see also Arkansas Department of Human Services v. McDonald, 80 Ark. App. 104, 91 S.W.3d 536 (2002); Brewer v. Arkansas Department of Human Services, 71 Ark. App. 364, 43 S.W.3d 196 (2001). Here, not only was there evidence of abuse of L.R.l and L.R.2’s sibling that placed them at risk of harm, but there was also evidence that they had been abused themselves.
The testimony at the adjudication hearing established that Walker admitted to hitting C.W. with a cookie sheet, admitted to whipping the children with an extension cord, and admitted that the extension cord hit their backs. All of the children had loop-shaped injuries that the trial court recognized were from being hit with the extension cord. Pictures showed that both L.R.1 and L.R.2 had several of these injuries on their backs. Furthermore, L.R.l and L.R.2 both told a police officer that their mother had choked them. The children’s adult brother told police the same thing. C.W. testified that Walker had consistently abused him and his siblings for years, including hitting them with her fists.
Although the trial court discounted the children’s loop-shaped injuries because they were “old,” their existence is proof that the bounds of reasonable and moderate discipline-1 swere exceeded because the whippings caused more than minor temporary marks. Even if they were old, the loop-shaped injuries demonstrated that the children were at substantial risk of similar harm in the future. In Turner, supra, this court affirmed the adjudication of-six siblings as dependent-neglected based on the evidence that one child had welts on her back after being whipped with a belt. Taking into consideration all of the evidence of abuse, we are left with a definite and firm conviction that a mistake has been made. The trial court’s finding that L.R.l and L.R.2 were- not dependent-neglected is clearly erroneous. Accordingly, we reverse and remand.
Reversed and remanded.
Glover and Hoofman, JJ., agree.
. Appellee Levar Rounsville is the father of L.R.l and L.R.2. The father of C.W. was not a party in this case. | [
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ROBERT J. GLADWIN, Chief Judge
| James England appeals his conviction of rape and incest, arguing that the Pulaski County Circuit Court committed reversible error by permitting the State to introduce testimony arid evidence of his alleged suicide attempt. We affirm.
I. Facts
England was charged by felony information on December 19, 2012, with rape and two counts of incest based on the allegations of his two stepdaughters. It was alleged that these acts occurred between January 1, 2009, and August 31, 2011, during which time one stepdaughter was under the age of eighteen. On May 4, 2015, England filed a motion-in-limine seeking, among other things, a prohibition on the State from introducing any testimony regarding a photograph of him with what appeared to be a noose around his neck, the photograph itself, and any evidence of suicidal ideations or attempts by him.
Un response to the motion, the State argued that it expected to present testimony that England was manipulative and controlling. England’s stepdaughter, Samantha Barnes, was expected to testify that England had texted her the picture of himself with a noose around his neck and that England said that he intended to kill himself after she moved.out of his residence. .The State argued that this was relevant because each victim had delayed in reporting the sexual activities that took place because of the threats, manipulation, and intimidation by England.
At the pretrial hearing on England’s motion, the trial court ruled that the photograph of England with the noose around his neck was inadmissible unless the defense “opens the door.” However, any of the statements that England had made to the victims were “fair game.”
Lindsay Bean, bom January 4, 1992, testified at trial that England was her stepfather, her mother, Peggy Stane, married England when she was six years old, and they had divorced in January 2015. She said that during the time her 'mother was married to England, he was like a father to her and her siblings Kelly Lovell, Samantha Barnes-, and Brent England, who was the only biological child of England and Peggy. She said that England was the disciplinarian and controlled what she did at school and on weekends. She said that when she turned seventeen, she traveled with him in his semi-trailer to haul cows out of town. She testified as follows:
At that time we were in the sleeper and he got on top of me, and he tried to do things with me and I said no. I asked him to get off me, and he stopped. We got in the cab of the truck. We started driving again, I don’t know how long after that but we stopped again on the same day and he laid down. We laid down again and he |3got on top of me. And that’s when he pushed my panties aside and he penetrated me. It wasn’t very long, and he got up, and I didn’t really realize what was happening until I felt blood putting my clothes back on.
Lindsay testified that she had sexual intercourse with England about 400 times. She said that if she did not do what he asked, he would be in a bad mood. She stated that there were a lot of times “we didn’t say no.” so she did not know what he would have done if she had refused him, but she claimed that it was just the thought of what he would do or how he would act that propelled her to allow it.
Peggy Stane testified that she had been married to England, and her daughters were his victims. She testified about England’s work history and said that the girls “went on the road with him” when he drove his truck, sometimes together and sometimes individually. Peggy said that Lindsay told her that England had been having sex with her but that she did not want to believe it. She asked Samantha if anything ever happened between her and England, and Samantha denied it at first, but she later told Peggy that it had happened. Peggy said that, at the girls’ request, she did not contact police. She said that when she finally confronted England, he denied it, but then said, “It wasn’t my fault. They initiated it.” She stated that England had a temper and that he became very controlling and then fervently abusive during their marriage. She claimed that he had threatened to commit suicide more than once.
Samantha testified that she was born on August 22,1985, and that her mother Peggy had been married to England. She said that England was the disciplinarian and had set the rules. She said that England treated her as a wife, and the sexual relationship between them started in-2001 just after she turned sixteen, and that it continued until August 2011. She |4said that she was the caretaker for England’s mother, who moved in with them in 2007 and died in 2010. Therefore, during 2009 and 2010, Samantha primarily took care of England’s mother. She said that during this time, while everyone else was at work or school, she and England would have intercourse.
Samantha explained that she got a job at the OK Corral Western Store and that England would be jealous of any male attention she received from customers. In October 2011, she was invited to the movies by her coworkers. She called England to ask if she could go, and he told her that she had to bring home the car she had driven to work. She said that she dropped it off and left again with her friend without telling England. While she was in the movie, England “bl[ew] up her phone,” and demanded to know where she was. He told her that he was going to beat her when she left the movie. She went home with her friend that night and never went back to England’s house to live. She stated that England asked her to come back home and that he had threatened to kill himself and everyone in her family.
Debbie Keathley testified that she owned the store where Samantha worked. Keathley stated,
The day she told me he was coming to the store, he confessed to me on the phone about an improper relationship with Sam[antha]. He had called the store several times that day. Earlier that day -is when he had told her he was coming in. She wouldn’t answer her cellphone or the store phone. So he finally called so many times that other employees were answering it till I got on the phone. For whatever reason, he would tell me about it. That they had more than a father-daughter relationship. I told him that if he was telling me this to shame Sam[antha], he was only making himself look bad. He started going into this story about how she owed him. I told him it sounded like he bought the mobile home more for his | ^convenience than hers. He got mad and threatened to come and take care of all of us.
Cleo England, Danny Lawson, and Kenny Munn each testified that they had never witnessed anything inappropriate between England and Samantha or England and Lindsay. Dr. Kevin Claybrook testified that England was his urology patient. He explained that England had erectile dysfunction, and he had treated England for prostate cancer. He said that England had surgery in June 2010 and that he had a fairly rocky post-op course with lots of chronic pain, problems with depression, and fairly significant problems with a diminishment of sexual desire and erections. He opined that the amount of sex that had been alleged in this case seemed inconsistent with England’s complaints. He said that in order to have sex as many times as was testified to, England’s libido would have to have been significant, and his problems had been with low libido, low testosterone, and erectile dysfunction.
England. testified regarding his work history and his life with Peggy and their children. He denied ever having touched Samantha or Lindsay. On cross-examination, England denied threatening to hang himself with an electrical cord, and he denied texting a photograph to Samantha after he threatened to hang himself. No objection was made when- the State elicited this testimony from England.
Samantha was called by the State as a rebuttal witness, and England’s attorney objected, stating,
Your Honor, we’re gonna, we’re gonna object to this rebuttal witness. I’m assuming this is about the photograph, and, again, I’d like to renew my objections that the | ^photograph is not in any way, or form, or fashion reliable. There’s no, there’s no' time date. There’s no, anything about it. I mean, we just have a picture of him.
The trial court allowed the State to lay a foundation for the picture through the witness, and Samantha testified that shortly after she left home in October 2011, England had contacted her and threatened to commit suicide and said that he could not live without her. He texted her a picture of a cord or rope from a tree or deer stand that was fastened around his neck. She emailed it to herself, saving it to her computer. The photograph was identified and admitted into evidence over England’s objection. England then testified, denying that he was trying to kill himself that day. He said that he took the picture and sent it to his wife, not Samantha.
The jury found England guilty on all counts and sentenced him to concurrent terms of imprisonment in the Arkansas Department of Correction — fifteen years on the rape charge and ten years on each incest charge. This appeal timely followed.
II. Applicable Law
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Conte v. State, 2015 Ark. 220, at 26, 463 S.W.3d 686, 702.
This court rejects the admission of inflammatory evidence where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. See Camargo v. State, 327 Ark. 631, 637-38, 940 S.W.2d 464, 467 (1997) (holding that we require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value); see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. 17Evidence is admissible if it tends to shed light on any issue, to corroborate testimony, or if it is essential in proving a necessary element of a case, is useful to enable a witness to testify more effectively, or enable the jury to better1 understand testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).
Id., 2015 Ark. 220, at 34, 463 S.W.3d at 706.
III. Admissibility of Evidence
England argues that the trial court committed reversible error by permitting the State to introduce testimony and evidence of his alleged suicide attempt. He contends that the testimony concerning the suicide attempt had limited, if any, probative value in a case where the issue was whether he had sexually abused his stepdaughters. He claims that there was an enormous risk of unfair prejudice based on the alleged suicide attempt. Ark. R. Evid. 403 (2015). He contends that courts in other jurisdictions have looked at the issue of whether suicide attempts are admissible and claims that, largely, their decisions rest on whether there truly was a suicide attempt and whether -there was evidence that the suicide attempt was in response to the charge or investigation, citing Kien v. State, 782 N.E.2d 398 (Ind.App.Ct.2003); State v. Mann, 132 N.J. 410, 625 A.2d 1102 (1993); Pettie v. State, 316 Md. 509, 560 A.2d 577 (1989); and State v. Coudotte, 7 N.D. 109, 72 N.W. 913 (1897). England argues that, similar to the cases cited, the alleged suicide attempt here was not a real one. He contends that there was no confirmation that he had actually attempted suicide. More importantly, he claims that there was no connection between the alleged suicide attempt and any sexual relationship he had with his stepdaughters. He asserts that the alleged attempt was prior to any investigation or charge. Thus, he claims that the inherent risk of unfair prejudice substantially outweighed the probative value of the evidence.
|sThe State maintains that England’s argument has no merit, and this court agrees. The testimony that was elicited from Peggy, Lindsay, and Samantha evidenced how much control and manipulation England had over their lives and included repeated threats to kill himself in order to get them to behave in ways that he wanted. Samantha testified that he had texted her a picture of himself with an electrical cord wrapped around his neck and that he had said that he was going to end it because he could not live without her. As further argued by the State, the evidence was introduced, not to show his unwillingness to endure prosecution, but to show the level of control and manipulation his victims faced. Further, the photograph and testimony of his hanging attempt were introduced by the State through its rebuttal witness after England, on cross-examination, without objection, denied attempting suicide and sending the picture. England’s objection to the introduction of the photograph was not that the picture’s admission was violative of the circuit court’s order in limine, but the objection was related only to the reliability of the photograph. Pursuant to the objection, the circuit court properly required that a foundation be laid, and the State complied.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. E.g., Laswell v. State, 2012 Ark. 201, at 17, 404 S.W.3d 818, 828. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g., Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). In addition, we will not reverse a ruling on the admission of evidence absent a showing of prejudice. E.g., Davis v. State, 350 Ark. 22, 38, 86 S.W.3d 872, 882 q
Maiden v. State, 2014 Ark. 294, at 4, 438 S.W.3d 263, 268. In light of the circuit pcourt’s ruling on England’s motion in' li-mine, we hold that there was no abuse of discretion in admitting the evidence.
Affirmed.
Harrison and Whiteaker, JJ., agree. | [
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Per Curiam.
We previously granted the Motion for Rule on Clerk and remanded the matter to the trial court to make findings of fact on the issue of attorney error. From the findings of fact presented, it is clear that the error here soundly rests on Sandra Trotter Phillips. It is the responsibility of the trial counsel to perfect the appeal. This responsibility cannot be handed off to any other. The issue of attorney error is referred to the Committee on Professional Conduct. | [
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Annabelle Clinton Imber, Justice.
Appellant Jim McDonald was charged with and pled guilty to rape of his minor daughter, S.M., and in accordance with ajury’s verdict, he was sentenced to a term of life in prison. McDonald’s counsel on appeal has filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1), asserting there is no merit to any arguments arising from the circuit court’s rulings that were adverse to his client. In response, McDonald has filed a pro se brief alleging points of error. As McDonald was sentenced to life in prison, our jurisdiction is appropriate under Ark. Sup. Ct. R. 1-2(a) (2) (2005). We agree that there is no merit to this appeal and grant the motion to withdraw.
At the sentencing stage of the trial, numerous witnesses testified to the alleged abuse of S.M. Detective Hoos testified that S.M. informed him about the abuse and that he arrested McDonald. S.M. testified that she was thirteen years old and her father had her undress and “put his private in her private.” Charla Jamerson, a nurse examiner, testified to signs of extensive and ongoing sexual abuse over a long period of time.
Several witnesses were called by the defense to testify that McDonald needed help instead of incarceration. His brother stated that, if McDonald received proper help, he would trust him around his children. McDonald’s sister testified that McDonald had been abused when he was a child. Michael Standridge testified as an expert witness about the possibilities of treatment and rehabilitation, noting that McDonald was a “nonexclusive” pedophile, meaning he preferred relationships with adults but will engage in inappropriate behavior with children to compensate for the failure of a primary relationship with an adult. According to Mr. Standridge, McDonald needed treatment and not prison for his problems.
At the conclusion of the sentencing phase of the trial, the jury fixed McDonald’s sentence at a term of life in prison. He immediately made a motion for the circuit court to reduce the sentence, arguing that the sentence was the result of passion or prejudice on the part of the jury. The motion was eventually denied, and McDonald filed a timely notice of appeal.
No-Merit Brief
Following McDonald’s plea of guilty, the trial dealt solely with the issue of sentencing. There were no rulings adverse to McDonald in that phase of the trial. The only adverse ruling came after sentencing, when trial counsel for McDonald made an oral motion that the circuit court reduce McDonald’s sentence. That request was subsequently made in the form of a written motion. Defense counsel argued below that the sentence was clearly excessive and the result of passion or prejudice on the part of the jury. On appeal, appellate counsel for McDonald cites to Ark. Code Ann. § 16-90-107 (Repl. 1987). Subsection (e) of this provision states:
The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury if, in the opinion of the court, the conviction is proper and the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, so that the punishment is not, in any case, reduced below the limit prescribed by law in such cases.
Ark. Code Ann. § 16-90-107(e). See also Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002) (holding that trial court has statutory power to reduce sentence fixed by the jury). In support of his no-merit argument, appellate counsel maintains that there is no evidence in the record to demonstrate that the circuit court abused its discretion in denying the motion. The record reveals that, during the sentencing phase of the trial, the jury heard significant evidence on the duration and extent of McDonald’s abuse of his daughter. Charla Jamerson testified to numerous injuries and signs that S.M. had been abused and that the abuse had been occurring over a long period of time. Susan McDonald, S.M.’s mother, testified that S.M.’s mental and emotional recovery had been difficult. She stated that she believed the maximum penalty under the law would be a fair punishment for McDonald. Based on this evidence, the jury’s verdict does not appear to be the result of passion or prejudice. We therefore conclude that the circuit court did not abuse its discretion in denying the motion to reduce the sentence.
Pro Se Brief
McDonald also filed a pro se brief in this case in which he alleges several errors. First, he argues that the circuit court erred in failing to follow the directives of Ark. R. Crim. P. 24.5 (2005) which states as follows:
The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.
Ark. R. Crim. P. 24.5. In this case, the following colloquy occurred between McDonald and the circuit court at the time of the guilty plea:
Court: Mr. McDonald, will you come forward, please, with your attorney? Are you Tim Lawrence McDonald?
Defendant: Yes, sir.
Court: Mr. McDonald, you have been charged with the crime of rape, a Class Y felony, in violation of Arkansas Code 5-14-103. It’s my understanding that you desire to change your plea today. Idas anyone threatened you in any way to get you to change your plea?
Defendant: No, sir.
Court: Has anyone promised you anything in order to get you to change your plea?
Defendant: No, sir.
Court: Are you satisfied with the advice and assistance that Mr. Lisk has given to you in this case?
Defendant: Yes, sir.
(Prosecution recites alleged facts of case)
Court: Mr. McDonald, you’ve heard what the State has said and the charges, or the facts, that show that you are, in fact, guilty of this offense?
Defendant: Yes.
Court: Do you admit or deny the facts, as stated by the State?
Defendant: I disagree with the time frame, sir.
Court: And what do you contain [sic] the time frame is?
Defendant: A year period, not years.
Court: A year period?
Defendant: Yes, sir.
Court: I don’t believe that the time frame affects the validity of the plea.
Defendant: Yes, sir.
Defense Counsel: No, Your Honor.
Court: How do you plead to the charge against you?
Defendant: Guilty.
Court: Anything further?
Defense Counsel: Are you pleading guilty because you are, in fact, guilty?
Defendant: Yes.
Defense Counsel: And you’re doing this of your own knowledge and free will?
Defendant: Yes.
Defense Counsel: And you’re not under the influence of any alcohol or drugs at this time?
Defendant: No.
Defense Counsel: You understand what you’re doing?
Defendant: I’m doing what’s right.
Defense Counsel: And you’re agreeing to let this jury determine your fate?
Defendant: Yes, I am.
Defense Counsel: That’s all, Your Honor.
Court: Anything else? All right, thank you.
The above exchange makes clear that the circuit court in fact did not “determine whether the plea is the result of a plea agreement” nor were the terms of any such agreement stated, as required by Rule 24.5. We have held that this provision is mandatory and that any failure to follow the directives in Rule 24.5 results in a plea that is unintefligently and involuntarily given. McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977). We have further stated that the mandatory requirements of this rule with respect to a plea agreement “are to avoid the chance ... of a misunderstanding by the accused of the law and his rights.” Marshall v. State, 262 Ark. 726, 561 S.W.2d 76 (1978). However, as the above-quoted dialogue also makes clear, no objection was made to the court’s failure to follow Rule 24.5. In criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Thus, we cannot reach the merits of McDonald’s first argument.
The second argument set forth in McDonald’s pro se briefis that the prosecutor and defense attorney repeatedly referred to the sentencing range as including “life without parole” instead of merely “life.” First, no objection was made at any point when the alleged misstatements occurred. As stated above, we will not review arguments that have not been first presented to the trial court. Standridge v. State, supra. Moreover, even if misstatements were made by counsel, the circuit court properly instructed the jury with the correct sentencing range, and the jury is presumed to follow the court’s instruction. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).
McDonald’s third argument is that the judge erred in making the following statements to the jury:
Ladies and gendemen, it is in the interest of the State of Arkansas and the defendant for you to reach an agreement in this case, if at all possible. A hung jury means a continuation of the case, and a delay in the administration of justice. You should consider that this case will have to be decided by some jury and, in all probability, upon the same testimony and evidence.
Trial counsel for McDonald objected to this statement as an inaccurate statement of the law, and the court eventually retracted the instruction and gave a different one. Additionally, defense counsel approved the substituted instruction. Thus, the defendant received what he requested when the court retracted the original instruction and substituted a new and satisfactory instruction that was given to the jury. It is axiomatic that a party who received the relief requested has no basis for appeal. McClain v. State, 361 Ark. 133, 205 S.W.3d 123 (2005); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).
Affirmed; motion to withdraw granted. | [
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Tom Glaze, Justice.
This is an interlocutory appeal from an order of the trial court denying a motion filed by appellant Asbury Automotive Used Car Center (“Asbury”) to compel arbitration. In the mid-1990s, appellees Patrie Brosh, Mark Lunsford, and Mel Anderson developed a concept of selling used cars from WalMart parking lots. Brosh, Lunsford, and Anderson’s company, appellee New Century Auto Sales Corporation (“New Century”), entered into a lease agreement with Wal-Mart whereby New Century leased property on Wal-Mart parking lots from which to sell used cars. New Century eventually developed a business plan or model for this leasing and selling arrangement. Subsequently, New Century decided to market that business plan to used car dealers. Brosh approached Asbury with the business plan, and Asbury responded favorably.
In early 2002, New Century and Asbury executed a series of agreements. Under the “Purchase Agreement,” Asbury agreed to purchase the business model from New Century, and to enter into a new lease with Wal-Mart in order to begin selling used cars from Wal-Mart parking lots. In addition to the Purchase Agreement, Brosh, Lunsford, and Anderson each entered into “Employment Agreements” with Asbury; under the Employment Agreements, Asbury was to pay Brosh, Lunsford, and Anderson an annual base salary of $300,000.00. The Employment Agreements also contained a termination provision, under which Asbury would be obligated, in the event it terminated its leases with Wal-Mart, to provide additional compensation to Brosh and the others.
The parties’ business relationship eventually soured, and Asbury terminated its leases with Wal-Mart, and also terminated Brosh, Lunsford, and Anderson in August of 2003. As a result, plaintiffs Brosh, Lunsford, Anderson, and New Century filed a complaint in Washington County Circuit Court on February 17, 2004, alleging that Asbury had breached both the Purchase Agreement and the Employment Agreement, and sought damages in excess of $23,000,000.00.
On March 25, 2004, defendant Asbury answered and filed a motion for stay of proceedings and to compel arbitration. In this motion, Asbury noted that both the Purchase Agreement and Employment Agreements contained a clause under which any disputes arising from the agreements “shall be submitted to arbitrationf.]” In accordance with Ark. Code Ann. § 16-108-202(a) (1987), Asbury asked the circuit court to order the parties to proceed with arbitration. The plaintiffs responded, asserting that the arbitration clauses lacked mutuality of obligation and were therefore unenforceable. The trial court held a hearing on the matter on June 1, 2004, and subsequently determined that the arbitration agreement lacked mutuality of obligation. Accordingly, the trial court denied Asbury’s motion to compel arbitration on November 30, 2004.
A trial court’s order denying a motion to compel arbitration is immediately appealable under Ark. R. App. P. - Civ. 2(a)(12). This court reviews such an order de novo on the record. See Tyson Foods, Inc. v. Archer, 356 Ark. 136, 157 S.W.3d 681 (2004); The Money Place, LLC v. Barnes, 349 Ark 411, 78 S.W.3d 714 (2002). The construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. Tyson Foods, 349 Ark. at 141; see also E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001).
The arbitration clauses at issue in this case are found in the parties’ Purchase Agreement and in their Employment Agreement. The arbitration clause in the Purchase Agreement reads as follows:
12. ALTERNATIVE DISPUTE RESOLUTION. In the event of any controversy arising out of or relating to this Agreement or any breach thereof, the parties shall first use their diligent and good faith efforts to resolve the dispute by exchanging relevant information and negotiating in good faith. If such dispute resolution efforts are unsuccessful after 30 days, the parties to this Agreement agree to participate in non-binding mediation in accordance with the Commercial Mediation Rules of the American Arbitration Association____ If the mediation is unsuccessful after 45 days from the date the mediation proceedings are commenced, the dispute shall be submitted to binding arbitration in accordance with the rules of the Commercial Arbitration Rules of the American Arbitration Association. . . . Notwithstanding the foregoing language, the parties acknowledge and agree that neither party shall be bound by the terms of this Paragraph 12 if such party seeks any relief against any other party pursuant to Paragraph 9(f)(2) above.
In turn, Paragraph 9(f)(2) provides, in relevant part, as follows:
(f) Non-Competition; Non-Solicitation
(2) Each of [NCAS], [New Century], and [Brosh, Lunsford, and Anderson] acknowledge that the restrictions contained in Paragraphs 9(c) and 9(f)(1), including the geographical restriction set forth in Paragraph 9(f)(1)(A) above, are reasonable and necessary to protect the legitimate interests of [Asbury], and that any violation of Paragraphs 9(c) and 9(f)(1) will result in irreparable injury to [Asbury] for which money damages would not provide an adequate remedy. Therefore, [Asbury] shall (notwithstanding any arbitration or mediation provision set forth in this Agreement) be entitled to preliminary and permanent injunctive relief in any court of competent jurisdiction and to an equitable accounting of all earnings, profits, and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which [Asbury] may be entitled. ... In addition to any other remedies which [Asbury] may have at law, in equity, or under this Agreement, in the event of a breach of the restrictions set forth in Paragraphs 9(c) or 9(f), [Asbury] shall be entitled to withhold any amounts due or owing to [NCAS], [New Century], or [Brosh, Lunsford, and Anderson], as applicable, hereunder or otherwise, and the withholding of such amounts shall not constitute liquidated damages for any such breach.
The Employment Agreements contain similar language. Paragraph 10, governing settlement of disputes, provides the following:
Except as provided in Paragraph 9(d) above, any dispute regarding the interpretation of this Agreement or relating to the Executive^’ ] employment shall be resolved by binding arbitration ... in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association then in effect.
Paragraph 9(d), in turn, reads as follows:
9. Non-solicitation; Non-competition;Trade Secrets, Etc.
(d) Executive[s] acknowledge[ ] that the restrictions contained in Paragraphs 8,9(a), 9(b), and 9(c) ... are reasonable and necessary in order to protect the legitimate interests of [Asbury], and Executive^] therefore acknowledgef] that, in the event of [their] violation of any of these restrictions, [Asbury] shall be entitled (notwithstanding any arbitration or mediation provisions set forth in this Agreement) to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which [Asbury] may be entitled.
Brosh and the other plaintiffs argued below, and the trial court agreed, that these provisions evidenced a lack of mutuality of obligations, which rendered the arbitration agreement unenforceable. This court has had several opportunities in recent years to discuss the concept of mutuality of obligation. Most recently, in Tyson Foods v. Archer, supra, this court noted that the essential elements of a contract, including a contract to arbitrate, are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Tyson Foods, 356 Ark. at 141-42. In the instant case, as in Tyson Foods, the only element at issue is that of mutual obligations.
This court has recognized that mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. Id. at 142; see also Barnes, 349 Ark. at 414. A contract that leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Barnes, 349 Ark. at 414. Mutual promises that constitute consideration for each other are the classic method of satisfying the doctrine of mutuality. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 120, 27 S.W.3d 361, 366 (2000). Mutuality within the arbitration agreement itself is required. Barnes, 349 Ark. at 414. There is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system. Cash in a Flash Check Advance of Arkansas v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002); Showmethemoney Check Cashers, 342 Ark. at 121; E-Z Cash Advance, Inc. v. Harris, 347 Ark. at 139. A lack of mutuality to arbitrate in arbitration clauses renders the clauses void as to the bound party. Showmethemoney Check Cashers, 342 Ark. at 120.
In the “check-cashing” cases, this court consistently held that, where one party retains to itself the right to seek judicial relief, while the other party is strictly limited to arbitration, there is no mutuality of obligations, and the arbitration provisions are unenforceable. For example, in Showmethemoney Check Cashers, supra, the check-cashing company reserved to itself the right to institute legal action to collect any amounts due to it, but required customers to arbitrate any disputes they might have. Likewise, in Cash in a Flash, supra, the check casher reserved the right to “go to court and get a judgment” against the customer, or even to seek criminal charges against the customer, but limited the customer to pursuing any claim against Cash in a Flash through arbitration.
In a recent arbitration case that did not involve a check-cashing company, this court found mutuality of obligation to be lacking. Tyson Foods, 356 Ark. at 146. That case involved a contract between Tyson Foods and a group of hog farmers. There, language in the contract’s arbitration clause directed that “any dispute or controversy between the parties hereto arising out of or relating to this contract. . . shall be submitted to arbitration^]” Id. at 142-43. However, prior to that arbitration clause was a provision detailing Tyson Foods’ remedies in the event that a hog farmer defaulted on the contract. That provision provided as follows:
11. Remedies of Company on Default of Producer. Upon default of breach of any of the Producer’s obligations under this Contract the Company may immediately cancel this Contract by giving notice in writing, and the Company may, without further notice, delay or legal process, take possession of swine, feed or other property owned by the Company. The Company shall have the right to utilize the Producer’s swine facilities until the swine reaches marketable weight. The Company may also pursue any other remedies at law or equity.
Id. at 143. This court held that, because this provision gave Tyson Foods the sole right to pursue legal or equitable remedies, while the farmers were limited to pursuing any grievance in the forum of arbitration, the arbitration agreement lacked mutuality and was therefore unenforceable.
In the present appeal, Asbury argues that there are mutual obligations under the arbitration provisions of the Purchase and Employment Agreements. It asserts that all parties are required to arbitrate any dispute arising out of the contract in which the arbitration provisions arise, except for the availability of injunctive relief in two instances. Asbury further contends that, in the event a party seeks judicial relief, the arbitration provisions do not apply to the other party. It asserts that the parties have agreed to arbitrate, but for certain limited instances, and such an exception to arbitration for both parties should not result in a lack of mutuality. Asbury further claims that Paragraph 12 specifically allows either party to not be bound by the arbitration agreement under the non-competition or non-solicitation provisions. Thus, it argues, paragraph 12 allows either party to seek judicial remedies in limited circumstances.
It is true that Paragraph 12 of the Purchase Agreement provides that “neither party shall be bound by the terms of this Paragraph 12 if such party seeks any relief against any other party pursuant to Paragraph 9(f)(2) above.” Asbury argues that this means that both parties are entitled to seek judicial relief. However, Arkansas law requires that different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is possible; giving effect to one clause to the exclusion of another on the same subject is erroneous. Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). Paragraph 12 must be read in conjunction with Paragraph 9(f)(2), and reading these two paragraphs together compels a conclusion that these two clauses of the contract cannot be harmonized.
As just noted, under Paragraph 12, if “a party” seeks relief under Paragraph 9(f)(2), then neither party is bound to arbitrate. However, upon reading of Paragraph 9(f)(2), it is apparent that the only party who may seek relief under that paragraph is Asbury. Paragraph 9(f)(2) provides that, in the event of a breach of the non-competition and non-solicitation agreement, “Buyer [As-bury] shall (notwithstanding any arbitration or mediation provision set forth in this Agreement) be entitled to preliminary and permanent injunctive relief.” (Emphasis added.) No similar rights are extended to Brosh, Lunsford, Anderson, or New Century. Thus, it is clear that Asbury has reserved to itself the right to pursue non-arbitration remedies, while limiting the other parties solely to arbitration. Under the plain language of Paragraph 9(f)(2), only the Buyer — Asbury — has the right to instigate and pursue legal or equitable relief outside of arbitration. Brosh and the other plaintiffs can never institute legal or equitable actions themselves; they are limited to pursuing arbitration only. Accordingly, as in Tyson Foods, 356 Ark. at 144, the provisions are inconsistent and cannot be harmonized; the arbitration agreement lacks mutuality, and we therefore affirm the trial court’s order denying Asbury’s motion to compel arbitration.
The business model was actually purchased from NCAS, a limited liability company formed by New Century in January of2002, to which New Century assigned the lease and business model.
Section 16-108-202(a) provides, in pertinent part, that “[o]n application of a party showing an agreement described in § 16-108-201 and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration!.]” Ark. Code Ann. § 16-108-201 (Supp. 2005), in turn, provides generally that written agreements to submit controversies to arbitration are “valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract.”
Paragraph 9(c) governs confidentiality agreements; Paragraph 9(f)(1) contains the non-competition and non-solicitation provisions.
“Executives” refers to Brosh, Lunsford, and Anderson.
The parallel paragraphs in the Employment Agreement — Paragraphs 10 and 9(d) — are worded similarly. | [
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Jim Hannah, Chief Justice.
Teresa Michelle Dick appeals her conviction for first-degree false imprisonment alleging that there is insufficient evidence to prove that she restrained her daughter without consent and lawful authority. Specifically, she argues that her conviction cannot stand because a parent cannot be criminally liable for restraining his or her child. We disagree and affirm.
Standard of Review
Dick asserts a single issue on appeal, that the circuit court erred in denying her motion for a directed verdict on the false-imprisonment charge. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Facts
Late in the evening on November 9, 2003, the home of Lloyd Holt and Teresa Dick burned. The home was already burned to the ground by the time firefighters arrived. Brian Williams and another firefighter got a flashlight and looked at the debris. Williams thought that he saw a skull under a bed frame. After cooling the area down so they could make their way further in, the firefighters found a skeleton and a chain. Williams called in the sheriffs’ department. Chief Deputy Jerry Dorney testified that he went where directed by Williams and observed a small metal bed frame and the remains of a body partially underneath the bed frame. He also testified that he discovered two padlocks sticking out of the rubble. He further stated that “there were bones before the chain and after the chain,” which indicated to him that the leg was through the chains with the padlocks attached. Dorney characterized the chain as a “dog chain.” Forensic anthropologist Elayne Pope testified that the victim was underneath the bed as opposed to being on top because the chain was not draped over the top of the bedframe.
Although the body was virtually consumed by the fire, there was a residue of tissue at the hips that allowed testing of blood. From samples obtained, Dr. Stephan Erickson, the state medical examiner, testified that the primary cause of death was smoke and soot inhalation resulting in high carbon monoxide in the victim’s system. He opined that the victim was alive at the time of the fire.
The deceased child was identified by Dick as her ten-year-old daughter Molly. Dick admitted to police that she had chained Molly to the bed. She testified that Molly required supervision twenty-four hours a day, seven days a week. According to Dick, she and Holt sat down and discussed chaining after the use of a rope failed because Molly kept untying it. They decided that a method that stopped her from getting out of her bed was best. Dick also stated that Molly was not put in the bedroom that she and Holt occupied because Molly was older than the other two children and “needed her own space.” The key to the lock was kept on top of the refrigerator. Dick testified that Molly was chained after she fell asleep and unchained before she woke up.
Kim Warren, a state special agent assigned to investigate the death, testified that Dick told her that she had chained Molly to her bed to protect her other children. Dick told Warren that she once caught Molly putting a pillow on her “kid’s back.” Dick testified that she and Holt were scared for the other two children and that Molly was chained every night because they were afraid every night. According to Dick, the behavioral problems with Molly were longstanding and severe. Dick testified that Molly pushed her two-year-old sister off the porch and broke her arm, and that one night she caught Molly trying to suffocate her younger brother. According to Dick, Molly threatened people with knives, and because of this, the knives were moved to the top of the refrigerator. However, Molly would climb up and get the knives, as well as medication that was kept there. Molly was on medication for attention deficit disorder and took sleeping pills.
Molly’s special-education teacher, Becky Madewell, testified that Molly tried to stab persons or objects with scissors and pencils. Madewell also recounted that if Molly was not pressed, she could be well behaved, but that she was easily upset and would throw things. She also had a history at school of kicking and attempting to hurt other students if they did not play with her. Molly’s behavior on the bus proved so troublesome that a fabric-restraint vest was used. Steve Ziegler, principal of Clarksville Primary School, testified that Molly hit other children and an instructional aid.
Molly’s parents took her out of public school and began home schooling her. Madewell then tried to get the parents to take Molly to Arkansas Children’s Hospital to be tested in order to obtain help in controlling her, but according to Madewell, the parents refused. Dick testified that they did get Molly counseling, but stopped because it did not seem to be doing any good.
Dick told police that on the night of the fire, she awoke at about 11:30 because Molly was screaming. She also said that she and Holt tried to get to Molly’s bedroom at the front of the house, but it was on fire, and they could not reach her. Dick further stated that Holt went out a window so she could hand the two younger children to him. She got their son Briar to him immediately, but by then their daughter Madelyn was lost in the smoke. She finally found Madelyn and got her out. Dick then escaped through a window, and the family then left to go to a neighbor’s house.
John Wood testified that he and his wife were out that night to check on a brush fire that they had been burning. They found Holt, Dick, and a small girl and boy coming up the road. According to Wood, Holt stated that there was “nobody else in the house, that the house was so far gone there was nothing else to do.” Wood also testified that Holt told him that the authorities had been called. However, Kim Parrish, the dispatcher for the sheriffs office, testified that no call was received on the fire until 12:30 a.m., and that the call was received from a sister-in-law, Nicki Holt. Dick later substantiated that Nicki first called the authorities. Dick and Holt were delivered to her house by Wood.
Dorney testified that after the fire it was found that Molly’s bed was sitting off-center in the room and that a space heater was next to the bed. Bill Glover, the state’s arson investigator, testified that the fire started in the vicinity of Molly’s bedroom and the living room; however, the exact location could not be determined. Dick testified that there were four windows in Molly’s bedroom, but that she had broken the glass out of three windows previously by throwing toys. Dick stated that one window was boarded up, one was covered with a tarp, and the third window was covered in heavy plastic. Dick told Warren that she had thought about a fire breaking out, and that Molly had put a piece of paper in the space heater the night before; however, she stated that this occurred while Molly was awake and unrestrained.
Evidence was introduced showing that the restraint of Molly was longstanding. Christina Holt, Dick’s former sister-in-law, testified that she had been to Dick and Holt’s prior home before the birth of the second and third children. According to Christina, on one occasion, Molly was locked alone in the house, and on another occasion she noticed a padlock on Molly’s bedroom door. Mitchell Holt, brother to Lloyd Holt, and former husband of Christina Holt, testified that Christina had only been to the home once and that Molly was with Holt and Dick working in the chicken houses on that occasion. He also testified that he moved into the house when Lloyd and Dick moved out, and at that time, he saw no marks or anything to indicate a lock had been on a bedroom door. However, after Molly’s death, deputy Dorney went to the home and found marks from where a hasp had been attached to the bedroom door.
The issue is whether there was substantial evidence to support the jury’s verdict that Molly was restrained without consent and without lawful authority. Dick’s argument is “that there was never any restraint employed without consent by the person with the lawful authority to do so.” Dick thus argues that a parent may not be criminally liable for false imprisonment because a parent has the lawful authority to consent to the restraint of his or her child. Under Ark. Code Ann. § 5-ll-103(a) (Repl. 1997), “[a] person commits the offense of false imprisonment in the first degree if, without consent and without lawful authority, he knowingly restrains another person so as to interfere substantially with his liberty in a manner that exposes that person to a substantial risk of serious physical injury.”
Dick moved for a directed verdict, arguing that there was insufficient evidence because the parents consented and were the only ones who could consent to the restraint of Molly. The motion was denied. Dick next moved for a directed verdict, arguing that the parents had the lawful authority to restrain Molly. The State argued that Dick was asserting justification under Ark. Code Ann. § 5-2-605(1) (Repl. 1997):
A parent, teacher, guardian, or other person entmsted with care and supervision of a minor or an incompetent person may use reason able and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person.
The court agreed with the State and denied the motion. Dick’s second directed-verdict motion, presented after the State’s rebuttal evidence, was based on the same grounds and again denied.
Consent and Lawful Authority
Dick asserts that in chaining Molly to her bed, she was only exercising her right and obligation as a parent to control and protect her children. Parental rights are in the nature of a trust subject to their duty to care for and protect the child, and the law secures those parental rights only so long as parents discharge their obligations. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Further, while a parent has wide discretion and a duty under the law to rear and discipline his or her child, the discretion to discipline does not exceed the limits of reasonable parental care. See Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982). Parental rights are not beyond limitation in the public interest. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994) (quoting Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)). The State’s constitutional interest extends to the welfare of the child, and parental rights are not immune from interference by the State in its role of parens patriae. Id.
A parent ‘ ‘may use reasonable and appropriate physical force upon the minor . . . when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor. ...” Ark. Code Ann. § 5-2-605(1). However, obviously, a parent may not use his or her parental authority to commit a crime upon his or her own child. See, e.g., Demontigney v. State, 593 N.E.2d 1270 (Ind. Ct. App. 1992) (parent convicted for chaining six-year-old son to his bed and leaving him for long periods of time without food and water to defecate and urinate on himself); State v. Brown, 792 S.W.2d 3 (Mo. Ct. App. 1990) (live-in boyfriend convicted of criminal confinement and torture of seven-year-old boy who was banished to furnace room in the basement, chained to a rusty bed frame, and physically abused under the guise of discipline); State v. Artis, 46 Ohio App. 3d 25, 545 N.E.2d 925 (1989) (father convicted of child endangerment for binding his daughter, tying her to a beam, stuffing a sock in her mouth, and beating her with a paddle under the guise of discipline); Nebgen v. State, 47 Ohio App. 431, 192 N.E. 130 (1933) (man with custody of seven-year-old boy convicted for chaining the boy to a bathtub in his absence and for failure to properly feed and clothe the boy).
“Parents can be guilty of unlawful imprisonment of their own children in circumstances where the restrictions on the children’s movements, viewed objectively, are excessive, immoderate, or unreasonable.” State v. Kinchen, 92 Wash. App. 442, 444, 963 P.2d 928 (1998). When a person restrains his or her own child for an unlawful purpose, he or she divests him or herself of any parental immunity. People v. Checketts, 71 Cal. App. 4th 1190, 84 Cal. Rptr. 2d 491 (1999). The majority rule is that a parent may lawfully exercise reasonable control and discipline of his or her own child. See State v. Washington, 166 Vt. 600, 691 A.2d 583 (1997); State v. Bruce, 132 N.H. 465, 566 A.2d 1144 (1989); People v. Walker, 130 Ill. App.3d 58, 473 N.E.2d 995 (1985). Our own cases are consistent with this rule. Attwood, supra; McFarland, supra. Our statutes are consistent with this rule. Ark. Code Ann. § 5-2-605. There is no merit to Dick’s argument on appeal that as a parent she could not be held liable for criminal conduct committed against Molly because she had the lawful authority to consent to restraint of her child. There was substantial evidence to support the jury’s finding that Dick committed the crime of false imprisonment by exercising excessive and unreasonable restraint that created a substantial risk of serious physical injury.
Affirmed.
Corbin and Imber, JJ., dissent. | [
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Tom Glaze, Justice.
The State of Arkansas brings this interlocutory appeal from the trial court’s order granting the motion to suppress filed by the three appellees in this case, Phillip Nichols, Trudy Nichols, and Dale Scamardo. At issue is whether exigent circumstances compelled a warrantless entry into the home of the appellees, and whether any such exigent circumstances were created by the investigating officer.
The facts were established at the January 26, 2005, suppression hearing by the testimony of Greenwood Police Officer Will Dawson. Dawson testified that, on June 25, 2004, he received a phone call informing him that a woman had purchased iodine at a local feed store. Dawson also obtained the license tag number and a description of the vehicle, and was able to determine the address at which the vehicle was registered. Dawson, who was in plain clothes, drove to that address and then called for backup, so he would have officers in uniform and in marked police units with him when he approached the house.
After two uniformed officers arrived at the defendants’ house, Dawson approached the residence. As he did so, Dawson detected a chemical odor in the air. He then proceeded to a window in the front door and looked inside the house. Dawson saw three people and a kitchen table; on the table were “items of paraphernalia used in the manufacture ofmethamphetamine.” On the porch, there was also a soda bottle with a tube protruding from the cap. Dawson stated that he believed this bottle to be a hydrogen chloride gas generator used in the manufacture of methamphetamine.
As he stood on the front porch observing the occupants in the house, Dawson started knocking and saying “police.” Inside, the two men and a woman were picking up items off the table and running into each other; Dawson described the scene as “pretty much chaos.” One man, later identified as Phillip Nichols, had two jars in his hand. The other man, Dale Scamardo, was dragging a trash can from the area, and the female, Trudy Nichols, had “something” in her hands, although Dawson could not identify what it was. Dawson also noted other items on the table that he described as being “part of the process” of manufacturing methamphetamine, such as lighter fluid, tubing, glass jars, Red Devil lye, and coffee filters.
Dawson testified that while he was knocking on the door, the occupants of the house “weren’t paying any mind” to him, so he surmised that they were trying to get rid of the contents of the jars. He stated that he had “no doubt” that they were trying to destroy the evidence of the felony that was taking place. Between the activity of the people inside the house and the chemical odor in the air, Dawson determined that it was in the interest of everyone’s safety that he try to enter the house. He tried the door and, finding it locked, kicked the door in. He and the back-up officers entered the residence, removed the occupants, and secured the house. After the house was secure, Dawson obtained a search warrant and came back to conduct a complete search of the house.
The trial judge asked Dawson whether, if the three people had not seen Dawson when he looked in the door’s window, he could have left the scene and obtained a warrant. Dawson replied that the people in the house knew he was there, and they knew he was knocking and saying “police.” Their reaction, he said, was to grab things from the table and run instead of opening the door. Dawson asserted that, despite his knowledge of the iodine purchase, the chemical odor in the air, and the hydrogen chloride generator on the front porch, he did not have probable cause to believe there was a crime being committed until after he saw the items on the table inside the residence.
After considering the arguments of counsel, the trial court took the motion to suppress under advisement. On February 3, 2005, the trial court issued an order granting the defendants’ motion to suppress, ruling that, under the totality of the circumstances, “this warrantless entry into the home was not justified by the officer’s stated belief that evidence would be destroyed or by any other exigent circumstance.” The State filed its notice of appeal on February 4, 2005.
Although neither party has mentioned the issue in their briefs, this court must first consider whether it has jurisdiction of the State’s appeal. See State v. Gray, 319 Ark. 356, 891 S.W.2d 376 (1995) (this court has a duty to raise the issue of the propriety of the State’s appeal, even where neither party raises the issue, because it is a matter of subject matter jurisdiction). Under Ark. R. App. P. Crim. 3(a) (2005), the State may take an interlocutory appeal “only from a pretrial order in a felony prosecution which . . . grants a motion under Ark. R. Crim. P. 16.2 to suppress seized evidence Further, Rule 3(c) provides as follows:
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
(Emphasis added.)
As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002); State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001); State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000).
As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of the law. State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005); State v. Warren, supra. We do not permit State appeals merely to demonstrate the fact that the trial court erred. Pittman, supra. Where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appeal-able by the State. State v. Williams, 348 Ark. 585, 75 S.W.3d 684 (2002). This court has noted that it will not even accept mixed questions of law and fact on appeal by the State. State v. Hagan-Sherwin, 356 Ark. 597, 158 S.W.3d 156 (2004); State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997). Furthermore, this court will not accept an appeal by the State where the trial court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact. State v. Guthrie, supra; State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Thus, this court must determine whether the issue subject to appeal is one involving the interpretation of a rule or statute, as opposed to one involving the application of a rule or statute. Pruitt, supra; Guthrie, supra.
This appeal does not involve the correct and uniform administration of the criminal law. This is a case involving the trial court’s consideration of the particular facts of the case and its determination that those facts did not justify the officer’s warrant- less entry into the defendants’ home. Here, the trial court determined that, “[u]nder the totality of the circumstances, this warrantless entry into the home was not justified by the officer’s stated belief that evidence would be destroyed or by any other exigent circumstances.” Such a determination necessarily turned on the trial court’s consideration of the facts, which consisted solely of Officer Dawson’s testimony. This court has never wavered in its long-standing rule that it is the province of the trial court, not this court, to determine the credibility of the witnesses. See, e.g., Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004) (we do not attempt to weigh the evidence or pass on the credibility of witnesses; that duty is left to the trier of fact); State v. Guthrie, supra (dismissing the appeal because the trial court’s ruling was a “fact-intensive matter” resolved “after receiving the evidence and weighing the credibility of the witnesses”); State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997).
The State’s instant appeal turns on whether the facts supported the trial court’s finding that no exigent circumstances justified a warrantless search. Even though the State attempts to frame its argument in terms of whether the trial court misconstrued the holding of Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004), the resolution of that issue nonetheless turns on the trial court’s consideration of the facts surrounding Officer Dawson’s approach to the defendants’ house. As noted above, this court has repeatedly explained that, “[wjhere the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal” under Rule 3. State v. Howard, 341 Ark. 640, 648, 19 S.W.3d 4, 10 (2000) (emphasis added); see also State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”).
In the instant appeal, the State argues that the trial court misapplied the holding of the Mann case to the facts before it. Because the resolution of the issues turns on the facts unique to the case, the matter is not appealable by the State, and the appeal must therefore be dismissed. | [
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Betty C. Dickey, Justice.
This appeal arises from an order of the Circuit Court of Newton County directing that all the fees awarded pursuant to Ark. Code Ann. § 16-61-109 (1987) were to be paid by the plaintiffs and taxed as costs against the defendants, Kenneth G. Middleton and Lynn Carl Middleton, Kenneth Middleton’s brother. This case has been on appeal before this court on two prior occasions. See Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001) (Middleton I); Middleton v. Lockhart, 355 Ark. 434, 139 S.W.3d 500 (2003). Now, appellant Lynn Carl Middleton asserts on appeal that the circuit court erred when it assessed as costs to the defendants the fees awarded pursuant to § 16-61-109, because such an award of costs was specifically precluded by an earlier decision of this court. In addition, appellant Kenneth G. Middleton filed a pro se brief asserting (1) that the circuit court erred in granting opposing counsel’s motion for the appointment of attorney under Rule 17(c) to represent appellant and (2) that this court should remove Judge John Lineberger on the basis of bias. We find no error and affirm.
We reiterate the facts as they were set forth in our opinion in the direct appeal. Middleton I, supra. On February 22, 1991, Kenneth G. Middleton was convicted of the first-degree murder of his wife, Katherine, and sentenced to life without parole for the murder, plus 200 years for armed criminal action. On February 27, 1991, Kenneth entered into a contract to convey a tract of land known as the Middleton homeplace to Lynn Carl Middleton, Kenneth’s brother. On March 7, 1991, a warranty deed conveying the land was filed. Additional transactions around this same time make it clear Kenneth was liquidating his assets. OnMarch 11, 1991, Kenneth sold his cattle for $19,000. On March 26, 1991, Kenneth conveyed 265 acres of land to Rocky Lee McCutcheon and Sheila Marie McCutcheon.
Prior to these transfers, Kenneth had been sued on July 19,1990, by Katherine’s siblings in a wrongful-death action. Trial of the wrongful-death action in Missouri was set for May 26, 1992. On the day of trial, no one appeared on behalf of Kenneth, which resulted in a judgment against him for $1,350,000. Lockhart v. Middleton, 863 S.W.2d 367 (Mo.Ct.App.1993). The trial court concluded there was ample evidence Kenneth transferred or conveyed all, or substantially all, of his assets as of early 1991, and that due to Kenneth’s refusal to comply with discovery, the record did not reflect what, if any, assets he might have retained. The court then considered the transfers and found the conveyance of the 265 acres was for a reasonably equivalent value. Thus no claim of resulting insolvency could be made as to this transfer. However, the trial court found that the Middleton homeplace was not transferred for a reasonably equivalent value. The trial court then found Kenneth abandoned any homestead right he claimed when he murdered his wife and ordered the Middleton homeplace sold at execution sale.
Both Kenneth and his brother, Lynn, raised an asserted marriage homestead-exemption of Kenneth and Katherine as a defense to execution on the Middleton homeplace. Kenneth and Katherine were married in April of 1974. At that time, Kenneth already owned the tract of land referred to as the Middleton homeplace, which is located in Newton County. When the land was conveyed to him in 1973, he noted on the deed that he would offer the land to a brother or sister before it would be sold to anyone else. This deed also contained a provision reserving the right to live in the house to Oshia Middleton for the remainder of her life. The land was in Kenneth’s name and remained so until Kenneth transferred it shortly after his conviction. During the marriage, a 1,663 square foot home and a 2,800 square foot metal building were erected on the Middleton homeplace. In consider ing the claim of a homestead exemption, the trial court found a lack of evidence to show an exemption based upon head of household, and found there was conflicting evidence on whether the exemption might be based on marriage. The trial court concluded that whatever interest Kenneth had in the Middleton homeplace as a result of his marriage, he abandoned it when he terminated his marital interest by murdering his wife. The trial court awarded Kenneth’s attorney a reasonable attorney’s fee pursuant to Ark.Code Ann. § 16-61-109 (1987) in the sum of $14,996.93, to be paid by appellees, and taxed the attorney’s fees as costs to Kenneth and Lynn.
In Middleton I we held, among other things, that § 16-61-109 provides that the attorney’s fees for Kenneth’s attorney are to be paid by the plaintiffs, since Kenneth is a prisoner and was represented by appointed counsel. However, we also held that the trial court could use its equitable power to assess costs differently because an award of costs is within the sound discretion of the trial court. Middleton v. Lockhart, 344 Ark. at 585, 43 S.W.3d at 122.
Lynn Middleton asserts in the current appeal that in Middleton I this court specifically precluded the circuit court from assessing as costs to the defendants the fees awarded pursuant to § 16-61-109. While this court did determine that the statute provides that attorney’s fees are to be paid by the plaintiff, we also recognized that the trial court had sound discretion in awarding costs. Id. We explained further that the court could determine that costs were to be taxed against the Middletons under the trial court’s right of assessing costs in equity. Id. The circumstances surrounding this case would have allowed Kenneth, who was involved in fraudulent transfers and a scheme to retain homestead benefits after murdering his wife, and Lynn, a party to the improper transfer of the Middleton homeplace, to escape the burden of having to pay the fees resulting from this lawsuit. The burden would have been on the victim’s family to pay his costs. The circuit court was clearly exercising its equitable power when it ordered that all the fees be taxed as costs against the defendants, Kenneth G. Middleton and Lynn Carl Middleton, and we affirm its decision.
Kenneth states that the circuit court erred in appointing Drew Pierce to represent him and in denying his motion for appointment of “conflict free counsel.” Kenneth asserts that he made a motion requesting that Drew Pierce, his appointed attorney, be removed from appellant’s case and replaced by “conflict free counsel” under Rule 17(c) of the Arkansas Rules of Civil Procedure. He claims that “after several months, that motion was denied.” However, no such motion is included in the record and the appellant did not include the motion or any judgment in an abstract. While there is a notation on the docket from the circuit court that a motion for “conflict free counsel” was made, there is no record of a judgment or order on that motion. There is also no record that the motion was made twice, as appellant alleged. A simple docket notation cannot be used to fill a deficiency in the record as it is not an entry of judgment. Hollaway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945). While this court has allowed a docket notation to preserve an issue for appeal, it was in a limited case where the docket specifically stated “motion to suppress denied.” Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000). It is well established that the abstract is the record for purposes of appeal, and the appealing party has the burden to provide a sufficient record and abstract. Boatmen’s Trust Co. of Arkansas v. Housing Authority of City of North Little Rock, 346 Ark. 192, 57 S.W.3d 132 (2001). A pro se defendant must abide by the same abstracting standards as any other licensed attorney. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998). This court will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Boatmen’s Trust Co. of Arkansas v. Housing Authority of City of North Little Rock, supra. Furthermore, if a motion was filed, it is the appellant’s obligation to obtain a ruling in order to properly preserve an issue for review. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Because there is not proper documentation of the motion for “conflict free counsel,” or a judgment on such a motion, it has not been properly preserved for appeal.
For the final point on appeal, Kenneth stated very simply in his brief that “considering all the above facts” Judge Lineberger should be removed from the case and a non-biased judge should be appointed. This argument was not preserved for appellate review. The argument alleging judicial bias is not preserved when there was not an objection based on the bias of the judge or a motion for the trial judge to recuse. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003). There is no record of a prior objection or motion regarding a problem with the trial judge. Because the argument was not properly preserved for appeal, we will not address the merits of this issue.
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Annabelle Clinton Imber, Justice.
The appellant, Mary Linker-Flores is the mother of five children: K.L., C.L., L.L., A. F., and A. F. In a previous appeal, we stated the facts of this case as follows:
. . . This case began on July 27, 2001, when the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of all five children. DHS had been investigating the Linker-Flores family since April 9, 2001, when the Department received an initial report of educational neglect. On May 10, 2001, the case was assigned to a caseworker and services such as home visits and a referral for housing were offered to the family. On July 25,2001, DHS received a call from a detective with the Little Rock Police Department, stating that [K.L.] had raped [C.L.] and [L.L.]. At this time, both parents were arrested on warrants. [K.L.] was arrested, and the assessor initiated a seventy-two-hour hold on the children because of the sexual abuse allegations and the lack of a legal caretaker. The court entered an Order for emergency custody and set the matter for an emergency hearing on August 1, 2001.
At the August 1, 2001 hearing, the trial court found that probable cause existed and maintained the children in the custody of DHS. The court also ordered a home evaluation of the Linker-Flores home and supervised visitation for Mr. and Mrs. Flores at the DHS office.
On September 13,2001, at the adjudication hearing, the court found the children were dependent/neglected and maintained them in DHS custody. The court also ordered both parents to attend and complete parenting classes. The court set March 11, 2001, for another review....
On July 22, 2002, at the permanency planning hearing, the court... set January 8,2003, as the date for the termination hearing.
Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004).
At the termination hearing, numerous witnesses testified to various problems that made Mrs. Linker-Flores an unsuitable parent. Dr. Janice Church, the therapist for L.L. and Mrs. Linker-Flores, testified that Mrs. Linker-Flores saw herself as a victim and was unable to put her children’s needs above her own. She further testified that L.L. took the role of a “parentified child” with her younger siblings, meaning she took over the care-giving role for them. Also, Mrs. Linker-Flores’s frequent incarcerations interrupted her therapy sessions with her children and thereby impeded their progress.
Jim Harper, the therapist working with C.L., testified that Mrs. Linker-Flores failed to protect C.L. from abuse by K.L., even after C.L. came to her and told her K.L. was trying to “get gay” with him. Additionally, Dr. Paul DeYoub performed a psychological evaluation on Mrs. Linker-Flores and testified that she remained ambivalent about the sexual abuse and was unsympathetic toward L.L. In fact, she referred to L.L. as a pathological liar.
Finally, Anna Foster, a DHS caseworker, testified that Mrs. Linker-Flores had not maintained a permanent home and had been dishonest when asked about her living situation. She stated that she had attempted to do a home study on a duplex that Mrs. Linker-Flores claimed to be living in, but that she was unable to complete it because she could never confirm that Mrs. Linker-Flores actually lived there. Ms. Foster also stated that DHS did a housing referral for Mrs. Linker-Flores, but the referral had not been successful.
The circuit court, after hearing all the evidence, found that it was in the children’s best interest to terminate Mrs. Linker-Flores’s parental rights. She then filed a timely notice of appeal, and her appointed counsel, Anne Orsi Smith, petitioned this court to be relieved as counsel, stating she could find no meritorious grounds for appeal. We denied counsel’s motion to be relieved and ordered the parties to brief the issue of whether court-appointed counsel representing an indigent parent in a termination proceeding should be required to file a no-merit brief comparable to that required under Anders v. California, 386 U.S. 738 (1967), when there appear to be no meritorious grounds for appeal. Linker-Flores v. Arkansas Dep’t of Human Servs., 356 Ark. 369, 149 S.W.3d 884 (2004) (per curiam). After review of that issue, we decided such a procedure was necessary to protect the rights of indigent parents whose parental rights have been terminated. Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). Mrs. Linker-Flores’s counsel now submits a no-merit brief, and requests to be relieved as counsel. Mrs. Linker-Flores has also submitted pro se points for appeal in the form of a letter to the court. As this is a second appeal in the Linker-Flores case, jurisdiction is appropriate pursuant to Ark. Sup. Ct. R. l-2(a)(7)(2005).
Mrs. Linker-Flores’s counsel has filed a no-merit brief pursuant to Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), requesting to be relieved as counsel. In Linker-Flores, we described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal:
[Appointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal.
Id. The only issue presented in the no-merit brief filed by counsel is whether there is clear and convincing evidence to support the circuit court’s decision to terminate Mrs. Linker-Flores’s parental rights. In evaluating a no-merit brief, the issue for the court is whether the appeal is wholly frivolous or whether there are any issues of arguable merit for appeal. Linker-Flores v. Arkansas Dep’t of Human Servs., supra. Because there is clear and convincing evidence to support the circuit court’s order in this case and because we find no other issues of arguable merit, we grant appointed counsel’s motion to be relieved as counsel and affirm.
Under Ark. Code Ann. § 9-27-341 (Supp. 2005), a circuit court may terminate parental rights if the court finds that there is an “appropriate permanency placement plan for the juvenile” and finds by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health, and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds:
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3) (B)(1) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months.
Ark. Code Ann. § 9-27-341 (b)(1)(a), (b)(3)(A) & (B)(i)(a), (b); Camarillo-Cox v. Arkansas Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Arkansas Dep’t of Human Servs., supra. When the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Linker-Flores v. Arkansas Dep’t of Human Servs., supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing Court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Camarillo-Cox v. Arkansas Dep’t of Human Servs., supra. Such cases are reviewed de novo on appeal. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). For purposes of reviewing the sufficiency of the evidence in this case, we must examine evidence from all hearings and proceedings in the case, as the circuit court took judicial notice and incorporated by reference into the record all pleadings and testimony in the case that occurred before the termination-of-parental-rights hearing. See Ark. Code Ann. § 9-27-341 (d)(2). In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Arkansas Dep’t of Human Servs., supra. In the instant case, the circuit court found that there was ample evidence to meet all the above-cited statutory requirements for termination.
The evidence supported the circuit court’s finding that termination was in the children’s best interest. DHS had devised a plan for the children whereby C.L. and the young girls would remain in their foster homes and eventually be adopted. L.L., because of her severe reaction to the abuse, would be placed in a therapeutic foster home, and she would also eventually be adopted. Ms. Delandrea Reddix, an adoption specialist, testified that the children were adoptable and that there were families interested in these types of children. Her testimony was not contradicted, and thus it was reasonable for the circuit court to conclude that the children were adoptable. Additionally, there was clear and convincing evidence that continued contact with Mrs. Linker-Flores would result in harm to the children. She repeatedly put her needs above the needs of her children. She also refused to believe the claims of sexual abuse of C.L. and L.L. until her oldest son K.L. admitted his guilt to her. Further, she blamed the children for the involvement of DHS and stated to L.L. during a visit, “Why did you do this to me? Why do you have to keep me upset?” Mrs. Linker-Flores was unable to demonstrate stable housing for the children and was frequently untruthful about her housing situation. Additionally, despite significant testimony concerning her husband’s drinking habits, Mrs. Linker-Flores categorically refused to recognize that his drinking could create problems for the children.
There was also sufficient evidence to support the circuit court’s determination that the statutory grounds for termination were met. The case began originally with an emergency petition based on educational neglect, after reports that C.L. and L.L. had missed an extraordinary amount of school. Melissa Smith, a counselor at C.L. and L.L.’s school, testified that both children had poor attendance. She stated that if L.L. made it to school once or twice a week, that was a good week. She also noted that, on each occasion, Mrs. Linker-Flores called the school to report that a child would be absent. Ms. Smith further testified that both C.L. and L.L. came to school “filthy dirty.” L.L. testified that she missed so much school because she was taking care of her little sisters when her mother was at work. She also stated that, on some days, her brother would take care of her sisters, and on those days she went to school. This evidence was sufficient to justify a finding of educational neglect by the circuit court.
In addition, after the original petition was filed, new facts concerning the sexual abuse of L.L. and C.L. by K.L. came to light. The revelation of this abuse brought new concerns to the Linker-Flores case. Arkansas law states that it is not enough for a parent to refrain from personally harming the child; instead, it is a parent’s duty to take affirmative steps to protect the child from harm. Wright v. Arkansas Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). In Wright, the parental rights of a mother were terminated when she failed to protect her infant son from abuse by her boyfriend. Though the mother had never personally abused her son and had cooperated with DHS, the Arkansas Court of Appeals nonetheless upheld the termination of her rights because she had ignored signs that her boyfriend was abusing her son. Id. Similarly, here, there was testimony that Mrs. Linker-Flores ignored signs that C.L. and L.L. were being abused by K.L. Jim Harper, a therapist who was working with C.L., testified that C.L. told him about attempting to tell his mother that “[K.L.] tried to get gay with me” but his mother “told [him] to shut up.” Additionally, Mrs. Linker-Flores herself testified that both children had shown signs of abuse, but she had been unable to recognize those signs.
Mrs. Linker-Flores also showed little improvement in recognizing her responsibility to protect the children. Dr. Janice Church, who worked in therapy with L.L. and her mother, testified that Mrs. Linker-Flores “identified herself more as a victim of the system” and had a hard time seeing what she needed to do for her children. She stated that, while Mrs. Linker-Flores was beginning to make some progress, it “was going to be a very slow process of her really getting to the point that she could provide that necessary support.” Finally, though Mrs. Linker-Flores did eventually acknowledge the abuse of C.L. and L.L., Dr. Church testified that she had “no idea whatsoever of the magnitude of the abuse.” Based on this evidence, the circuit court did not err in concluding that statutory grounds for termination, including educational neglect and failure to protect, existed for the termination of parental rights.
Mrs. Linker-Flores’s frequent incarcerations and complete failure to secure appropriate housing for her children further evidences her failure to effectively care for them. While incarceration is not, of itself, conclusive on the termination issue, imprisonment does not toll a parent’s responsibilities toward his or her children. Malone v. Arkansas Dep’t of Human Servs., 71 Ark. App. 441 (2000)(citing Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976)). Here, Mrs. Linker-Flores’s repeated incarcerations interfered significantly with her therapy as well as her children’s therapy. Additionally, despite numerous attempts by DHS to do a home study of the Linker-Flores home, no study was ever done because DHS was not able to confirm Mrs. Linker-Flores’s location. At the time of the termination hearing, Mrs. Linker-Flores was incarcerated, but she was planning to live with Mr. Flores when she got out. He was living in a duplex with several other men, an environment that Mrs. Linker-Flores acknowledged would be inappropriate for her young children. In sum, the evidence of frequent incarcerations, as well as a complete failure to secure adequate housing, supports the circuit court’s finding that parental rights should be terminated.
Finally, the circuit court was justified in finding that DHS had made reasonable and meaningful efforts to rehabilitate the home and correct the conditions which necessitated removal, as required by Ark. Code. Ann. § 9-27-341. Over the course of the fifteen-month investigation, DHS offered numerous services, therapy options, and classes to Mrs. Linker-Flores. She was afforded counseling sessions with Dr. Church, parenting classes, and a housing-referral offer by DHS. Although Mrs. Linker-Flores did complete the parenting classes and attempted to participate in therapy, her progress was hindered by frequent incarcerations, an inability to take responsibility for her actions, and an inability to prioritize the needs of the children above her own needs. At one point, C.L. was removed from a therapy session with Mrs. Linker-Flores due to repeated inappropriate comments by his mother. Additionally, DHS made several attempts to verify Mrs. Linker-Flores’s residence and perform a home study, but she failed to provide accurate information about her living situation. The evidence summarized above is sufficient to support the circuit court’s determination that DHS provided meaningful efforts to rehabilitate the home and correct the conditions which necessitated removal, but that these efforts were not sufficient to remedy the problems.
Following the standard we have set out for no-merit briefs in criminal cases, no-merit briefs in termination-of-parental-rights cases “shall include an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a- meritorious ground for reversal.” See Ark. Sup. Ct. R. 4-3(j) (2005). In this case, our review of the record reveals three additional rulings adverse to Mrs. Linker-Flores in the termination hearing that were not abstracted or included in the argument section. Generally speaking, if a no-merit brief fails to address all the adverse rulings, we will send it back for rebriefing. Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Mitchell v. State, 327 Ark. 285, 938 S.W.2d 814 (1997). However, as this is our first occasion to address the specific procedures for a termination-of-parental-rights no-merit brief and as the adverse rulings were clearly not meritorious, we decline to order rebriefing so as to avoid any further delay in this case.
The first adverse ruling by the circuit court was made in response to Mrs. Linker-Flores’s argument that she was not given adequate notice of the hearing to terminate her parental rights. She argued that, because she had not received a copy of the termination petition, the hearing should be a review hearing instead of a termination hearing. The circuit court determined that notice was sufficient and denied the motion. According to Ark. Code Ann. § 9-27-341 (b)(2), “The petitioner shall provide the parent or parents actual or constructive notice of a petition to terminate parental rights.” Here, the circuit court announced at the preceding hearing, while Mrs. Linker-Flores was in attendance, that the next hearing would be to terminate parental rights. Thus, she was given actual notice of the hearing, which was sufficient to apprise her of the termination hearing. See Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979) (actual notice of adoption proceedings before the entry of judgment held to be sufficient); see also Arkansas Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) (actual notice sufficient to satisfy due process and statutory requirements for criminal contempt hearing).
The second adverse ruling came at the conclusion of parent-counsel’s questions to Anna Foster regarding Mrs. Linker-Flores’s participation in therapy. During the examination, the following colloquy occurred:
Q Now they were in therapy, weren’t they?
A At some times.
Q Their mother was in therapy all the time, wasn’t she
A Yes —
Q When she was able to be there, she was there, right?
A She was there, but most of the time she had not achieved the goals that she needed to complete all of the therapy.
Q But she was in therapy, right?
A She was in therapy.
Q Ok.
At that point, counsel for DHS objected to the question, “But she was in therapy, right?” as having been asked and answered. The circuit court sustained the objection and parent-counsel agreed to move on from the topic. Arkansas Rule of Evidence 611(a)(3) provides that the court shall exercise reasonable control over the mode of interrogating witnesses. In this case, Mrs. Linker-Flores had already established that she was in therapy, and thus the circuit court did not abuse its discretion by sustaining the objection.
The third adverse ruling occurred when, on direct examination of Mrs. Linker-Flores, her counsel asked, “Until today did you know that divorcing your husband was something that would have been expected of you to get your children back?” Counsel for the children objected, arguing that the question misinterpreted the evidence presented at the hearing. The circuit court sustained the objection, stating that DHS had not given “any sort of implication along those lines.” Indeed, while there was significant testimony about Mr. Flores’s problems and the problems in their marriage, there was no testimony that a divorce was required or expected in order for Mrs. Linker-Flores to be awarded custody of her children. The record supports the circuit court’s conclusion, and its refusal to allow the question was not an abuse of discretion.
There is also no merit to any of the arguments submitted by Mrs. Linker-Flores. In a letter to the court, she argues against termination on three grounds: first, that the witnesses against her at trial were not credible; second, that the evidence showed some progress immediately preceding the termination; and third, that she has made progress since the termination. None of these arguments merit reversal of the circuit court’s decision.
First, despite Mrs. Linker-Flores’s attacks on much of the testimony presented as untruthful, this court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Mrs. Linker-Flores presented no evidence at the termination hearing to support her arguments that the witnesses were being untruthful. Thus, we cannot say that the circuit court’s determination that there was clear and convincing evidence to support termination was clearly erroneous.
Mrs. Linker-Flores also attacks the termination order by suggesting that she made some improvements prior to the termination hearing and additional improvements after the termination hearing that warrant reversal. However, we have refused to reverse a circuit court’s termination of parental rights when the parent shows only last-minute improvement. Trout v. Arkansas Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004). In Trout, our court upheld a circuit court’s termination of parental rights where the mother had shown marginal improvements immediately preceding the termination hearing. We stated, “[I]t was appropriate for the judge to consider the history of [the parent’s] appearances before him in determining whether she could be trusted to continue making positive steps.” Id. In this case, there was testimony that Mrs. Linker-Flores began making limited improvements in therapy prior to termination, but Dr. Church testified that it “was going to be,a very slow process of her really getting to the point that she could provide that necessary support.” Additionally, at the time of the termination hearing, Mrs. Linker-Flores was again incarcerated and Dr. Church had testified that when Mrs. Linker-Flores was incarcerated, she did not attend therapy sessions. The circuit court found, in regards to Mrs. Linker-Flores, “[I]t is doubtful that reunification will occur within the very near future or ever.” Based on the evidence presented at the hearing, the court’s conclusion was not clearly erroneous. Finally, we cannot consider Mrs. Linker-Flores’s suggestions that she has, since the termination hearing, made progress such as securing housing. As any possible evidence of these developments would have arisen after the termination hearing, such evidence was not presented for the circuit court’s consideration and is not included in the record. Accordingly, we cannot consider it in our review of the circuit court’s decision. Rodriguez v. Arkansas Dep’t of Human Servs., 360 Ark. 180, 200 S.W.3d. 431 (2004).
Finally, we note that this case has gone on for over four years. Such a delay goes against the clear legislative intent of the termination-of-parental-rights statute, which specifically states:
The intent of this section is to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.
Ark. Code Ann. § 9-27-341(a)(3). While the delay in the instant case may be partially attributable to our recent adoption of the Anders procedures in cases of indigent-parent appeals, we are mindful that the appellate review and disposition of this case is long overdue. The need to expedite appeals in termination-of-parental-rights cases is of the utmost importance. In that regard, we have requested that our court’s Ad Hoc Committee on Foster Care and Adoption make recommendations for changes in the court’s rules of appellate procedure.
Parent-counsel’s motion to be relieved is granted and the circuit court’s order terminating parental rights is affirmed. | [
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Betty C. Dickey, Justice.
Appellant, Mertin Fondren, appeals from an order of the Crittenden County Circuit Court convicting him of felony fleeing, manslaughter, and misdemeanor theft. He was sentenced to sixty years in prison as a habitual offender. Appellant first alleges that the trial court erred by failing to grant his motion for a directed verdict. Second, he contends that the trial court erred by submitting a manslaughter instruction to the jury, arguing that fleeing is not an appropriate underlying felony to the manslaughter charge. This appeal involves an issue of first impression and a substantial question of law concerning the interpretation of a criminal statute; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l) and (b)(6). We find no error and affirm.
On September 11, 2003, around 8:00 p.m., appellant and two other individuals entered the Save-a-Lot grocery store parking lot. The three individuals went into the store and filled a shopping cart full of candy. They loaded the candy into their vehicle and drove off, toward Interstate 55. The assistant manager of the Save-a-Lot had noted the make, model, and license plate number of the vehicle, and phoned the police. An inventory later conducted indicated that ten to twelve boxes of candy had been stolen from the store. The West Memphis Police Inspector, Irwin Shelton, heard the dispatcher reporting the incident at the Save-a-Lot and responded. While en route to the store, Shelton saw a vehicle that fit the reported description, got behind it, and verified that it was the same vehicle. Shelton then turned on the patrol car’s blue lights. However, the car immediately sped away and Shelton radioed in to say that he was in pursuit. Two other officers, Michaeal Waters and Robert Hester, were on duty in Waters’ patrol car when they heard Shelton’s radio transmission and they joined Shelton in the pursuit. The suspects’ vehicle was headed to the last entrance from Broadway Interstate 55, which was closed at the time for construction. Shelton slowed down, allowing Waters to take the lead in the chase, as Shelton’s vehicle was not equipped with bar lights. The officers then followed the vehicle onto the closed portion of the interstate. Hester testified that the closed portion was pitch dark and that the road had recently been grated, causing the cars to stir up dirt and gravel, further hindering visibility. Waters attempted to switch lanes to avoid some of the dust, but hit a concrete barrier and his patrol car flipped. Waters was ejected from the vehicle and suffered severe external and internal injuries. Shelton stopped, found Waters, and attempted to take his pulse, but found he did not have one. Waters died as a result of the incident.
Appellant was found guilty of manslaughter for the death of Officer Waters. According to Ark. Code Ann. section 5-10-104, a person commits manslaughter if
(4) Acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course of and infurtherance of the felony or in immediate flight therefrom:
(A) He or an accomplice negligently cause the death of any person
Ark. Code Ann. § 5-10-104 (emphasis added.) While fleeing by means of a vehicle is usually considered a misdemeanor, under Ark. Code Ann. section 5-54-125, fleeing by means of a vehicle is considered a felony in two circumstances: (1) under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle in such a manner that creates a substantial danger of death or serious physical injury to another person or persons, a Class D felony, or (2) where serious physical injury to any person occurs as a direct result of the fleeing by vehicle, a Class C felony. Ark. Code Ann. § 5-54-125.
When appellant first stole the candy, he committed a misdemeanor. Appellant then fled and drove away in such a dangerous manner on a closed highway that officers were forced into a high speed chase. Those actions constituted a Class D felony, for which he was not charged. Since Officer Waters was injured as a result of the chase, appellant’s actions then constituted a Class C felony, for which he was charged and convicted. Because Officer Waters died as a result of appellant’s actions in continuing to flee, he was charged and convicted of manslaughter, based on section 5-10-104, “in the course and furtherance of that felony (fleeing)”. Appellant argues that fleeing is not an appropriate felony to be used as the basis of his manslaughter charge since the fleeing statute specifically says that “fleeing is a separate offense and shall not be considered a lesser included offense or component offense with relation to other offenses which may occur simultaneously with the fleeing.” Ark. Code Ann. § 5-54-125.
Appellee argues that appellant’s argument is not preserved for our review because he did not object to the imposition of his sentence after the jury returned its verdict. Flowever, the case law cited by appellee to support the notion that some objections can not arise until after the sentencing verdicts is not applicable to this case. The two cases cited by appellee, Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001) and Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), discuss how objections in double jeopardy situations do not arise until after the jury’s verdict because a defendant can bt prosecuted for multiple offenses, whereas certain multiple convictions are barred by the Double Jeopardy Clause. That analysis is clearly distinguishable from the instant case, where appellant made a proper directed-verdict motion alleging that the evidence was not sufficient to sustain a verdict for manslaughter because there was not an appropriate felony to support the manslaughter charge. He properly renewed that motion at the end of the trial, in addition to objecting to a jury instruction based on the same argument. While appellant did not seek relief by a posttrial motion or by requesting a new trial, controlling case law has only required a motion for directed verdict be made at the end of the prosecution’s case, and again at the close of all the evidence, in order for issues argued at the trial court level to be preserved for appellate review. Hence, appellant’s argument was adequately preserved for appellate review.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Hampton, supra; George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004). In reviewing a trial court’s decision to submit a jury instruction, the issue is whether the slightest evidence supports the instruction. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The trial court’s determination will not be reversed absent an abuse of discretion. Gillot v. State, 353 Ark. 294, 107.S.W.3d 136 (2003). We find that the evidence in this case did support the trial court’s decisions to deny appellant’s directed-verdict motion and to give an instruction to the jury regarding manslaughter.
Appellant’s objections, to the denial of the directed-verdict motion and the instruction given to the jury, both turn on whether a defendant can be convicted of manslaughter when the only underlying felony is fleeing. However, the statute defining manslaughter clearly states that the crime of manslaughter is committed when one commits a felony and, in the course of and furtherance of that felony or the flight therefrom, negligently causes the death of another. There is nothing to indicate that only specified felonies will qualify. Rather, any felony will support a conviction for manslaughter.
When reading the manslaughter statute and the fleeing statute together, it may, at first glance, appear that fleeing was not anticipated as being the underlying felony because the statute includes language illustrating that an individual could also be in immediate flight from a felony when the manslaughter occurs. One might pause to question how an individual could possibly be in flight from fleeing. However, read more carefully, one should notice that the manslaughter statute includes a strategically placed or.
(4) Acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course of and in furtherance of the felony or in immediate flight therefrom:
(A) He or an accomplice negligently cause the death of any person
Ark. Code Ann. § 5-10-104 (emphasis added). In the instant case, appellant was convicted of felony fleeing. While appellant was in the course of and in furtherance of that felony, Officer Waters was negligently killed. The instant case was not a situation where a felony occurred, and then the death occurred while appellant was in immediate flight from that felony. The latter situation describes how a defendant could be prosecuted under the manslaughter statute according to the language following the “or.”
While appellant correctly states the content of the fleeing statute, and illustrates that fleeing is to be considered a separate offense and shall not be considered a lesser included
offense or component offense of another crime, appellant is confused about the application of that language. Appellant argues that the fleeing only became a felony because the jury found that serious physical injury, the death of Officer Waters, occurred as a direct result of it, and that appellee then used the same act to convict appellant of manslaughter. Although not specifically on point, the reasoning behind one of Judge Richard Arnold’s opinions is applicable to this situation. See United States v. Johnson, 352 F.3d 339 (8th Cir. 2004). In Johnson, the Eighth Circuit Court of Appeals had to determine if two indictments alleged the same offense. Id. After evaluating Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932), the court held that if the legislature intended that one offense be separately punishable from the other, prosecution on both charges is permissible even when the elements of the two offenses are the same. Id. In the instant case, the manslaughter charge might have arisen from the same events as the felony fleeing, however the legislature clearly intended that fleeing be punishable as a separate offense. Ark. Code. Ann § 5-54-125. Section 5-54-125 was amended by Act 410 of 1995 for the express purpose of making fleeing by means of any vehicle or conveyance a felony offense. Although the language of section 5-54-125 reads that a felony should not be a “component offense,” the intent of the legislature was for a felony to be considered a separate offense in addition to any other offenses that a defendant may have committed. Fleeing is not to merge into a larger crime. Appellant’s conviction for fleeing should not disappear simply because he was also convicted of manslaughter. Appellant’s argument focuses too narrowly on the term “component offense,” without considering the intent of the legislature. The legislative intent was to expand the fleeing statute; therefore, this court’s interpretation is that fleeing can serve as an underlying felony for another offense.
Affirmed.
Hannah, C.J., and Imber, J., dissent. | [
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Tom Glaze, Justice.
This appeal stems from a decision of the Prairie County Circuit Court quieting title to property in appellee Richard Fischer. The property at issue consists of four lots — Lots 3, 4, 5, and 6 — located on Block O in the Wintkers Addition subdivision of DeValls Bluff. On April 20, 2004, Fischer filed a petition to quiet title in the property, alleging that his parents acquired title to the property by warranty deed in 1984. In addition, Fischer alleged that he and his predecessors in title had adversely possessed the land for nineteen years under color of tide. In the petition, Fischer alleged that appellants, John and Sue Thompson claimed an interest in the same property by virtue of a limited warranty deed executed by the Arkansas Land Commissioner on April 24, 2002. Fischer averred that he had discovered that he had not been receiving a property tax statement on the four lots, and that Thompson had, in fact, purchased a tax deed to the lots. Fischer attempted to pay Thompson $325.00 in reimbursement for the property, but Thompson returned the check to Fischer. Fischer then tendered the check to the Prairie County Circuit Court and asked that tide to the lots be quieted and confirmed in him.
Thompson answered, asserting that no valid conveyance of title was ever made to Fischer and his alleged predecessors in title. In addition, Thompson denied that Fischer had adversely possessed the property. Alternatively, Thompson alleged that the last record owner of the property, prior to forfeiture for failure to pay taxes, was an individual named William Curlett, and that no conveyance of the property from Curlett or his heirs existed of record. Further, Thompson noted, neither Fischer nor any party from whom he alleged to have received title had ever paid taxes on the subject property.
After a hearing on September 21, 2004, the trial court entered findings of fact on October 5, 2004. The court found that Fischer did not pay taxes on Block O, Lots 3, 4, 5, and 6; the court also found that Fischer should have known that he was not paying taxes on those parcels. The court further found that Fischer exerted control and possession over the property, although Lots 3 and 4 were overgrown. In sum, based on the testimony, the court determined that Fischer “had been exercising control over Lots 3-6 at various times.” Accordingly, considering the circumstances, the court concluded that Fischer had adversely possessed Lots 3, 4, 5, and 6 of Block O, and that title to those lots should be quieted in Fischer. Thompson filed a timely notice of appeal and now raises two points for reversal. Fischer did not file a brief.
The standards governing appellate review of a case that traditionally sounded in equity are well established. Although this court reviews equity cases de novo on the record, we do not reverse unless we determine that the trial court’s findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). The appellate court reviews both law and fact and, acting as judges ofboth law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. Arkansas Presbytery v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). The appellate court may always enter such judgment as the circuit court should have entered upon the undisputed facts in the record. Id. (citing Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979)).
In his first point on appeal, Thompson asserts that his title, acquired by purchasing the property from the State Land Commissioner at a tax sale, defeated, as a matter of law, Fischer’s claim of ownership based on adverse possession. However, Thompson failed to raise this argument prior to trial, only mentioning it briefly in a post-trial letter to the court ; moreover, in neither its findings of fact nor the judgment confirming title did the trial court rule on this argument. An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). It is well settled that this court does not consider arguments raised for the first time on appeal. Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003); Short v. Westark Community College, 347 Ark. 497, 65 S.W.3d 440 (2002). Where nothing appears in the record reflecting that a particular argument was formulated before the trial court, or that any ruling was given, the appellant has waived review of that issue. See Hickman v. Trust of Heath, House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992). Because Thompson did not present and obtain a ruling on his tax-sale argument in the trial court, the issue is not preserved for this court’s review.
In his second point on appeal, Thompson argues that the trial court erred in finding that Fischer had proven that he adversely possessed the property in question. The establishment of title to real property through adverse possession is governed by both statutes and case law. Ark. Code Ann. § 18-11-106 (Repl. 2003) provides, in relevant part, as follows:
(a) To establish adverse possession of real property, the person, and those under whom the person claims, must have actual or constructive possession of the property being claimed and have ■ either:
(1) (A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property [or]
(2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of title.
(b) The requirements of this section are in addition to all other requirements for establishing adverse possession.
(c) This section shall not repeal any requirement under existing case law for establishing adverse possession but shall be supplemental thereto, and, specifically, this section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.
Thompson concedes that Fischer meets the requirements of § 18-ll-106(a)(2), as Fischer paid taxes on the lots contiguous to Block O, Lots 3-6, for at least seven years. However, because the statutory provisions for establishing title by adverse possession “are in addition to all other requirements” for establishing adverse possession, 5ee§ 18-11 — 106 (b), the payment of taxes on contiguous property, standing alone, is insufficient to establish title in Fischer. Thus, the court also considers those common law factors that must be met to prove adverse possession.
Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973). Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or record title holder before his title is in any way affected by the possession. Id.; Coulson v. Hillmer, 271 Ark. 890, 612 S.W.2d 124 (1981). In order for a claimant to establish ownership to property by adverse possession, that party has the burden of proof to show, by a preponderance of the evidence, possession for seven years. Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979). In addition, the possession must have been actual, open, notorious, continuous, hostile, and exclusive, and it must be accompanied with an intent to hold against the true owner. See Rowe v. Fisher, 239 Ark. 721, 393 S.W.2d 767 (1965); Boyette v. Vogelpohl, 92 Ark. App. 436, 214 S.W.3d 874 (2005).
On appeal, Thompson argues that there was insufficient evidence that Fischer’s occupation of the property was exclusive, continuous, notorious, and undertaken with an intent to hold the property as against the true owner. We agree that Fischer did not prove that his possession of the land was done with an intent to hold the property as against the true owner, arid we reverse the trial court’s ruling on this basis. During the course of the trial, Thompson testified that he had a conversation in 1996 with Fischer’s father, Jack Fischer, regarding a hunting lease on the property; at that time, as the two men were walking around the elder Fischer’s property, Thompson made a remark about the disputed lots. According to Thompson, Jack Fischer replied, “Yes, I don’t own this property in here, but one day I’ll buy it for back taxes. Some other people own it.” Despite the fact that Fischer offered some rebuttal evidence on another matter, Jack Fischer was not recalled to the stand and never disputed Thompson’s testimony.
On appeal, Thompson argues convincingly that this statement indicates not only that Fischer knew he did not own the lots, but also that he did not intend to possess the land adversely to the true owner. Thompson urges that, if Jack Fischer stated that he knew the lots belonged to someone else but intended to acquire the lots at a tax sale, then he did not have the intent to adversely possess the lots, because an adverse possession claimant must intend to claim the land that he is possessing. See Wilson v. Hunter, 59 Ark. 626, 628, 28 S.W. 419, 419 (1894) (“There must be an intention to claim title.”); Dickson v. Young, 79 Ark. App. 241, 85 S.W.3d 924 (2002).
On this issue, the trial court opined that, “[e]ven if Thompson’s claim of Fischer’s statement is true, this does not necessarily defeat Fischer’s claim of adverse possession.” The trial court went on to cite to other evidence it believed supported a finding of adverse possession. However, the trial court appears not to have considered that a party claiming title to land by adverse possession must prove all of the elements by a preponderance of the evidence. In ruling in Fischer’s favor, the trial court erroneously discounted the undisputed evidence disproving this element. Because Fischer did not prove that he intended to claim the land adversely to the true owner, he did not satisfy each of the common-law elements, and the trial court erred in finding in Fischer’s favor.
Reversed.
Hannah, C.J., Brown and Imber, JJ., concur.
Thompson did not raise this argument in his answer to Fischer’s petition to quiet title, nor did he present the issue to the trial court during the course of the trial, either through his witnesses or through argument to the court after the testimony was completed.
Section 18-11-106 was amended by Act 84 of2005, which inserted a new subsection (b) (regarding persons who are exempt from paying ad valorem taxes) and renumbered the subsequent subsections accordingly; however, the 2005 amendments are not relevant to the facts of this case. | [
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Donald L. Corbin, Justice.
Appellants Alvin and Rebecca Dwiggins appeal the order of the Clark County Circuit Court granting the motion for summary judgment filed by Appellee Elk Horn Bank and Trust Company. The Dwigginses also appeal the circuit court’s order awarding insurance proceeds to the Bank. On appeal, the Dwigginses raise the following arguments: (1) the Hot Spring County Circuit Court erred in determining that venue was appropriate in Clark County and in transferring the case; (2) the Clark County Circuit Court erred in granting summary judgment on their claims for fraud and slander of title, because the proof submitted raised issues of fact warranting a jury trial; and (3) the Clark County Circuit Court erred in granting summary judgment on their claim for breach of contract and in awarding certain insurance proceeds to the Bank. The Bank has moved this court to dismiss the instant appeal, arguing that the Dwigginses failed to timely file a notice of appeal. As this appeal presents an issue of first impression regarding the application of the bankruptcy stay to this court’s filing deadlines, this court has jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b)(l). We agree with the Bank that the Dwigginses failed to timely file their notice of appeal and, thus, grant its motion to dismiss.
The present case stems from a loan transaction between the Dwigginses and the Bank. The Dwigginses borrowed $420,000.00 from the Bank, and on May 25, 2001, they secured the note with a mortgage on real property located in Clark County. The mortgage included the Dwigginses’ residence and a peach orchard. A subsequent corrected mortgage listed the same property in its description. The Dwigginses later contacted the Bank and requested that it release the mortgage on their residence, so that they could use it as security for a loan with another financial institution. On May 13, 2002, the Bank executed a limited release that cleared the title on the Dwigginses’ residence. Thereafter, the Dwigginses used the residence as security and were able to obtain another loan.
On or about January 9, 2002, a fire that resulted from the negligence of a third party caused damage to the Dwigginses’ peach orchard. The Dwigginses negotiated a settlement with the negligent third party and obtained a check from the third party’s insurance company in February 2003 for $135,000.
The Dwigginses had a payment due to the Bank on March 1, 2003, but they failed to make this payment. On March 24, 2003, the Dwigginses then filed suit against the Bank in Hot Spring County Circuit Court. In their complaint, the Dwigginses alleged that the Bank committed fraud in obtaining the mortgage on their residence and breached its duty of acting fairly and in good faith. They further alleged that the Bank slandered the title to their property through the mortgage on their residence because it was obtained through fraud. The Dwigginses averred that they sustained damages in the amount of $75,000 as a result of the Bank’s conduct.
The Bank began foreclosure proceedings against the Dwigginses in Clark County Circuit Court on April 1, 2003. The Bank then moved the Hot Spring County Circuit Court to transfer venue, arguing that Clark County was the proper venue, as the disputed property was located in Clark County, the Dwigginses resided in Clark County, and the Bank’s headquarters were located in Clark County. The Hot Spring County Circuit Court determined that venue was appropriate in Clark County and granted the Bank’s motion to transfer. Once the Dwigginses’ suit was transferred to Clark County, the Bank filed a motion to consolidate the Dwigginses’ action with the Bank’s action for foreclosure. The Dwigginses did not object to the Bank’s motion, and the two cases were subsequently consolidated.
On December 30, 2003, the Bank filed a motion for partial summary judgment, arguing that the trial court should award the $135,000 in insurance proceeds to it and dismiss the Dwigginses’ claims for deceit, bad faith, and slander of title. In support of its motion, the Bank averred that there were no issues of material fact to be resolved and that it was entitled to summary judgment as a matter of law. The Dwigginses responded that the proof submitted did raise issues of material fact and, thus, summary judgment was not appropriate.
In an order entered on April 12, 2004, the trial court granted the Bank’s motion for partial summary judgment. In so doing, the court determined that the Dwigginses’ claim for fraud centered on the Bank’s alleged promise to them that their residence would not be mortgaged as security for the loan to them. According to the court, however, the deposition testimony in this case failed to demonstrate that the Bank made any statements regarding the status of the Dwigginses’ residence. The court additionally determined that even if the Bank had made any such statement it would have been nothing more than a promise and not a representation that would serve as a basis for the tort of deceit. Because the Dwigginses failed to submit proof of an essential element of their claim for deceit, the trial court found that summary judgment was appropriate. The court further noted that the Dwigginses’ deceit claim also rested on the allegation that the Bank obtained the mortgage on their residence by inducing them to sign a corrected mortgage. Again, the court determined that the Dwigginses failed to submit proof in support of this allegation in their response to the Bank’s motion for summary judgment. The court further noted that the Bank submitted the original and corrected mortgages and that both included the Dwigginses’ residence among the mortgaged properties.
As to their claim for slander of title, the court held that while the Dwigginses claimed that they were harmed by the Bank’s mortgage on their residence because they were refused a loan for their 2001 crop, the Dwigginses failed to identify a particular lender, the date when they applied for such a loan, or the date when their application was denied. In short, according to the trial court, the Dwigginses submitted no proof to support this allegation once the Bank moved for summary judgment. Finally, the trial court determined that the Dwigginses submitted no proof of any type of damages that directly resulted from the Bank’s alleged slander of title.
The court then addressed the Bank’s motion with regard to the insurance proceeds and determined that the monies should be applied to the Dwigginses’ principal indebtedness to the Bank. The trial court found that the controlling law on this issue was Arkansas’ Uniform Commercial Code. The trial court then reasoned that the mortgage provision relied on by the Dwigginses regarding the distribution of insurance proceeds was not controlling, because it was limited to insurance maintained by the mortgagors, not insurance maintained by third parties.
Once the trial court granted the Bank’s motion for partial summary judgment, the only claim remaining to be resolved was the Bank’s foreclosure action. On April 28, 2004, the Dwigginses entered into an Agreed Decree of Foreclosure. Thereafter, on April 28, 2004, the Dwigginses filed a Notice of Bankruptcy with the circuit court. No further action was taken in the circuit court until September 20, 2004, when the Dwigginses filed a notice of appeal from the trial court’s April 12, 2004 order. On December 16, 2004, the Dwigginses then attempted to lodge the record with the Clerk of this court, but the Clerk refused to accept it on the basis that it was outside the allowable time period for the filing of a record. The Dwigginses subsequently filed a motion for rule on the clerk. This court conditionally granted the motion on December 22, 2004, and the parties were ordered to brief the timeliness issue and submit it with their briefs on the merits.
As a preliminary matter, this court must determine whether the present appeal is properly before us. The Bank has filed a motion to dismiss, arguing that the Dwigginses’ notice of appeal was not timely filed and, thus, deprives this court of jurisdiction over the present appeal. According to the Bank, the Dwigginses’ argument that the time in which they were required to file their notice of appeal was stayed by their filing for bankruptcy protection is without merit. Specifically, the Bank asserts that 11 U.S.C. § 362 (Supp. II 1978), which provides for an automatic stay, is not applicable in the present case, because the Dwigginses are appealing an order dismissing an action that they as debtors initiated against the Bank as a creditor. The Bank further avers that even if the bankruptcy stay is applicable, the Dwigginses failed to timely file their record because it was not filed within the time allowed under Ark. R. App. P. - Civ. (5)(b)(E)(2).
The Dwigginses respond that section 362 is applicable because once the circuit court consolidated their action with the Bank’s foreclosure action, the case became one in which the Bank assumed the role as a creditor pursuing an action against them as debtors. The Dwigginses further aver that just as the time to file the notice of appeal was extended by the bankruptcy stay, so was the time to file the record. Thus, according to the Dwigginses, their filing of the record within ninety days of their filing of their notice of appeal was timely.
The key issue to be resolved in the instant action is whether or not the automatic stay provision of section 362 is applicable in this case, because if the stay is not applicable, then the Bank is correct in its assertion that the notice of appeal was not timely filed. Section 362 provides as follows:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301,302, or 303 of this title... operates as a stay, applicable to all entries, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.
11 U.S.C. § 362(a)(1) (emphasis added).
In Merchants & Farmers Bank of Dumas, Ark. v. Hill, 122 B.R. 539, 541 (E.D. Ark. 1990), the district court of Arkansas discussed the application of section 362 and stated:
The statutory language, which refers to actions “against the debtor,” and the policy behind the statute, which is to protect the bankrupt’s estate from being eaten away by creditors’ lawsuits and seizures of property before the trustee has had a chance to marshal the estate’s assets and distribute them equitably among the creditors, indicate that section 362 operates only to stay proceedings against the debtor, and not actions brought by the debtor prior to the bankruptcy petition which inure to the benefit of the estate. [Internal citations omitted.]
This case was subsequently relied on by this court when it addressed the application of the bankruptcy stay in Pennington v. Harvest Foods, Inc., 326 Ark. 272, 929 S.W.2d 162 (1996). There, this court held that when the debtor is the appellant, a stay is required if the action was originally brought against the debtor. See also Farley v. Henson, 2 F.3d 273 (8th Cir. 1993); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). The court in Pennington, citing to Hill, 122 B.R. 539, further explained that when a debtor counterclaims against the plaintiff in initial proceedings, the counterclaim is not stayed by section 362, because the proceeding is not “against” the debtor. Noting that all of the authority of which it was aware held that the initial proceedings, and not the appeal, constitute the reference point for determining whether the action is one “originally brought” against the debtor, the court held that Harvest Foods was not entitled to a stay of its appeal because it, as the debtor, was the party who originally brought the action. See also Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3d Cir. 1982) (holding that whether a case is subject to the automatic stay must be determined at its inception, and such a determination does not change depending on the particular stage of litigation at which the filing of the bankruptcy petition occurs).
This court’s decision in Pennington is in accord with the great weight of authority, both in federal and state courts, holding that the automatic stay provision is not applicable in cases where the debtor is the party that originally brought the action. In Carley Capital Group v. Fireman’s Fund Ins. Co., 889 F.2d 1126 (D.C. Cir. 1989), the court, relying in part on the legislative objectives underlying the stay provision, held that section 362 clearly applies only in actions against the debtor and does not address actions brought by the debtor that would inure to the benefit of the bankruptcy estate. See also Roberts v. Commissioner of Internal Revenue, 175 F.3d 889 (11th Cir. 1999); Martin-Trigona v. Champion Fed. Sav. & Loan Ass’n, 892 F.2d 575 (7th Cir. 1989); Freeman v. Commissioner of Internal Revenue, 799 F.2d 1091 (5th Cir. 1986).
One state court that has addressed this issue is California. In Shah v. Glendale Fed. Bank, 44 Cal. App. 4th 1371, 52 Cal. Rptr. 2d 417 (1996), the California Court of Appeals held that it was not precluded from disposing of an appeal where the debtor initiated the lawsuit in the lower court. Applying the rules of statutory construction enunciated by the United States Supreme Court in Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990), the court held that the language of section 362 was clear, and there was no doubt as to the legislative intent that the stay provision did not apply in cases where the debtor initiated the lower-court action. Extending this rationale, the California court held that an appeal that is a continuation of an action originally brought by the debtor is not subject to the automatic stay provision of section 362. See also Scarborough v. Duke, 532 So.2d 361 (La. Ct. App. 1988); and Steeley v. Dunivant, 522 So.2d 299 (Ala. Civ. App. 1988).
As demonstrated by our decision in Pennington, we agree with those courts that have held that section 362 is only applicable to proceedings against the debtor, both in the lower court and on appeal. The only remaining issue to be resolved in determining the applicability of the bankruptcy stay in the instant appeal is what, if any, effect the order of consolidation had on the nature of the proceedings at issue here. As previously stated, the Bank asserts that this is not an action against the debtor, because the Dwigginses are appealing from an action that they originally initiated against the Bank. To the contrary, the Dwigginses argue that the present appeal is a continuation of an action against them, because once the trial court consolidated their suit with the Bank’s foreclosure action, the case became one action against them by the Bank.
Consolidation of multiple actions is provided for in Ark. R. Civ. P. 42(a) when the actions involve a common question of law or fact pending before the court. Consolidation exists for convenience and economy in judicial administration. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998); Hunter v. McDaniel Bros. Constr. Co., 274 Ark. 178, 623 S.W.2d 196 (1981). This court has recognized that “[c]onsolidation of cases ‘does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.’ ” Knowlton v. Ward, 318 Ark. 867, 879, 889 S.W.2d 721, 728 (1994) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)). In Johnson, the United States Supreme Court held that consolidation of actions did not alter the nature of the attack. Thus, applying our holding in Knowlton and the Supreme Court’s holding in Johnson, we cannot accept the Dwigginses’ argument that the order of consolidation in this, case somehow changed the procedural posture of their suit against the Bank. Simply put, the action which is the subject of this appeal was one initiated by the debtors and, thus, the bankruptcy stay is inapplicable.
Our holding in this regard is supported by a decision of the Ninth Circuit Court of Appeals in a similar case. In Parker v. Bain, 68 F.3d 1131 (9th Cir. 1995), the debtor initiated litigation by seeking a declaratory judgment. The creditor, in turn, counterclaimed against the debtor. In arguing that the bankruptcy stay did not apply, the creditor urged the court to view the dispute as a single proceeding brought by the debtor. The court rejected the creditor’s argument, stating:
AH proceedings in a single case are not lumped together for purposes of automatic stay analysis. Even if the first claim filed in a case was originaUy brought against the debtor, section 362 does not necessarily stay aU other claims in the case. Within a single case, some actions may be stayed, others not. Multiple claim and multiple party Htigation must be disaggregated so that particular claims, counterclaims, cross claims and third-party claims are treated independently when determining which of their respective proceedings are subject to the bankruptcy stay.
Id. at 1137 (quoting Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204-05 (3d Cir. 1992)). The court ultimately concluded that while the debtor’s appeal of a judgment in favor of the creditor was stayed, that portion of the appeal involving the dismissal of the debtor’s claims against the creditor was not stayed.
In sum, the present appeal is from an action filed by the Dwigginses against the Bank. It is separate from any action brought by the Bank against them. The provision of section 362 is not applicable and did not serve to toll the time the Dwigginses had to file their notice of appeal. Accordingly, because the notice of appeal in this case was filed beyond the thirty days allowed under our rules, it was not timely, and this court is without jurisdiction to entertain the present appeal. The Bank’s motion to dismiss is granted.
The Bank filed an amended complaint for foreclosure adding Chambers Bank as an additional defendant, as Chambers was listed as a payee on the $135,000.00 insurance-proceeds check. | [
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Betty C. Dickey, Justice.
The appellants, collectively referred to as the “Tucker” and “Moore” families, challenge, inter alia, the circuit court’s award of attorney’s fees in the amount of $25,000 to appellee Regions Bank upon the dismissal of the appellants’ counterclaim for breach of ground leases. In awarding the fees, the circuit court’s order included conditional language. Specifically, the order provided the court the option of either awarding additional fees up to $12,239.50, depending upon the outcome of the appeal, or awarding the entire $12,239.50 if the case were not appealed. Because the order failed to resolve Regions’ claim for attorney’s fees by including contingencies based upon action that might be taken by the appellate court or the appellants, we dismiss this appeal pursuant to Arkansas Rule of Civil Procedure 54(b).
The assessment of fees arises from an action involving two ground leases executed by the Bank through its predecessors, one parcel from the Tucker family and the other from the Moore family, located at West Third and Louisiana in Little Rock. The Bank, in accordance with its leases, constructed its headquarters, consisting of two buildings. The building located on the Moore parcel included a bank lobby and offices, while the building on the Tucker parcel encompassed a drive-through and offices. Though the columns and frames of the buildings are physically and structurally separated, the exterior of the buildings are connected, and share common electrical, HVAC and plumbing systems, elevators, restrooms, and stairwells. Therefore, the connected buildings (preexisting structure) were utilized as if they were one building.
The Bank eventually acquired leasehold interests in land adjoining the Tucker and Moore parcels; the Bank constructed a third building on the adjoining parcel, with an overpass connecting the new building to the preexisting structure. In 1975, the Bank conveyed ownership of the banking facilities and subleased the ground leases to Combined Communications Corporation, the owner of appellee KARK T.V., Inc. KARK utilized the buildings until the subleases expired on June 30, 2002, and the Bank’s ground leases expired on July 31, 2002.
In 2002, just prior to the expiration of the leases, the Tuckers and Moores demanded that each receive separate buildings commensurate with their property lines. The Bank refused to comply with the demand and filed suit as a declaratory action on August 15, 2002, seeking judgment that a license or easement exists between all structures, requiring all owners to share facilities common to those structures. The Tuckers and Moores filed a counterclaim, arguing that the Bank was obligated by the terms of the leases to deliver to each of them a building that was separate and independent of the others.
On December 19, 2003, after partial summary-judgment motions had been filed by both parties, the circuit court determined that the Bank was not required to separate the preexisting structure and dismissed the appellants’ counterclaim. The court further declined to make a determination on the Bank’s easement claim; instead, it encouraged the parties to reach an acceptable agreement, and if one could not be achieved, it instructed the parties to bring the issue back to the court for relief.
On January 14, 2004, the Tuckers and Moores requested that the circuit court resolve the easement dispute because the parties were unable to reach an agreement. The court entered a Rule 54(b) certification on January 15, 2004, which referenced the December 19, 2003, order. On February 2, 2004, the court entered a supplemental order, finding that an easement existed among the common structures and that each owner would continue using the common building features in the same manner as they were prior to the expiration of the ground leases. In conjunction with the order, the court entered a certificate of finality pursuant to Rule 54(b) and stated that the supplemental order, along with its order of December 19, 2003, resolved both the appellants’ separation claims and the Bank’s easement claim.
On February 17, 2004, the Bank filed a motion for attorney’s fees under Rule 54(e) and Ark. Code Ann. § 16-22-308, requesting $37,239.50 in compensation. On June 1, 2004, the circuit court found the request to be reasonable; at that time, the court awarded only $25,000, but stated that it might be willing to award the remaining $12,239.50, depending upon the outcome of an appeal. Furthermore, the court stated that if the Tuckers and Moores chose not to appeal, it would award the remaining fees to the Bank.
The Tuckers and Moores raise the following points on appeal: (1) the circuit court erred in awarding fees because the motion for attorney’s fees was not filed within fourteen days of the December 19, 2003, order, as required under Ark. R. Civ. P. 54(e)(2); (2) in the alternative, the court erred in awarding fees because the motion for attorney’s fees was not filed within fourteen days of the February 2, 2004, supplemental order; (3) Ark. Code Ann. § 16-22-308 does not authorize an award of attorney’s fees in an action for a declaratory judgment; (4) even if attorney’s fees were appropriate, they were erroneously awarded because they were inflated; (5) the court abused its discretion in awarding fees that were conditioned, in part, upon the outcome of this appeal; and (6) the assessment of fees resulted in an inequitable outcome.
As earlier indicated, the circuit court’s order awarding attorney’s fees is not an appealable order pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Rule 54(b) provides that when multiple claims or parties are involved in an action, the circuit court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties. If the circuit court makes such a determination, it must execute a Rule 54(b) certificate, which shall set forth the factual findings upon which the determination to enter final judgment is based. See Ark. Rule Civ. P. Rule 54(b)(1) (Repl. 2005). Absent the executed certificate, a judgment 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 parties. See Ark. R. Civ. P. 54(b)(2).
This court has said many times that the failure to comply with Rule 54(b) and to adjudicate all claims against all parties is jurisdictional and renders the matter not final for purposes of appeal. See, e.g., Corbit v. State, 334 Ark. 592, 976 S.W.2d 927 (1998); Hodges v. Huckabee, 333 Ark. 247; 968 S.W.2d 619 (1998); Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996). Because a violation of Rule 54(b) relates to the subject-matter jurisdiction of this court, we must raise the issue on our own. Hodges v. Huckabee, supra; Tucker v. Lake View Sch. Dist. No. 25, supra.
This case is analogous to Corbit v. State, supra, where this court stated that, as a general rule, a conditional order, becoming final upon contingencies, which may or may not occur, is not a final appealable order. There, the defendant was arrested after he gave marijuana to law enforcement officers in exchange for $100.00 in cash. Following his arrest, the officers seized $1,810.00 in cash, a 1987 GMC truck, various firearms, and other items. During a forfeiture hearing of the seized items, the defendant argued that $1,710.00 of the cash and the truck were not subject to forfeiture. He stated that the money belonged to the owner of the store where the drug sale took place, and the truck belonged to his father, who was unaware that his truck was being used to transport drugs. The circuit court ordered the $1,710.00 to be forfeited, with the firearms and other items subject to forfeiture as substitute assets in the place of the truck. The State was ordered to hold the substituted assets, and, “in the event the defendant is convicted,” the assets would be ordered forfeited. In dismissing the appeal, we held that the circuit court failed to comply with Rule 54(b), stating that “[i]t is that contingent aspect of the order that robs it of finality and requires dismissal of the appeal.”
In the instant case, the circuit court’s order failed to resolve the Bank’s claim for attorney’s fees and provides contingencies based upon action taken by the appellate court or by the Tuckers and Moores. The relevant language of that order is:
The Plaintiff has submitted a request for an award of attorney’s fees in the amount of $37,239.50. The Court finds that this request is reasonable and that the Plaintiff has well documented its claim for fees. However, this case raised novel issues that will ultimately be resolved at the appellate level. At this time, the Court will award an attorney’s fee in the amount of $25,000.00. The Court may be willing to award the remaining $12,239.50 depending on the outcome of the appeal. If the defendants do not prosecute an appeal, the Court will award the additional amounts upon submission of proof that the matter has not been prosecuted. (Emphasis added.)
In light of this conditional language, we conclude that the circuit court’s order is not appealable. A contrary holding would require this court to speculate as to the finality of the Bank’s claim for attorney’s fees, which we will not do. See, e.g., Hodges v. Huckabee, supra.
Appeal dismissed without prejudice.
Glaze, J., not participating.
The leases were originated by Peoples National Bank of Little Rock, which in turn was succeeded by First National Bank, First Commercial Bank, and Regions Bank, respectively. These entities will be hereinafter referred to as “the Bank.”
The buildings were designed to be physically and structurally separated. Physically, the buildings are separated by property lines. Structurally, the buildings contain two sets of columns (one set on each side of the common boundary) and frames (through the footings, foundation, floor framing and roof).
Notably, the certification did not follow the judge’s signature on the December 19, 2003, order. | [
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Jim Hannah, Chief Justice.
Appellant Everett Welch entered a negotiated guilty plea to one count of possession of methamphetamine with intent to deliver and was sentenced to twelve years’ imprisonment by the Howard County Circuit Court. In accordance with Ark. R. Crim. P. 24.3(b), Welch’s plea was conditional; therefore, he reserved the right to appeal from the circuit court’s denial of his motion to suppress evidence. For reversal, Welch argues that the circuit court erred (1) in determining that he consented to a search of his vehicle, and (2) in fading to suppress evidence stemming from the search of his vehicle where no probable cause or reasonable suspicion existed for the search. We find no error and, accordingly, we affirm. This case is an appeal involving the interpretation of the Arkansas Constitution; our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l).
Facts
The facts in this case are taken from the affidavit for Welch’s arrest, as well as testimony given at the suppression hearing. On March 6, 2004, Deputy Brian Cogburn of the Howard County Sheriffs Department made a traffic stop of a vehicle that he had observed speeding on Highway 70, west of Dierks. Radar indicated that the vehicle, driven by Welch, was traveling at seventy-one miles per hour in a fifty-five mile-per-hour zone. Shortly thereafter, Cogburn was joined at the traffic stop by Dierks police officers Jason Icenhower and Gary Simmons. Cogburn informed Welch of the reason for the stop. He then asked Welch if he could take a look inside the vehicle, and Welch agreed.
Cogburn looked inside the vehicle and noticed that a dashboard panel was loose. According to Cogburn, the panel “had . . . been popped out of the socket where it fits.” Cogburn shined his flashlight behind the loose panel and saw a white plastic bottle. He retrieved the bottle, opened it, and discovered six bags of what he thought to be methamphetamine and one bag of what he thought to be heroin.
Welch was charged with one count of possession of methamphetamine with intent to deliver. He filed a motion to suppress, arguing that the search of his vehicle was not a valid consensual search, in that the police officers obtaining the alleged consent did not do so in writing and did not advise him that he had a right to refuse consent to the search. He also argued that the search of the vehicle exceeded the scope of consent given. Finally, Welch argued that the evidence recovered from the search should be suppressed because the search was not conducted pursuant to the issuance of a search warrant, and that probable cause or reasonable suspicion did not exist for such a search, as required by the United States Constitution, the Arkansas Constitution, and the Arkansas Rules of Criminal Procedure. The circuit court denied Welch’s motion, and he now brings this appeal.
In reviewing the circuit court’s denial of a motion to suppress, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004).
We begin by addressing Welch’s arguments concerning consent to search. An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search. Ark. R. Crim. P. 11.1(a). The State has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R. Crim. P. 11.1(b). The United States Supreme Court has held that the test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 248-249 (1973)).
Welch first contends that the alleged consent to search was not valid because the officers never mentioned the word “search” or the words “consent to search” when asking for permission to look inside the vehicle. He argues that because the officers did not specifically ask for consent to search, the State cannot meet its burden of proving by clear and positive evidence that the consent was voluntary. At the suppression hearing, Cogburn testified that prior to conducting the search, he asked Welch if he could “look” inside the vehicle. On cross-examination, the following colloquy took place:
Defense Counsel: You never asked him if you could search the vehicle, did you?
Cogburn: I don’t —
The Court: What was the question?
Defense Counsel: I asked him if he ever asked Mr. Welch if he could search his vehicle.
Cogburn: I can tell you exactly what I asked.
Defense Counsel: Isn’t that what you just said, you asked if you could look —
Cogburn: The same exact words.
Defense Counsel: Okay. So you never asked him for permission to search his vehicle?
Cogburn: I asked him if he had any alcohol, firearms or drugs inside his vehicle. He said no. And I said, “Do you mind if I look? That was my exact words.
Defense Counsel: Okay. And my question is to you: Did you ever ask him for permission to search the vehicle?
Cogburn: I consider that asking for permission, yes, sir.
* * *
As noted above, Cogburn testified that he requested that he be allowed to look inside the vehicle. Welch’s testimony at the hearing reveals that he consented to allow Cogburn to look inside the vehicle. After obtaining consent, Cogburn looked inside the vehicle and found the plastic bottle. We find no merit in Welch’s assertion that his consent to search was not voluntary because he agreed only to allow Cogburn to look inside the vehicle.
Welch next argues that even if we find that his consent was valid, the search of his vehicle exceeded the scope of his consent. Pursuant to Rule 11.3 of the Arkansas Rules of Criminal Procedure, a search based on consent shall not exceed, in duration or physical scope, the limits of the consent given. At the suppression hearing, Welch testified that Cogburn asked him if he could look inside the vehicle for a gun. In response to the request, Welch said, “I told him that I guess you can look for a gun, but I don’t have no gun, and I stepped out of the vehicle. . . .” In contrast, both Cogburn and Dierks police- officer Simmons testified that Cogburn asked for consent to search the vehicle for alcohol, drugs, and guns, and that Welch consented to their requested search. After hearing this testimony, the circuit court determined that Welch consented to a search of his vehicle. In light of this finding, it is clear that the circuit court rejected Welch’s argument that he placed a limitation on what the officers could search. It is apparent that the circuit court found the testimony of the officers to be more credible than the testimony of Welch. As we recently stated in State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005), this court has never wavered from its longstanding rule that it is the province of the trial court, not this court, to determine the credibility of witnesses.
Even assuming Welch consented only for the specific purpose of searching for a gun, his argument is still unavailing. Welch does not contend that he placed a limit on what parts of the' vehicle the officer could search. Rather, he appears to suggest that he can place a limit on the type of contraband seized as a result of a consensual search. We find no merit in this argument.
Welch next argues that the alleged consent to the search of his vehicle was in violation of article 2, § 15 of the Arkansas Constitution because the officers did not inform him that he had a right to refuse consent. In support of this argument, Welch cites State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), where police officers obtained consent to search a home by means of the knock-and-talk procedure.
This court has held that the knock-and-talk procedure is not per se violative of the Fourth Amendment to the United States Constitution. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). However, in Brown, this court held that, under article 2, § 15 of the Arkansas Constitution, officers who utilize the knock-and-talk procedure are required to inform the home dweller that he or she has the right to refuse consent to the search. Brown, 356 Ark. at 474, 156 S.W.3d at 732. Welch argues here, as he did below, that Brown should apply to the instant case, and that this court should require officers to inform a citizen that he or she has a right to refuse consent to the search of a vehicle. The circuit court rejected Welch’s argument, finding that the holding in Brown was confined to a search of the home and did not extend to the search of the vehicle. We agree with the circuit court’s finding. Our holding in Brown was specific: “We hold that the failure of [the officers] ... to advise [appellant] that she had the right to refuse consent to the search violated her right. . . against warrant-less intrusions into the home, as guaranteed by Article 2, § 15, of the Arkansas Constitution.” Brown, 356 Ark. at 474, 156 S.W.3d at 732 (emphasis added). In the instant case, Welch provides no authority or convincing argument to cause us to extend the holding in Brown to the search of a vehicle.
In sum, we agree with the circuit court’s finding that Welch consented to a search of his vehicle. And, as previously stated, we agree that the holding in Brown does not extend to the search of a vehicle.
We now turn to Welch’s remaining arguments on appeal. Welch argues that the search of his vehicle was unreasonable because it was not supported by probable cause or reasonable suspicion and the search did not fall under an exception to the warrant requirement. The State contends that the search did fall under an exception to the warrant requirement, in that it was supported by Welch’s consent. The State is correct. Further, we agree with the State’s contention that the validity of the consent to search is related neither to the existence of probable cause or reasonable suspicion, nor to the absence of a warrant. Neither probable cause nor reasonable suspicion is necessary in order for an officer to request consent for a search. See Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999).
Additionally, Welch argues that the traffic stop was unreasonable due to the length of his detention. And, finally, Welch appears to argue that the search was unreasonable because it was unrelated to the original purpose of the stop or, likewise, because the stop preceding it was pretextual. Because Welch failed to raise these arguments in his motion to suppress or during the suppression hearing, we will not consider them for the first time on appeal. See, e.g., Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). Based on the totality of the circumstances, we hold that the circuit court did not err in denying Welch’s motion to suppress.
Affirmed. | [
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M. MICHAEL KINARD, Judge
| Beth’s Bail Bonds, Inc. (BBB), appeals from the bond-forfeiture judgment entered against it on May 4, 2015. On appeal, BBB contends that the judgment should be reversed due to failure to comply with the bond-forfeiture statute. We affirm.
BBB wrote a bail bond in favor of Billy Mac Harris on April 10, 2013. Harris failed to appear for court on July 22, 2013. On that same date, the trial court and circuit clerk issued an order to show cause and a summons ordering BBB to appear on October 14, 2013, to show cause why the bond should not be forfeited due to Harris’s failure to appear. The parties agree that, for unexplained reasons, the case was not called up on October 14, 2013, and the show-cause hearing was never held.
On August 19, 2014, notice was mailed to Harris ordering him to appear for a “report/status” hearing in his case on September 4, 2014. The notice was returned, marked | {.“return to sender,” “moved left no address,” and “unable to forward.” On September 4, 2014, Harris failed to appear. The trial court entered an order to show cause, and the circuit clerk issued a summons for BBB to appear on December 8, 2014.
BBB filed a motion to dismiss the bond forfeiture, and the show-cause hearing was reset for May 4, 2015. David Viele,- an agent for BBB, testified that he took Harris into custody on May 18, 2014, and tried to surrender him to the jail, but he was told there was no warrant for Harris. Viele did not know if Harris had received notice of his court date. Viele said that BBB’s license had been revoked since October 2014, so he had been unable to look for Harris since then. David Cannon, Harris’s former attorney, said that he received notice of Harris’s September 4, 2014 court date, and his office would have sent notice to Harris at his address on file. The trial court entered judgment forfeiting BBB’s bond of $10,000. BBB timely appealed.
BBB argues that the judgment should be reversed because Harris was not lawfully required to appear on September 4, 2014, since the notice sent to Harris was returned undelivered. Arkansas Code Annotated section 16-84-207(a) (Supp.2015) provides that if a bail bond is granted by a judicial officer, it shall be conditioned on the defendant’s appearing for trial, surrendering in execution of the judgment, or appearing at any other time when his or her presence in circuit court may be lawfully required under Rule 9.5 or Rule 9.6 of the Arkansas Rules of Criminal Procedure, or any other rule.
It is well settled that an appellant must raise and make an argument at trial in order to preserve it for appeal. First Arkansas Bail Bonds, Inc. v. State, 373 Ark. 463, 284 S.W.3d 525 1,(2008). BBB’s argument is not preserved because it was not raised below at the show-cause hearing or in BBB’s motion to dismiss. Furthermore, BBB has offered no convincing argument or citation to authority for its claim that the notice sent to Harris did not comply with the statute. Our courts do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001).
To the extent BBB argues that the judgment should be reversed because the State failed to pursue the original forfei ture proceeding, this- argument has no merit. In compliance with Arkansas Code Annotated section 16-84-207(b),' a summons was issued to BBB immediately after Harris failed to appear on both occasions — July 22, 2013, and September 4, 2014. The show-cause hearing was held based on the second failure to appear, and the bond was forfeited as a result. BBB presents no citation to authority or convincing argument in support of its claim that the proper procedures were not followed.
Affirmed.
Glover and Hoofman,.JJ., agree. | [
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ROBERT J. GLADWIN, Chief Judge
hln this termination-of-parental-rights case, both parents, in separate briefs, appeal the Randolph County Circuit Court’s order of August 11, 2015, terminating their' parental rights and granting to appellee Arkansas Department of Human Services (DHS) the power to consent to adoption; Appellants Raymond Vail and Samanthia See both argue that termination of their parental rights was not in the .child’s best interest. Raymond also contends that the trial court erred in determining that DHS proved a statutory ground for terminating his parental rights. We affirm.
I. Statement of Facts and Procedural History
A petition for emergency custody and dependency-neglect was filed by DHS on April 7, 2014, alleging that Samanthia and Raymond were the parents of S.S., born April 7, 2013; Samanthia had custody; and Raymond was the legal/putative father. The attached affidavit of the DHS caseworker stated that a protective-services case had been opened on | June 26, 2013, when Samanthia left S.S. alone for three hours and failed d drug screen for THC by diluting the specimen with hot water.' The case was closed- on November 7, 2013, after services, including parenting clássés, had been provided. An emergency' occurred on April 3, 2014, when Samanthia admitted to not feeding S.S. until after 2:00 p.m., S.S. had, a severe diaper rash that had gone untreated, and Samanthia had her roommate,. Daniel Honeycutt, caring for S.S. Honeycutt had threatened suicide days prior, and Samanthia had refused to take a drug screen for DHS. A seventy-two-hour hold was taken on S.S. due to the maltreatment and risk of serious harm.
A probable-cause order was filed on April 8, 2014, finding probable cause that the emergency conditions that necessitated removal of custody from Samanthia continued and that S.S. should remain in DHS custody. DHS was to develop an appropriate case plan and provide sendees. The parents were ordered to. view “The Clock is Ticking” video; attend and complete parenting classes; submit to random drug screens, a drug-and-alcohol assessment, and a psychological evaluation; obtain and maintain sufficient* income to support the family and safe, clean, and stable housing; permit DHS access to their home; regu larly attend visits; notify DHS if transportation was needed; and keep DHS informed of correct telephone numbers and addresses. The order also stated that Raymond should establish paternity.
An adjudication order was filed on May 20, 2014, and the circuit court found that DHS had been involved with the family since May 28, 2013, and services, including | ^parenting classes, home visits, and random drug screens had been provided. These services did not prevent removal because an emergency developed on April 3, 2014, as outlined above. The circuit court found by a preponderance of the evidence that S.S. was dependent-neglected due to Samanthi'a’s environmental and medical neglect. DHS remained the custodian, and the goal of the case was reunification with a parent. The concurrent plan was adoption/guardianship/permanent custody. All prior orders remained in place.
A review order was filed on September 30, 2014, and custody remained with DHS. Raymond was adjudicated to be the father of S.S., and the goal of reunification remained. The circuit court found that Sa-manthia had been compliant in completing parenting classes, viewing the video, and completing the psychological and drug- and-alcohol assessments and outpatient substance-abuse counseling. She had attended counseling at Mid South, submitted to random drug screens, attended weekly supervised visitations, and maintained a home. However, Samanthia was not compliant in that she tested positive for THC when she performed the drug-and-alcohol assessment; she missed a visit on August 21, 2014; and she did not have sufficient income. The circuit court noted that DHS reported that Samanthia- was inconsistent during visits in her concern for S.S., her interaction with S.S., and her affection for S.S.
The circuit court found that Raymond was compliant in completing parenting classes, viewing the video, submitting to drug-and-alcohol and psychological assessments, | ¿attending visitation, maintaining income and. a home, and submitting to random drug screens; However, Raymond, tested positive for THC and opiates on August 12, 2014, and on September 11, 2014, and he had not returned his home-study packet. He was often late for visits, and he had trouble keeping track of visitation days and times.. Neither parent was ordered to pay child support.
A permanency-planning order was filed on March 31, 2015, and the circuit court found that return of custody to the parents was contrary" to the welfare of S.S., and continuation of custody in DHS was in the child’s best interest. The circuit court authorized a plan for adoption with DHS filing a petition for termination of parental rights because (1) S.S. was not being cared for by a relative, and termination was in her best interest; (2) DHS had provided appropriate services; and (3) the permanent goal should be a plan for adoption. Accordingly,' the circuit court appointed counsel for Raymond. A home study and drug-and-alcohol assessment on Raymond were admitted in evidencé. The circuit court found' that, while Samanthia had been partially compliant with the case plan and was continuing to seek disability income after being denied twice, she had not been compliant in that she tested positive for THC at the drug-and-alcohol assessment and for opiates on January 7, 2015. She had missed one visit on August 21, 2014, and she did not have sufficient income. The circuit court specifically noted concerns about 'Samanthia’s credibility. Regarding Raymond, the circuit court found compliance and noncompliance as set forth above and further found that the home-study packet, which was finally sub mitted in January 2015 due to his not being able to provide a current address, was denied.
|bDHS filed a petition for termination of parental rights on April 17, 2015, and alleged that (1) S.S. had been out of the custody of the parents for twelve months, and despite meaningful effort by DHS to rehabilitate the parents and correct the conditions which caused removal, those conditions had not been remedied, citing Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl.2015); (2) subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrated that placement of S.S. in the parents’ custody would be contrary to her health, safety, or welfare and that despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues, citing Ark.Code Ann. § 9-27-341(b)(S)(B)(vii)(a); and (3) the parents had subjected S.S. to aggravated circumstances, citing Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a). DHS alleged that, due to her tender age, S.S. was adoptable and that there was potential harm due to the parents’ lack of sufficient income and their instability with respect to relationships and employment.
At the termination hearing held on June 23, 2015, Raymond testified that he and Samanthia had never been married to each other and had not lived together. He claimed that S.S. had been in his home almost every weekend and every day he had off work until she was removed by DHS and placed in foster care. He claimed that S.S. was placed in foster care because he stopped going to Samanthia’s house and keeping it clean. He admitted to having contact with Samanthia, as he had been to her house on the day prior to the hearing. He explained that he had a prescription for opiates when he tested positive for that, but admitted that he had failed the drug screen for THC, which was his fault. He said | nthat he did not know where he got the marijuana. He said that he had three jobs and had trouble getting his home-study packet returned to DHS. He denied being late for visits and denied having trouble remembering what day his visits were scheduled. He admitted that he did not keep a calendar even though he was shown how to keep one. Since the case began, he had moved three times and had two girlfriends. He said he was currently dating Anna, his fiancée. He admitted that he also had sex with Samanthia twice since the case began. His jobs were at a sawmill and Larry’s Pizza, and he had a weekend job cutting timber. He admitted that, his income was not sufficient to cover his bills on a monthly basis. He claimed that the only thing he had failed to do was the home study. He further claimed that he did not know of Samant-hia’s drug problem before DHS became involved.
Samanthia testified that she is S.S.’s mother and that S.S. was almost a year old when she. was placed in foster care by DHS. She said,
[T]hey took her because my house is trash. They said she was drinking on a spoiled bottle, and I didn’t feed her until two o’clock that afternoon, she had a severe diaper rash, which it actually was a yeast infection. And it wasn’t that bad because I was treating it.
She claimed that she only had problems with keeping a job. She claimed that S.S. had a yeast infection from antibiotics she had been taking for an ear infection. Sa-manthia said S.S. was dirty that day because she had been teaching S.S. to. walk outside in the dirt. She did not bathe S.S. before her nap because she planned on taking S.S. back outside. She admitted having used marijuana around the time S.S.was removed from her care, but denied having.used opiates in January 2014. She 'surmised that someone may have slipped her some pills, |7as she had been hanging around some bad people, including Raymond. She claimed that Raymond had two fíancées during the case. She admitted having had several different boyfriends since the case started and explained that it was because she was looking for something “long term.” She said that she had visited S.S.on Thursdays and that DHS had talked to her about how she. needed to focus on S.S. during her visits. She wanted DHS to help her find a job so she could be reunited with S.S. Her plan was to leave S.S. with a friend while she worked. She also thought that if-she could get her driver’s license, a car, and a job in Jones-boro, she could take S.S. to her aunt’s daycare there. She said that she was applying for disability based on her borderline-personality disorder, which developed over many years of being abused. She said that she sometimes took her medication as she was supposed to, but most of the time she did not.
Allison Starr testified that she was the family-service worker for DHS and was assigned to S.S.’s case from April 2014 until January 2015. She helped develop both of the case plans. She said that Raymond and Samanthia had done everything in the case plans. However, she testified that DHS’s recommendation was to terminate the parental rights of both parents and change S.S.’s goal to adoption.
She said that Raymond had not been able to do an unsupervised visit or extend his visits throughout the entire case. She admitted that DHS and the ad litem determined by agreement whether to extend visitation. She said, “He’s been unable to get a hold of most of the time. There’s been times that we’ve tried to extend the visits and we have not been | sable to get a hold of him.” She said that even after repeated suggestions that-he keep his telephone with him so that he could be reached, most of the time Raymond would not answer his telephone. She said that if S.S.were to go back- home and an emergency occurred while she was with a caretaker and Raymond was at work, there would be a concern that Raymond would not be reachable. She also said that Raymond did not have a plan for how he would care for S.S. if she were in his home. She claimed that Raymond told her that he worked from “sunup to sundown,” that he would never cut Samanthia out of his daughter’s life, and that Samanthia could care for her. She said that Raymond had not always been on time for his visits with S.S.and that she helped him develop a calendar for visitation. . She said that when she stopped making a calendar for him, he showed up on the wrong days. She said that he would have to know the child’s schedule for school, doctor appointments, and different things. She also said that Raymond had requested a home study, but DHS was not able to give him one until paternity had been established. That was done in June, but the study was not done until January because Raymond had different addresses. He had lived in five different places since the case had begun.
She said that Raymond had failed drug tests for THC and opiates, but later provided verification 6f a prescription for the opiates. She1 admitted that she was not concerned about the opiates, but she was concerned about the marijuana. She said that marijuana can stay in your system from thirty to forty-five days, and the tests were administered to Raymond thirty days apart. She said that it was a positive sign that Raymond had not failed a drug screen for the last nine months. She stated that Raymond stayed fairly consistent with his | ¡¡visitation, that he had missed four out of forty-eight visits, and he was late a total- of five times. She said that she had observed him being appropriate on visits with S.S. She also said he had one fiancée at the beginning of the case, he then went “back and forth” with Samanthia, and he now had a current fiancée. Therefore, he had been involved with three women over the last fourteen months. She said that Raymond’s income was not sufficient and that Samanthia did not have a job. She-said that she found it interesting that both Samanthia and Raymond tested positive for the same illegal drugs.
Ms. Starr also testified that she was not aware of any factors that would prolong or prohibit an adoption in this case. She said that both parents had insufficient income to support S.S. and that both had instabilities in their lives. She said one family member interested in adopting S.S. had requested a home study.'
Ava Lou Holt testified that she ;was Samanthia’s landlord, had, been for ten month’s, and that Samanthia’s home was clean. She said that, Samanthia was gullible and impressionable, but she had a good heart. '- She had witnessed Samanthia maintain a normal household, clean, and cook. She said that she had taken Sa-manthia to apply for jobs and that Samant-hia was trying hard to get one. ■
At the conclusion of the hearing, the circuit court granted DHS’s petition to terminate parental rights of both parents. The circuit court’s order was filed on August 11, 2015. Appellants, filed separate notices of appeal in a timely manner, and this appeal followed. * -
| inII. Standard of. Review
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341; Dunn v. Ark. Dep’t of Human Servs., 2016 Ark. App. 34, 480 S.W.3d 186. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992); The appellate inquiry is whether the trial court’s' finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
III.' Termination of Samanthia’s Parental Rights
Samanthia argues that termination of her parental rights was not in S.S.’s best interest. She specifically targets the circuit court’s finding that S.S. would be subject to potential harm if returned to her custody. She does not challenge’the circuit court’s finding that there was at least one ground supported by sufficient evidence or that S.S. was adoptable. However, she contends that reversal is still proper on the potential-harm factor as it is a 11 component of the best-interest finding and must be proved separate and apart from any statutory ground or adoptability. She maintains that there was insufficient evidence to support the circuit court’s finding of potential harm. She cites Conn v. Arkansas Department of Human Services, 79 Ark. App. 195, 85 S.W.3d 558 (2002), where this court reversed the termination of the father’s parental rights because there was no clear and convincing evidence that termination was in the child’s best interest. We noted that -no evidence was presented at the termination hearing at all, and the termination was based solely on a stipulation concerning the earlier termination of parental rights to the juvenile’s sibling.- Id. at 198, 85 S.W.3d at 560. Because only one of . the two requirements of the statute was proved, the circuit court’s decision to terminate parental rights was deemed clearly erroneous. Id.
Samanthia also cites Strickland v. Arkansas Department of Human Services, 103 Ark. App. 193, 287 S.W.3d 633 (2008), where this court reversed the termination of the mother’s parental rights, which was predicated on the mother’s numerous moves during the pendency of the case. The Strickland court held as follows:
Appellant always maintained some type of housing, and DHS presented no clear and convincing evidence that any of her residences were unsafe or inappropriate. DHS cites the moves as evidence of an unusually peripatetic or unstable personality, but there are logical explanations for many of the moves. Moreover, they equally connote a continual striving by appellant to maintain suitable housing despite her circumstances. We believe the termination decision is too important to rest on this factor, given the entirety of the evidence in this case. As late as August 2007, the court lauded appellant’s progress and predicted imminent reunification. Appellant is unquestionably devoted to her children and visited them faithfully throughout the case. Her completion of three sets of parenting classes is a testament to her | ^determination to abide by the case plan and court orders. - And, while it appears she may have missed some of JS’s doctor’s appointments during this two-year case, the record reveals some confusion as to whether she received notification of all appointments.
Further, there was no clear and convincing evidence that appellant’s limited cognitive abilities or her possible depression, which was not shown to be-anything other than situational, adversely affected her ability to parent JS and CS. Nor was there clear and convincing evidence that appellant’s meager income rendered her unfit. Appellant tes--fified that her disability payments and food stamps covered what few expenses she had, with money left over. DHS witness Jennifer Harper testified that appellant eóuld possibly support herself and the children on that income. It is also noteworthy that, when appellant lost her vehicle after separating from Mr. Gareia-Lopez, she was able to establish a transportation support system that no DHS witness could seriously fault. Jennifer Harper testified that appellant’s obligation to acquire stable transportation did not necessarily require ownership of a car.
Strickland, 103 Ark. App. at 200, 287 S.W.3d at 639.
’ Samanthia argues that her primary issues, as articulated by DHS’s caseworker, were related to income, unstable relationships, and visitation concerns that boiled down to -her utilizing her telephone at times during visits. She contends that the evidence demonstrated that she had successfully maintained a stable ■ and clean home for ten months prior to the termination hearing, had faithfully visited S.S., had completed the case plan, and had not engaged in any relationship for several months prior to the hearing. She argues that hone of that evidence was challenged, and all of it belies the circuit court’s finding that S.S. would be subject to potential harm if returned to her custody. She cites Benedict v. Arkansas Department of Human Services, 96 Ark. App. 395, 398, 242 S.W.3d 305, 308 (2006), for the proposition that, while there is still reason to believe there can be a positive, nurturing | ^parent-child relationship, the law favors preservation, not severance, of natural familial bonds.
The State contends that a de novo review supports the circuit court’s decision to terminate Samanthia’s parental rights. We agree. Appellate review here is limited to whether the circuit court’s best-interest finding was clearly erroneous. The best-interest finding must be based on a consideration of two factors — the likelihood that, if parental rights are terminated, the juvenile will be adopted, and the potential harm caused by continuing contact with the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). The court was not required to find that actual harm would result or to affirmatively identify a potential harm. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). Furthermore, the Arkansas Supreme Court has directed that the potential-harm analysis be conducted in broad terms. Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
DHS opened a protective-services case in June 2013 because Samanthia had left S.S.unsupervised for three hours. Sa-manthia also tested positive for THC after she had tried to dilute the test specimen with hot water. She was provided with services, including parenting classes, referral for counseling through a contract provider, home visits, and random drug screens. The case remained open for five months, then it was closed. Five months later, there was a report to DHS that Samanthia was providing S.S. inadequate food and supervision. S.S. was reportedly in a dark bedroom with the door shut, crying and drinking | ]4from an old bottle. S.S.had a full diaper and a severe diaper rash. Samanthia admitted that S.S. had not eaten that day, and it was 2:00 p.m. When the caseworker contacted Samant-hia, she became irrational and erratic, screaming at the caseworker and threatening a lawsuit. DHS assumed immediate emergency custody and the current case began, resulting in an adjudication of dependency-neglect and an ultimate termination of parental rights.
Even though Samanthia was mostly case-plan compliant, her completion of the case plan is not determinative. Whether her completion achieved 'the intended result of making her capable of caring for S.S.is what mattered. Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). Here, even after nearly two years of DHS services, she was not employed and was not ready to care for S.S. She had not obtained disability benefits, and she had no stable means of supporting herself and S.S. The caseworker testified that Samanthia had learned little in spite of the services. She discussed Samanthia’s visits with S.S. and her need to be redirected to focus on S.S. Further, it was necessary to implement a plan for Samanthia to obtain approval to bring extra people to visits with S.S., and Samanthia needed a plan that forbade telephone calls and texts during her visits with S.S.Accordingly, the circuit court’s best-interest finding was not clearly erroneous.
IV. Termination of Raymond’s Parental Rights
Raymond contends that the circuit court committed reversible error by terminating his parental rights. He argues that none of the four statutory grounds alleged by DHS were Improved by clear and convincing evidence. He also contends that the circuit court erred in finding that it was in S.S.’s best interest to terminate his parental rights.
The third ground for terminating Raymond’s parental rights relied on Ark.Code Ann. § 9-27-341(b)(3)(B')(vii)(a), in finding that, subsequent to- the filing of the original petition, other factors- or issues arose which demonstrate that placement of S.S. in the parent’s custody-would be contrary to S.S.’s health, safety, or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors. The circuit court found that the parents had failed to comply with their case plans, both failing drug screens, and both having issues keeping up with their visitation times and places. However, Raymond contends that a review of the record shows that the circuit court found.him to be compliant with the case plan. The record also shows that drugs were not a concern with Raymond, according to the caseworker’s testimony. Finally, Raymond contends that his visitation record was positive. Thus, he argues that DHS did not produce clear and convincing evidence as to this ground-
Raymond maintains that the circuit court seemed to articulate a burden of proof that is not supported by Arkansas law. He refers to the remarks made during the circuit court’s ' ruling from the bench and contends that juvenile courts are supposed to protect the best interest of the child. He asks if average people could not successfully traverse dependency-neglect court, what hope do those who are below average have?
11fiRaymond also contends that the circuit court erred in finding that it was in 5.5.’s best interest to terminate his parental rights. The circuit court’s best-interest finding was premised on the likelihood that 5.5. would be adopted and the potential harm to her health and safety caused by returning S.S. to her parents’ custody. The circuit court relied on the caseworker’s testimony, which the court found to be credible, and thé parents’ failure to complete their Case plans, engaging in multiple relationships during the course of the case, and failure to show they can adequately provide for S.S. Raymond claims that the caseworker’s testimony was that he was compliant with the case plan, had demonstrated appropriate parenting skills during visitations, was consistently employed, and had been drug free for nine months. He claims that he could find no case law to support the circuit court’s decision that three girlfriends over the course of a year equates to instability or potential harm, and he argues that there was scant evidence that he lacked the financial means to care for his child'. Assuming there was evidence that he was too poor to provide for his child, that, by itself, should not be a potential harm that would substantiate a best-interest finding in a termination-of-parental-rights proceeding. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).
Termination of parental rights requires clear and convincing evidence that two elements exist. Ark.Code Ann, § 9-27-341(b)(3). First, termination must be in the child’s best interest; second, at least one of nine statutory grounds must exist. Here, the circuit court found that both conditions existed. Among other things, the circuit court terminated Raymond’s parental rights under,, section 9-27-341(b)(3)(B)(vii)(a), which provides that |17rights can be terminated if, subsequent to the filing of the original petition for dependency-neglect, other factors or issues had arisen demonstrating that placement of the child with the parents was contrary to the child’s health, safety or welfare, and that despite the offer of appropriate family services, .the parent had manifested the incapacity or indifference to remedying those issues.
After the case had begun, Raymond twice tested positive for .illegal drugs. This in itself was a subsequent factor. Dodd v. Ark. Dep’t of Human Servs., 2016 Ark. App. 64, 481 S.W.3d 789. Raymond was also difficult to keep track of throughout the case, was difficult to contact via telephone or otherwise, and moved so often that a home study could not be done until January 2015, which was then denied. Even though Raymond worked several jobs, his expenses were more than his income, and his daughter was not living with him at that point. Raymond’s financial instability was something learned subsequent to the filing of the petition for dependency-neglect. The circuit court was also rightfully concerned with Raymond’s demonstrated instability in relationships with the opposite' sex, maintaining some sort of on-again ofi-again relationship with Samanthia and entering two marriage engagements with other women over the course of one year. The State contends that he was somewhat compliant with visitation, as he had. issues with tardiness and inaccessibility, which led to DHS never extending him, more visits or unsupervised visitation.
As is the case with Samanthia, Raymond’s compliance with the case plan did not achieve the result of making him capable of caring'for S.S. Wright, supra. After a year of 11sDHS-provided services, the circuit court still was not confident that Raymond had demonstrated the capacity to remedy these factors that arose subsequent to the child’s removal. As only one ground is necessary to terminate parental rights, and clear and convincing evidence supports the “subsequent factors ground,” we affirm the circuit court’s termination of Raymond’s parental rights and do not discuss the other statutory grounds raised by Raymond.
Regarding clear and convincing evidence that termination was in the child’s best interest, taking into consideration the likelihood that the child will be adopted and the potential harm that may occur from returning the child to the custody of the parents, the evidence must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Raymond argues that there was insufficient evidence of potential harm and no evidence that he posed a danger to his child. However, the financial, relationship, and housing instability and uncertainty discussed above support the circuit court’s finding of potential harm. See Singleton v. Ark. Dep’t of Human Servs., 2015 Ark. App. 455, 468 S.W.3d 809. Continuing use of illegal drugs, as shown by Raymond’s positive drug tests, also by itself shows potential harm. Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7. Moreover,- after a year into the case, Raymond still had not demonstrated that he was capable of providing S.S. with a.safe and appropriate family home. In light of this factor and the circuit court’s voiced concern over Raymond’s inability to articulate a clear plan for S.S.’s care or his own income and housing situation, no clear error has been committed.
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BRANDON J. HARRISON, Judge
| jLet’s Talk Speech Pathology Services, LLC (“Let’s Talk”), appeals from the Arkansas Board of Review’s (“Board”) decision finding that it is required to pay unemployment-insurance taxes for the services performed by its speech pathologists. Qn appeal, Let’s ■ Talk argues that the Board erred in applying an out-of-date version of Ark.Code Ann. § ll-10-210(e) and that the Board’s decision is not supported by substantial evidence. We affirm.
On 12 June 2014, the Arkansas Department of Workforce Services (“Department”) issued an unemployment-tax determination letter of liability to Let’s Talk, concluding that Katy Eldridge, a. speech pathologist under contract with Let’s. Talk, and all other workers working under the same or similar conditions, were employees for purposes of |aunemployment-insurance taxes. Let’s Talk filed a request.for determination of coverage by the Department director (“Director”), and a hearing was held on 15 October 2014.
Christy Wygal, a speech pathologist and co-owner of Let’s Talk, testified that Let’s Talk provides administrative services that include making arrangements with physicians to get approved speech therapy, contracting with speech therapists to provide that therapy, and billing Medicaid for those services. She explained that once a child in need of services is identified, the parents fill out the required paperwork, Let’s Talk determines whether the child qualifies for speech therapy based- on the Medicaid guidelines, and if the child qualifies, then the necessary paperwork is sent to a doctor to prescribe the amount of therapy per week. Once the amount of therapy is set. Let’s Talk matches the child with a speech therapist in that area. Wygal explained that Let’s Talk has contracts with thirty-five speech therapists.
Wygal testified, that Let’s Talk does not assist its speech pathologists in obtaining their required licensure, continuing education, or liability insurance. She also explained that each therapist sets his or her own hours and can choose not to work with a particular child. The speech therapist contacts the parents, the daycare, or the school and arranges for the therapy, usually at the child’s daycare.- Wygal testified that Let’s Talk has an office in Little Rock but that th'e speech therapists are not required to come to that office. She said that the speech therapists determine their own therapy methods and provide their own materials and that Let’s Talk does not supervise'the therapy sessions. She also | .¡testified that Let’s Talk does not reimburse its therapists for mileage 'or materials. The therapists write progress notes on a daily basis and submit those notes to Let’s Talk on a monthly basis; billing reports are turned in weekly.
Wygal explained that Let’s Talk has “Independent Contractor Agreements” with the therapists who provide services on behalf of Let’s Talk, Those agreements make clear that the therapists are to remit their own taxes, provide their own materials, and pay for their own insurance and licen-sure fees.. The therapists are not prohibited from providing services on .behalf of other companies. The therapists submit billing reports to Let’s Talk, which in turn bills Medicaid for the number of units each child was seen in that week. Medicaid pays $87.04 per four units, and each speech therapist is paid a flat rate of $50 per hour per the “Independent Contractor Agreement.” The additional $87.04 is retained -by Let’s Talk as payment.for its administrative services.
Wygal stated that Let’s Talk keeps up-to-date .with the Medicaid guidelines and provides an administrative service by collecting Medicaid funds to pay the speech pathologists- for their work. She also agreed that it is the custom for' private companies such as Let’s Talk to treat their therapists as independent contractors. On cross-examination, Wygal agreed that the company interviewed its therapists when hiring them and did not put out a request for qualifications or request for proposals. She also agreed that the therapists are required to wear name tags that identify them with Let’s Talk. She explained that Let’s Talk or the therapist can terminate a contract with thirty days’ notice and that the contract contains a “standard” non-compete clause. She also agreed that Let’s RTalk was currently carrying workers’ compensation insurance qn its therapists because it was “misinformed by our insurance agent that that was required.” Wygal stated that Let’s Talk planned to cancel that insurance. Finally, Wygal was questioned about the company’s mission statement on'its website: ■
Let’s Talk Speech Pathology Services is a community based private practice serving the Little Rock and Central Arkansas area. -.. Our mission is to provide high quality, individualized speech therapy in the clients’ most natural setting including homes, daycares, schools, and our. Little Rock office_ Our staff includes speech pathologists, occupational therapists, as well, as a physical therapist.
Wygal disagreed that the statement represents that the therapists work.for Let’s Talk; instead, she said the company considered “staff’ a generic term that was generated by their website creator. She also stated that if a parent was unhappy with a particular therapist, the parent would contact Let’s Talk and “we would talk to the parent and find out what the problem is, exactly, and make changes based on that.”
Laura Johnston testified that she had been a licensed speech pathologist for sixteen years and had worked with Let’s Talk for fourteen months. She said that she also works as an independent contractor with three other companies and that such an arrangement is customary in the industry. She explained that she receives no benefits from Let’s Talk and that Let’s Talk does not provide any training or materials. She stated that she arranges the day and time that she will work with a particular child and receives no direction from Let’s Talk on what services or-’methods that- she should use. She agreed that Let’s Talk handled all the administrative functions related to her getting paid- by Medicaid for her professional services.
| ¿Kathy Erelin testified that she is a licensed speech pathologist and . owns her own company that provides speech pathology services. ■ She explained that she contracts with Let’s Talk to provide services and that her company is paid for those services by Let’s Talk. Similar to Johnston, Frelin testified that Let’s Talk does not provide materials or supervision and that she makes,, her own arrangements with clients.. She also stated that she has had independent-contractor ■ relationships with other speech-pathology companies. She explained that she did not know about Medicaid billing- and that it was worth it to give Let’s-Talk “some off the top- of what I’m making to deal with all the Medicaid billing.”
Kenneth Jennings testified that he is a 515 Unit Supervisor with the Department’s Wage Investigation Unit. Jennings testified that Let’s Talk failed the first element of Ark.Code Ann. § ll-10-210(e), the “free from control and direction” element, because the hourly rate was set by the company, the worker was. required to provide time worked to the employer, and the employer had discharge rights over the worker. On the second element under the statute, the “services performed outside the usual course of business” element, Jennings explained that Let’s Talk is a speech-therapy business and the worker performs speech therapy,. which is the same type of business. He also stated that the work is performed at either the Let’s Talk office or the child’s daycare or hpme, and he agreed that these are “the same places that Let’s Talk holds out as doing their services.” And on the third element, ffie “individual engaged in an independent business or trade” element, Jennings said that the worker had no financial interest other than hourly pay and had no | (¡personal speech-therapy business; in addition, Let’s Talk provided a name badge for the worker, so he or she appeared to represent Let’s Talk,
The Director issued a decision on 29 October 2014. The decision first laid.out the applicable law, Ark. Code Ann. § 11-10-210(e) (Supp. 2013):
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the .satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is-performed or is performed outside all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
The Director found that Let’s Talk failed to meet prongs (1) and (2) of the three-part conjunctive test found in the statute. Thus, the Director agreed with the Department’s determination that Let’s Talk was responsible for the payment of unemployment-insurance taxes for the services performed by its speech therapists.
Let’s Talk appealed to the Board, which issued a decision in May 2015 affirming the Director’s decision, with the modification that Let’s Talk failed to meet its burden on all three prongs under the statute. On the first prong, the Board found that Let’s Talk provided the workers with clients, the Let’s Talk website seeks clients who need its services, and “[i]f [Let’s Talk] had been a billing/administrative service company it would not have clients except for the speech pathologist for whom it provided a billing service.” The Board also noted that other factors, such as the contractual requirement that the 17worker provide Let’s Talk with written progress notes and updates and turn in weekly billing logs, the noncompete clause, and the right of discharge, evidenced a “type of oversight” that indicated “direction and control of the worker’s job activities.”
On the second prong, the Board found that while Let’s Talk contends it serves as merely a referral service, it holds itself out to the public as providing speech-pathology services. Further. Let’s Talk does not make money from the referral, but instead makes a profit from the therapists who perform services. The Board concluded that “[w]orkers providing speech pathology treatment is not outside the usual course of [Let’s Talk’s] business.” With regard to the place-of-business aspect of the test, the Board found that “the therapists in the instant case represent the therapists’ interest at the locations in which services are provided to clients; particularly since the employer describes the therapists as ‘staff and advertised that it would allow services to be performed in its own office on its website.” And on the third prong, the Board found that “while workers may have provided similar services to other companies. [Let’s Talk] failed to present specific evidence to .establish an independently established business performing the same type of services.” Let’s Talk has timely appealed the Board’s decision to this court.
We first address Let’s Talk’s challenge to the sufficiency of the evidence. Let’s Talk argues that the Board erred in finding that it failed to meet its burden on the three-prong test in section 11-10-210(e). To establish the exemption set forth in section ll-10-210(e), an employer must prove each of the three requirements in subsections (1) — (3). Barb’s 3-D Demo Serv. v. Dir,, 69 Ark. App. 360, 13 S.W.3d 206 (2000). If there is sufficient | «evidence to support the Board’s finding that any one of the’..three requirements has not been met, the case must be affirmed. Id.
We review the Board’s findings in the light most favorable to the prevailing party and affirm the Board’s decision if it is supported by substantial evidence. Rodriguez v. Dir., 2013 Ark. App. 361, 2013 WL 2368801. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence upon which the Boards might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision that it did based upon the evidence before it. Id. The Board determines issues of the credibility of witnesses and the weight to be afforded their testimony. Ballard v. Dir., 2012 Ark. App. 371, 2012 WL 1943622.
Let’s Talk first addresses subsection (e)(1), which requires it to show that “[s]uch individual' has been and will continue to be free from control and direction in connection with the performance of the service, both under his or hér contract for the performance of service and in fact.” Ark.Code Ann. § lí-10~210(e)(l). Let’s Talk contends that it did not exercise control" over Eldridge’s speech-pathology services. It argues that the therapist had to submit billing logs to Let’s Talk so it could perform the administrative services it agreed to perform, and its requirement that those logs and progress notes (that Medicaid requires) be filed by a certain time is not indicative of the control necessary under subsection (e)(1). Let’s Talk again emphasizes, as it did below, that the speech therapists made their own arrangements with clients and decided their own therapy methods. Let’s Talk cites O’Dell v. Director, 2014 Ark. App. 504, 442 S.W.3d 897, in which this court | Reversed the Board’s finding that typists hired by a professional transcriptionist were employees for unemployment-tax purposes. There, we explained:
The record showed that O’Dell provided medical-transcription services to physicians for St. Vincent Hospital. The physicians provided tapes to . O’Dell, who would transcribe' them. She also assigned tapes to other' typists when she had more work than she could complete alone. The typists picked up the tapes from- O’Dell’s residence, transcribed them, and returned their transcriptions on a thumb drive or floppy disk. O’Dell then -reviewed the transcripts, made necessary changes, printed them, and returned them-to the physicians.
The Board found that O’Dell failed to prove the first prong: namely, that Pol- ston and other typists were not free from her control. We disagree with the Board’s broad interpretation of the statute. The sole evidence of control before the Board was that O’Dell gave instructions to her typists regarding the format, font, and margins, and she required them to return the completed work within 24-36 hours. Once the work was returned, O’Dell would review it and make any revisions before forwarding the product to St. Vincent. If any of the typists failed to adequately complete the work, O’Dell retained termination rights and did not pay them. The Board’s broad interpretation results in it becoming next to impossible for anyone to be free from control. The legislature surely intended for independent contractors to exist in Arkansas or the statutory test would not exist. Providing an independent contractor with basic guidelines and retaining the right to discontinue using them in the future does not equate to control sufficient to create an employer-employee relationship under the statute.
Even had we agreed with the Board’s statutory interpretation, this was also not substantial evidence of control under Ark.Code Ann. § ll-10-210(e)(l). While we give great deference to the Board’s findings of facts, the facts must equate to substantial evidence that reasonable minds might accept as adequate to support a conclusion. We simply do not agree there was evidence substantial enough for the Board to find that O’Dell had failed to meet the burden of proving that the typists she hired were free from her control and direction.
Id. at 3-4, 442 S.W.3d at 899-900. Let’s Talk argues that this case is like O’Dell because its ability to terminate the employment contract and its requirement for its therapists to | inreturn necessary documentation to allow for payment does not equate to control sufficient to create an employer-employee relationship.
In response, the Board cites the following facts as substantial evidence of Let’s Talk’s control over its therapists: (1) Let’s Talk determines who needs speech-pathology services, arranges for a doctor to write a prescription for those services, assigns a therapist, and pays that therapist based on the number of hours services are provided; (2) therapists are required to provide Let’s Talk with written progress notes and weekly billing logs; (3) therapists are prevented from privately contracting with any of Let’s Talk’s clients by the noncompete clause; (4) Let’s Talk sets the hourly rate paid to the therapists; (5) Let’s Talk receives and handles complaints about the therapists; (6) the therapists are required to wear name badges identifying their affiliation with Let’s Talk; and (7) Let’s Talk has the right of discharge over the therapists. The Board argues that these facts show that Let’s Talk exercises “significant control” over the therapists.
We hold that substantial evidence supports the Board’s finding that Let’s Talk failed to meet its burden on this point. While the evidence can certainly be viewed as supporting Let’s Talk’s position, our standard of review requires us to view the Board’s findings in the light most favorable to the prevailing party and affirm the Board’s decision if it is supported by substantial evidence. Rodriguez, swpra. Even when there is evidence upon which the Board might have reached a different decision, the scope of our review is limited to determining whether the Board reasonably could have reached the decision that it did based upon the evidence before it. Id. In this case, the Board could have reasonably decided that Let’s Talk did not meet its burden on the first prong, and we therefore affirm |nthe Board’s finding on this point. Our affirmance of the Board’s finding on subsection (e)(1) renders it unnecessary to discuss subsections (e)(2) and (e)(3). See Barb’s 3-D Demo Serv., supra.
Let’s Talk also contends on appeal that the Board should have applied an amended version of section ll-10-210(e) that was effective as of 2 April 2015, which was after its appeal to the Board was filed but before the Board issued its decision. The Board noted this change in the law in its decision but stated that because the change to the legislation did not include a clause making the change retroactive, the applicable law was the statute as it existed prior to the legislative change. We hold that we need not reach this issue because Let’s Talk has failed to meet its burden under subsection (e)(1), which is'a requirement under either version of the' statute.
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree.
. Eldridge was disqualified from receiving unemployment benefits, and she is not a party to this appeal.
. Four units is equal to one hour of therapy, ■ - | [
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PER CURIAM
| Appellant Charles Robinson filed a pro se petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure,- which was denied by the circuit court. -Robinson lodged this appeal, and he has filed two motions in which he seeks an extension of time to file his brief and also seeks a copy of the trial transcript at public expense. Because it is clear that Robinson cannot prevail on appeal, we dismiss the appeal, and Robinson’s .motions are moot.
On December 8, -2014, Robinson pleaded guilty to aggravated robbery, theft- of property obtained by threat of serious physical injury, and possession of firearms by certain persons in case number 60CR-11-3885. On the same date, Robinson also pleaded guilty to an additional charge of robbery and theft in case number 60CR-13-851 and to possession |2of a controlled substance with intent to deliver in case number 60CR-13-933. The sentencing orders were entered on January 15, 20Í5.
Robinson filed a timely, verified Rule 37 petition on April 13, 2015, alleging that his convictions were the result of ineffective assistance of his counsel, Kathryn’ Hudson, because she failed to inform him that the prosecutor had made a plea offer that recommended a sentence of 15 years’ imprisonment with 5 years suspended with respect to the offenses charged in case number 60CR-11-3885. According to Robinson’s Rule 37.1 petition, the aforementioned plea offer was withdrawn by the prosecutor after Robinson was charged with first-degree murder. The record demonstrates that Robinson was arrested in 2011 on the charges in case number 60CR-11-3885, but: was released on bail. While Robinson was free on bail, he was charged- with the additional offenses reflected in case numbers 60CR-13-851 and 60CR-13-933. Robinson was also charged with first-degree murder in case nümber 60CR-13-780, for which he was convicted on a later date.
Robinson filed a Rule 37.1 petition that listed the case numbers connected with all the offenses to which he pleaded guilty on December 8, 2014: 60CR-11-3885, 60CR-13-851, and 60GR-13-933. However, the record reflects that Robinson whs represented by Jessica Duncan in case numbers 60CR-13-851 and 60CR-13-933, and Robinson did not raise any allegations of deficiency with regard to Duncan’s representation. Robinson’s request for postconviction relief is based solely on allegations that Hudson’s failure to communicate a plea offer allegedly made in case number 60CR-11-3885 deprived him of a constitutional right. Robinson further alleged that he was prejudiced by Hudson’s failure because, after he pleaded guilty on December 8, 2014, the circuit court sentenced him to |s720 months’ imprisonment for the crimes, rather than the more lenient 180-month sentence allegedly recommended in a plea offer that was withdrawn. Robinson also alleged that Hudson coerced him into pleading guilty. Robinson requested that he be allowed to withdraw his plea so that he can be apprised of the first plea offer and allowed the “opportunity to consider said plea.”
The circuit court denied the petition without a hearing and concluded that Robinson raised no allegations with regard to Duncan’s representation in case numbers 60CR-13-851 and 60CR-13-933; that Robinson’s allegation of coercion was contradicted by plea statements executed by him; that Robinson failed to establish the existence of another plea offer or the date on which it was made known to Hudson; and that the allegations and the request for relief set out in the petition were insufficient to warrant relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure.
This court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Adkins v. State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. When considering an appeal from a trial court’s denial of a postconviction petition based on a claim of ineffective assistance of | ¿counsel, the sole question presented is whether under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred when it held that counsel was not ineffective. Hooks v. State, 2015 Ark. 258, at 3-4, 465 S.W.3d 416, 419 (per curiam). Under the Strickland test, a petitioner must show that counsel’s performance was deficient, and a petitioner must demonstrate that he was prejudiced by counsel’s deficient performance. Pennington v. State, 2013 Ark. 39, at 1-2, 2013 WL 485660 (per curiam). A petitioner must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if the petitioner fails to demonstrate prejudice as to an alleged error. Id.
To demonstrate prejudice where a plea offer has lapsed or been rejected because of counsel’s deficient performance, a petitioner must show a reasonable probability both that the plea offer would have been accepted had counsel communicated the offer and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusal to accept it. Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 1402-03, 182 L.Ed.2d 379 (2012), Thus, a petitioner must demonstrate that but for counsel’s deficient performance, the result of the proceedings would have been different. Id. at 1410. Allegations of ineffective assistance of counsel in the context of plea negotiations must establish some direct correlation between counsel’s deficient behavior and the decision to enter the plea. Pennington, 2013 Ark. 39, at 1-2, 2013 WL 485660.
A bare assertion that a plea offer was made, standing alone, is insufficient to warrant relief based on an ineffective-assistance-of-counsel claim alleging that counsel failed to communicate the offer. Huddleston v. State, 347 Ark. 226, 230-31, 61 S.W.3d 163, 167-68 (2001) (per curiam) (citing Scott v. State, 286 Ark. 339, 691 S.W.2d 859 (1985) (per curiam)). A collateral attack on a valid judgment must be founded on more than an ^^unsubstantiated allegation, and a petitioner who provides no evidence that a State plea offer existed that counsel failed to communicate has no merit and should be denied. Huddleston, 347 Ark. at 230-31, 61 S.W.3d at 167-68. Therefore, based on the absence of any evidence that the plea offer was made, Robinson’s bare allegation fails to warrant relief.
Even assuming that Robinson presented sufficient proof that a more lenient plea offer was made, his allegations are insufficient to warrant relief under the standard enunciated in Frye, 132 S.Ct. 1399. Robinson did not allege that he would have accepted the offer had counsel communicated it to him, and he did not allege that he would have accepted the plea offer if his request for postconviction relief had been granted. Rather, Robinson merely asked that he be given the opportunity to consider accepting the offer. Furthermore, the assertions made in Robinson’s Rule 37.1 petition did not establish a correlation between his counsel’s alleged failure to communicate the plea offer and the outcome of the proceeding. According to the allegations contained in the petition, the favorable plea offer was withdrawn because Robinson was charged with first-degree murder, not because counsel delayed communicating the offer within a stated time frame. In sum, Robinson failed to state facts sufficient to demonstrate a reasonable probability that, but for counsel’s errors, a more lenient plea offer would have remained on the table and would have been accepted by him. See Frye, 132 S.Ct. at 1411 (remanding to determine prejudice because there was reason to doubt that' the prosecution would have adhered to the original offer after Frye committed an additional offense).
Finally, Robinson alleged that counsel coerced him into pleading guilty because after he was charged with first-degree murder, counsel stated that Robinson was “the stupidest |nperson she had ever dealt with” and later sent Robinson a letter apologizing for her remarks. Robinson fails to explain how this conduct intimidated him into pleading guilty.
The circuit court did not clearly err when it denied Robinson’s petition for postconviction relief.
Appeal dismissed; motions moot.
. The two sentencing orders that are contained in the record reflect that Robinson was sentenced to a total term - of 540 months’ imprisonment for the offenses charged in case number 60CR-11-3885, with an additional 180 months' imprisonment for the possession of a controlled substance in case number 60CR-13-933. These sentences were imposed consecutively, Therefore, the 60-year sentence (720 months) alleged in the Rule 37,1 petition pertains to the sentences imposed in these two separate cases. | [
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WAYMOND M. BROWN, Judge
hln this divorce case, appellant Don Davis argues that the circuit court erred in dividing his and appellee Cheryl Davis’s property and in failing to award him attorney’s fees. We affirm the circuit court’s rulings.
I. Background
Don and Cheryl were divorced in 2014. During their nineteen-year marriage, they owned a pawn shop, which they sold in 2007. After the sale of the pawn shop, Don did not work outside the home. He drew Social Security and was apparently disabled.
Cheryl, who is fifteen years younger than Don, continued to work after the pawn shop was sold. In 2007, she and her mother, Helen McCoy, purchased a business called |2Bethany’s Design Center for $180,000. Each of them paid $25,000 down, with the balance of the purchase price to be paid in installments of $5,000 per month to the former owner, Ms. Self. Later on, Cheryl and Helen invested another $12,500 apiece in the business. They considered themselves equal partners in Bethany’s and both worked at the shop. Cheryl paid herself $350 per week as wages, but she and Helen agreed that Helen’s wages would be deferred to a later date. Helen worked at Bethany’s for four years.
Bethany’s generated sufficient revenue to pay expenses, repay Ms. Self, and repay Cheryl’s and Helen’s capital investments. Nevertheless, according to Cheryl, the economy was performing poorly and the business was expensive to operate. There was evidence the company’s finances were buttressed by receiving $100,000 in insurance proceeds following a 2009 fire and by Cheryl’s using her and Don’s credit card and line of credit for extra revenue during the shop’s “slow months.”
At some point in 2012, Cheryl and Don separated, and in July 2012, Cheryl sued Don for divorce. The court entered a temporary order giving Cheryl possession of Bethany’s but prohibiting the disposal of marital property. Despite this order, Cheryl decided that Bethany’s should close, and she began selling the store’s inventory at reduced prices in late 2012. By early 2013, the business had sold approximately $220,000 worth of inventory for $98,000. Upon consulting with an accountant, Cheryl used $67,000 of the sale proceeds to pay Helen for her four years of deferred salary. Cheryl and Helen testified that they arrived at the $67,000 figure by calculating the amount that Cheryl had been paid over the same Rtime period: approximately $1,400 per month for 48 months.
Following the sale, Bethany’s was left with about $5,000 worth of inventory and some debt on Cheryl and Don’s credit card and line of credit. The remainder of the $98,000, save a few hundred dollars, went toward Bethany’s final operating expenses.
After liquidating Bethany’s, Cheryl moved from Pope County to Eureka Springs. In May 2013, she bought a business there with the help of a $45,000 loan from Helen. She also signed a contract to buy a house, for which Helen loaned her $5,000 as earnest money.
A month later, in June 2013, a trial was held on the parties’ property-division issues. Don asked for an unequal division of marital property in his favor, claiming that Cheryl had dissipated marital assets by selling Bethany’s inventory for less than fifty percent of its value, then paying $67,000 of the sale proceeds to Helen. Don also informed the court that Cheryl had possibly acquired marital property in Eureka Springs, and he asked that a substantial part of a large firearm collection be declared his separate, non-marital property.
Following the trial, the circuit court entered an order that essentially divided all marital property equally. The court declined to make an unequal division of marital property based on Don’s allegation that Cheryl had dissipated Bethany’s assets. The court found that Bethany’s “did not do that well” and was a “failure,” plus the court credited Helen’s testimony that the $67,000 she received from the proceeds of Bethany’s inventory was compensation for her investment in and work at Bethany’s. However, the court found fault with Cheryl’s making the $67,000 payment do Helen before paying off Bethany’s debts. ' The decree therefore ordered Cheryl to pay two-thirds of the debt on her and Don’s credit card and $15,000 on their line of credit.
| ¿With regard to Cheryl’s Eureka Springs business and home, the court found that there was no equity to divide in those properties because Cheryl had acquired, them solely with borrowed money. The court did, however, hold Cheryl fully responsible for the debt on the properties. As for Don’s claim that part of the gun collection was his separate property, the court noted Don’s testimony on this issue lacked credibility, and the court ruled that all firearms proven by the evidence were marital property. Finally, each party was ordered to pay his or her ’own attorney’s fees. Don filed this appeal.
II. Standard of Revieiv
We review divorce cases de novo. However, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Findings are clearly erroneous when the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. We give due deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. We [¿will.not substitute our. judgment on appeal as to what property interest each party should have; we will decide only whether the court’s order is clearly wrong.
III. Division of Property
At the time a divorce decree is entered, the circuit court shall distribute all marital property one-hajf to each party unless the court finds such a division to be inequitable. There is a presumption that an equal division is fair and equitable. A circuit court has broad powers to distribute property in a divorce case, and it need not do so with mathematical precision. The purpose of our property-division.statute is to enable the trial court to make a division that is fair and equitable under the circumstances. The court is vested with a measure of flexibility in apportioning the total assets, and the critical inquiry is how the total assets are divided.
A. Request for Unequal Property Division
Don argues first that the circuit court should have made an unequal division of marital property in his favor because Cheryl fraudulently dissipated marital assets. He cites the fact that Cheryl sold Bethany’s assets for less than half their value, paid Helen $67,000 from the | (¡sale proceeds, then received a $50,000 loan from Helen to buy a home and business in Eureka Springs. Don correctly states that an unequal distribution of property or other compensatory measure may be justified based on one party’s fraudulent transfer or dissipation of marital assets.
Don begins by challenging the legitimacy of the $67,000 payment to Helen. We see no basis for reversal on this point. The testimony demonstrated that Helen worked at Bethany’s for four years with no salary and that both' she and Cheryl agreed from the beginning of their endeav- or to defer her salary to a later date. Cheryl and Helen also testified that the $67,000 figure was based on the same $350 per week that Cheryl had been paid over a four-year period. Significantly, the trial judge found that Helen’s testimony on this point was credible, and we defer to his superior position to determine a witness’s credibility. Under these circumstances, the evidence supports the court’s finding that the $67,000 payment to Helen was legitimate compensation for her participation in the Bethany’s enterprise.
Don argues next that Bethany’s was a successful business, and he takes issue with the language in the decree that Bethany’s “did not do that well” and was “a failure.” While we agree that characterizing the business as a failure may. have been an overstatement, we do not view each of the court’s findings in isolation. Rather, we determine whether all factors 17considered in the, aggregate support the court’s ruling. In this case, there was evidence that Bethany’s was operating in a difficult economic climate and that at least part of its ability to meet expenses was facilitated by the $100,000 in fire-insurance proceeds and by Cheryl’s use of her and Don’s credit card and line of credit.
For his final argument on this point, Don contends that other reasons justify an unequal division of property in his favor. He cites Arkansas Code Annotated section 9 — 12—315(a)(1)(A), which sets forth various factors that a court must take into account in making an unequal distribution of marital property. These include the parties’ health, income, and employability, among others. Don contends that because he is older than Cheryl, receives social-security benefits, and is disabled, an unequal distribution in his favor was warranted.
As a threshold matter, Don did not develop this argument in circuit court nor obtain a ruling on it. The argument is therefore waived on appeal. In any event, we conclude that the court’s overall division of marital property was equitable, especially in light of the presumption in favor of equal distribution of marital assets.
B. Eureka Springs Property
Don argues next that the circuit court erred in failing to grant him an interest in the home and business that Cheryl purchased in Eureka Springs approximately one month before trial. For the following reasons, we do not agree with Don that reversal is warranted.
|sWe observe at the outset that the Eureka Springs business and the real-estate contract undisputedly qualified as marital property. Assets acquired after separation but prior to divorce are marital property. In particular, we have held that a real-estate contract, signed before a divorce decree is entered, is an enforceable right that is classified as marital property. However, the evidence at trial was that Cheryl acquired the business and made her down payment on the house with borrowed money. The circuit court therefore noted that there was no divisible equity in either property. As a result, the court awarded the properties to Cheryl but held her responsible for all of the indebtedness thereon.
■On the record before us, we cannot say •that the circuit court clearly erred in its ruling. The proof, as developed at trial, does not reveal the existence of any equity in the Eureka Springs properties. Consequently, the court recognized the impracticality of making a division where there was nothing to divide. Moreover, the court saddled Cheryl with all of the debt on the properties. The critical inquiry is how the total assets are divided. Applying this standard, there is no reversible error.
C. Gun Collection
Much of the controversy at trial involved a large gun collection that was valued at $67,627. Don asked the court to award at least some of the guns to him as his separate |,9property. The court instead ruled that all of the guns in evidence were marital property, except for one gun safe that Cheryl had given Don.
On appeal, Don argues that the circuit court clearly erred in failing to award him any guns as his separate property. However, it is apparent from the record that the evidence on this issue was in utter conflict. Don testified that he had received some of the guns as- gifts and that he had given his entire gun collection to his daughter Candace in 2010. His testimony was somewhat corroborated by a family friend. However, Don’s testimony conflicted with his own trial exhibits, which indicated that he had given Candace some, but far from all, of his guns.
According to Cheryl, Don brought home 156 guns in. 2007 after the pawn shop closed — a business in which she and Don were equal shareholders. She stated that she was unaware that Don had given the firearms to anyone and that, when she left the marital residence, the . guns, were still there as far as she knew. -
It was Don’s-burden to prove what'guns were his separate property. Further, the conflicting proof on this issue was for the trial court to resolve. The court expressly found that Don’s testimony on this matter was not credible, and we defer to the court’s superior I mposition to determine a witness’s credibility. We therefore decline to hold that the.trial court’s decision to treat the guns as marital property was clearly erroneous.
IV. Attorney’s Fees
Don’s final argument is that the circuit court erred in ordering both parties to bear their own attorney’s fees. He contends that the court should have awarded attorney’s fees to him because Cheryl had the greater ability to pay. He cites his age, ül health, and limited income as justification for a fee award in his favor. He also claims he is entitled to fees in light of other matters that occurred during trial, along with Cheryl’s alleged “intentional” dissipation of Bethany’s assets and “illusory” loans from Helen. .
It is well established that the circuit court has the inherent power and discretion' to award attorney’s fees in a divorce case. The trial court- has the superior ability to make this determination, and we will not reverse absent an abuse of discretion.
The court did not abuse its discretion here. We note ifiitially that we have rejected Don’s arguments regarding the sale of Bethany’s assets and Cheryl’s acquisition of the Eureka Springs properties. We further observe that the parties’ marital property was evenly divided by the divorce decree and each stands to benefit from the proceeds once the property is sold. Cheryl was also given responsibility for most of the existing debt, and Don received some foreign currency as his separate property, which the testimony showed had a value of |n$80,000. The issue of attorney’s fees must be viewed in light of and in conjunction with property-distribution issues. As well, a court does not abuse its discretion simply by failing to order the party having more income to pay the other party’s attorney’s fees.
Under these circumstances, we will not reverse the trial court’s ruling on this point.
Affirmed.
Virden and Hixson, JJ., agree.
. On certification, our supreme court ruled that the decree in this case was a final, ap-pealable order. Davis v. Davis, 2016 Ark. 64, 487 S.W.3d 803. The case was then remanded to our court for a decision on the merits.
. Don asked that Cheiyl be held in contempt for violating the agreed temporary order. The court refused to do so and instead ordered Cheryl to make Bethany's financial records available to Don.
. The court did award Don one gun safe that Cheryl had given to him as a gift.
. The court also ordered a sale of the parties’ marital home, with the proceeds divided equally; ordered the parties to equally divide the remaining monthly payments owed to them on the sale of rental property; ordered the remaining assets of Bethany’s to be sold with the proceeds divided equally; and ruled that Don would receive foreign currency worth $80,000 as his sole property.
. Fields v. Fields, 2015 Ark, App. 143, 457 S.W.3d 301.
. Id.
. Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265.
. Fields, supra.
. Id.
. Ark. Code Ann. § 9-12-315(a)(1)(A) (Repl. 2015).
. Webb, supra.
. Id.
. Barron v. Barron, 2015 Ark. App. 215, 2015 WL 4366244.
. Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36.
. See Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998); Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824.
. Fields, supra,
. See Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664.
. Id.
. See Colquitt v. Colquitt, 2013 Ark. App. 733, 431 S.W.3d 316.
. Webb, supra.
. O’Neal v. O’Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996).
. Page v. Anderson, 85 Ark. App. 538, 157 S.W.3d 575 (2004).
. See Ark. Code Ann. § 9-12-315(a)(1)(A), which requires marital property to be “distributed.”
. Jones, supra.
. Candace did not testify.
. Cheryl testified that Don owned three to five guns when they got married, but the evidence does not reveal anything further about the identity or disposition of those guns.
. Johnson v. Johnson, 2011 Ark. App. 276, 378 S.W.3d 889.
. Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47.
. Fields, supra.
. Guthrie v. Guthrie, 2015 Ark. App. 108, 455 S.W.3d 839.
. Webb, supra.
. Id.
. Id.
. Don asks that we strike Cheryl's supplemental abstract and addendum on the ground that they are unnecessary and duplicative. We deny the motion to strike. However, we note that we have not considered Cheryl’s supplemental abstract and addendum in making our ruling. | [
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PER CURIAM
liln 2010, appellant Duane Gonder entered a plea of guilty in the Drew County Circuit Court to first-degree murder and aggravated assault in case no. 22CR-09-99 for which he was sentenced to 360 and 72 months’ imprisonment, respectively. He algo entered a guilty plea on the same day to furnishing prohibited articles, into a correctional facility in case no. 22CR-10-53 for which he was sentenced to 120 months’ imprisonment. The- sentences in both cases were ordered served consecutively for an aggregate term of. 552 months’ imprisonment.
On July 20, 2015, Gonder filed in the trial court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in 22CR-09-99. "While the petition was filed only in 22CR-09-99, it raised issues pertaining to 22CR-10-53 as well as 22CR-09-99. Gonder later filed an amended petition in 22CR-09-99 in which he again raised- arguments in' both cases. In its order, the trial court addressed Rthe claims raised with respect to both cases and declined to issue the writ. Gonder brings this appeal. Gonder filed motions seeking to supplement the record, to file a supplemental argument in this appeal, and for appointment of counsel. Because the appeal is clearly without merit, those motions are moot;
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7, 2014 WL 197789. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The trial court’s findings of fact, on which it bases its1 decision to grant or deny the petition for writ of error coram nobis, will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Newman, 2014 Ark. 7, 2014 WL 197789. There is no abuse of discretion in the denial of error-coram-nobis relief when the claims in the petition were groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coramnobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there, existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of deni-onstrating a fundamental error of fact extrinsic to the record.. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
[¡¡The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. ■. A writ of error coram nobis is available for addressing certain errors that are found in one .of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
Gonder’s first point for reversal of the order is that the trial court abused its discretion by accepting his guilty plea because the plea was coerced by “overcharging” by the State. He bases the claim on the fact that he was originally charged with kidnapping and aggravated residential burglary and that those charges were dropped in exchange for his plea of guilty. He contends that those charges, as well as the furnishing-a-prohibited-articles charge and the capital-murder charge that was reduced to first-degree murder, were not supported by the evidence.-
Gonder concedes that this court has held that a petitioner’s fear of a more severe sentence, if he opts to stand trial rather than enter a plea of guilty, is not coercion which warrants granting a writ of error coram nobis. Nevertheless, he argues that the circumstances of his case are such that the writ is warranted because there was no “report, prosecution cover sheet or a primary victim information sheet concerning the kidnapping and aggravated-residential burglary charges, which the State used to enhance the murder charge to capital murder.” He also argues that the State, withheld evidence from the defense in the form of victim-impact statements and “the classification of the punishment and statute on the charge of furnishing a prohibited article,” a crime of which he is actually innocent.
l/The trial court held that Gon-der’s claims did not justify granting co-ram-nobis relief, and we agree. With respect to Gonder’s contention that his guilty plea was coerced by overcharging, his argument primarily rested on the strength of the evidence against him. In his petition, he asserted at length that the facts that supported the original charges were insufficient to sustain the charges. Issues concerning the sufficiency of the evidence or the credibility of witnesses, however, are not cognizable in coram-nobis proceedings. McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 685, cert. denied, — U.S. -, 135 S.Ct. 1432, 191 L.Ed.2d 391 (2015). Gonder did not demonstrate that his plea was obtained through intimidation, coercion, or threats inasmuch as the petition did not allege that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable for coram-nobis relief. Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. The mere fact that Gonder was aware that he could receive a more severe penalty if he went to trial did not rise to the level of coercion within the purview of a coram-nobis proceeding. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
As his second ground for reversal of the trial court’s order, Gonder argues that the State withheld material evidence pertaining to the charge of furnishing a prohibited article into a correctional facility. If the claim were proven, it would be ground for the writ because the State’s withholding of material evidence is cause to grant the writ in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been ^disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936, (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth of those claims. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662.
Gonder did not demonstrate a Brady violation in his petition because his claim was based entirely on the sufficiency of the evidence to prove the charge. Any challenge he desired to raise to the charge should have been raised before he chose to enter a plea of guilty. Swift v. State, 2015 Ark. 381, at 4, 2015 WL 6395914 (per curiam). A claim that the evidence did not establish that he was guilty was outside the purview of a coram-nobis proceeding. Id.
Gonder next asserts that the State withheld victim-impact statements from the defense. He contends that the State concealed a statement his mother had made in a letter to the prosecutor concerning the suffering she had endured because Gonder and the murder victim were both her sons. The allegation must fail because it is clear that Gonder was aware of who the victims were before he entered his plea, and he offered no fact in his petition to establish that the State concealed the opinions of those victims from the defense before the plea was entered. A court considering a claim of a Brady violation in a coram-nobis petition in not required to take the allegation at face value without substantiation. Ventress v. State, 2015 Ark. 181, at 5, 461 S.W.3d 313, 316 (per curiam). Moreover, Gonder did not demonstrate with facts that he would not have entered a plea of guilty or that the IfiQutcome of the proceeding would otherwise have been different had the defense had access to a particular statement. The petitioner in a coram-nobis proceeding has the heavy burden of demonstrating with proof that there existed some fact that would have prevented rendition of judgment had it been known to the trial court and that, through no negligence or fault of his, was not brought forward before rendition of judgment. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374.
Because Gonder’s petition for writ of error coram nobis did not state a cognizable claim for relief, the trial court did not abuse its discretion in denying his petition. White v. State, 2015 Ark. 151, 460 S.W.3d 285. Accordingly, we affirm the order.
Affirmed; motions moot. | [
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■ ROBIN F. WYNNE, Associate Justice
| Appellants Wendy Jones and Lynn Gangemella filed a law suit against appellees Ted Douglas and John Paul Morrison, Individually and d/b/a Polymers. Inc., in the Garland County Circuit Court on June 3, 2008. Appellants obtained a default judgment, which the circuit court later set aside due to a defective summons and resulting lack of personal jurisdiction over the appellee-defendants, and appellants’ complaint was ultimately dismissed with prejudice. We accepted' this appeal after both sides petitioned for review of the court of appeals’ decision. Jones v. Douglas, 2015 Ark. App. 488, 470 S.W.3d 302. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Bohannon v. Robinson, 2014 Ark. 458, at 4, 447 S.W.3d 585, 587. On appeal, appellants argue that the circuit court .erred (1) in setting aside the default judgment and (2) in dismissing their complaint with prejudice. We affirm the circuit court’s ruling setting 1zaside the default judgment, and we reverse the dismissal with prejudice and remand for entry of an order consistent with this opinion, because on this record, appellants are entitled to the benefit of the savings statute,' codified at Arkansas Code Annotated section 16-56-126 (Repl. 2005).
I. Background
Appellants filed a complaint for breach of contract, non-disclosure,. rescission, damages, and negligence against appellees on June 3, 2008. Appellants purchased a house located at 200 Bafanridge in Hot Springs, Arkansas, for the sum of $345,900. Appellees Ted Douglas and John Paul Morrison were the sellers of the real property. Appellants took out a second mortgage on the property with Polymers, Inc., in the amount of $13,000; appellants signed an installment promissory note in that amount on December 5, 2005. In their complaint, appellants alleged that appellees had failed to disclose and had covered up certain problems with the property, including construction not being up to code and major water-intrusion issues.
Appellants attempted to serve appellees with a copy of the complaint and summons by certified mail at their address in Costa Rica pursuant to Ark. R. Civ. P. 4(d)(8)(A) (20,08). On August 14,. 2008, appellants’ attorney, Jonathan D. Jones, filed three affidavits — one for Douglas and Morrison “individually and d/b/a Polymers, Inc.” and one for Polymers, |sInc. — stating that a certified letter containing copies of the summons and complaint had been mailed but had been returned to Jones’s office on August 8, 2008. It was mailed to APDO #23, Catie, Turrialba, Costa Rica, 7170, and Jones stated that he was unable to read the language as to why it was returned; therefore, he was going to run a “Warning Order” in the Sentinel Record. On August 22, 2008. Jones filed three amended proof-of-service affidavits stating that the letters had been returned to his office on August 8, 2008, marked “refused.”
On September 5, 2008, appellants filed a motion for default judgment. Appellants stated that after the "attempted service had been returned marked “refused,” they again mailed the papers to appellees on August 21, 2008, by certified mail, restricted' delivery, return receipt requested, pursuant to Rule 4(8)(A)(ii), stating that despite said refusal, the case would proceed and that judgment by default might' be rendered against them unless they appeared to defend the suit; to that date, appellees had not responded to the complaint. On September 9, 2008, the circuit court entered an order of default judgment in which it awarded judgement against separate appellees for damages for the full contract .price of $345,900; for interest at the maximum rate allowed by law per an-num until paid in full; and for attorney’s fees and costs in the sum of $3,000. In addition, the second mortgage was held void and the amount of judgment was set off and reduced by the amount of the second mortgage. Appellees were directed to prepare a schedule of property and claimed exemptions. Garnishment proceedings followed.
l4On July 10, 2014, appellees filed a motion to set aside the default judgment on the grounds that each summons was defective on its face in that it incorrectly stated that appellees had twenty days, rather than the thirty days allowed for out-of-state residents, to answer the complaint; therefore, appellees argued that the circuit court never acquired personal jurisdiction over them, and the default judgment was void ab initio. On the same day, appellees filed a motion to quash writs of garnishment issued by the Garland County Circuit Clerk on June 23, 2014. Appellants responded to the motion to set aside by arguing that appellees were residents of Arkansas and were properly served pursuant to Rule 4(8)(i); alternatively, appellants argued that any error in the response time was harmless because appellees suffered no prejudice and had manifested their assent to the judgment; furthermore, they argued that setting it aside would prejudice them and be contrary to the policy behind default judgments. Appellees filed a reply brief. The circuit court issued a letter opinion in which it found as follows:
These Defendants were served with summons and complaint in 2008. They have alleged that they were non-residents of the State of Arkansas at that time. Although the Plaintiffs have denied this and averred that the Defendants did reside in Arkansas then, the Court finds that in Paragraph 2 of their complaint filed on June 3, 2008, the Plaintiffs stated that these Defendants resided in the nation of Costa Rica. Rule 4, Ark. R. Civ. P., as it read at the time, stated that Arkansas residents were to be given 20 days after service to answer a complaint, and non-residents were to be given 30 days. The rule also required that the summons specifically state “the time within which these rules require the defendant to appear.” Id. paragraph (b). The summons served in this case stated that the answer must be filed within 20 days, and it should have said 30 days, since the Court finds these Defendants were, in fact, not residents of Arkansas at the time.
The summons was clearly in error, and the Arkansas Supreme Court has said that, this type of error in a summons is a fatal error, and unless a summons that meets all the requirements of Rule 4 is served on the Defendants, the Court fails to obtain jurisdiction over the cause. Vinson v. Ritter, 86 Ark. App. 207, 167 S.W.3d 162 (2004); Smith v. Sidney Moncrief Pontiac, Buick GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). Service of a proper summons must be perfected within 120 days after the complaint is filed, or the Court fails to obtain jurisdiction. Rule 4(i); Smith, supra, at 710 [120 S.W.3d 525]. This requirement was not met here. . Therefore, the original default judgment is void and must be set aside. It follows that the writs of garnishment and all other process are also void and must be set aside.
The court entered an order granting the motion to set aside the default judgment and setting aside all actions taken in the case; the letter opinion was attached to the order and incorporated therein. Appellants filed a notice of appeal on September 18, 2014. On October 9, 2014, appel-lees filed a motion to dismiss the case with prejudice, arguing that service was never completed and that the savings statute did not apply. Appellants responded in oppo sition, and the court entered an order granting the motion to dismiss with prejudice, along with a Rule 54(b) certificate, on November 18, 2014. Appellants filed an amended notice of appeal, including in its designation the November 18 order.
II. Setting Aside the Default Judgment/Rule k
Appellants first argue that the circuit court erred in setting aside the default judgment on the grounds that the summons stated that the defendants had twenty days to respond, rather than the thirty days afforded to out-of-state residents under Rule 12(a)(1) (2008). This court reviews a circuit court’s factual conclusions regarding service of process under a clearly erroneous standard. State v. West, 2014 Ark. 174, at 4, 2014 WL 1515898 (citing Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983)). Appellants contend that appellees never changed their residence to Costa Rica, citing the facts that appellees maintained businesses, assets, financial |6accounts, and personal interests in Arkansas, and ultimately moved back to Arkansas in 2012. Essentially, appellants argue that despite appel-lees’ absence from Arkansas for six years, they always maintained their residence here and intended to return. To the extent that appellants argue that the circuit court clearly erred in finding that appel-lees were non-residents at the time of service, we disagree. Appellants themselves stated in their • complaint that appellees were “residents” of Turrialba, Costa Rica. The record reveals that appellees sold their home in Arkansas and purchased property in Costa Rica; that they lived in Costa Rica from 2006 until 2012; and that they acquired permanent-residency status from the Costa Rican government. There is no requirement that people sever all ties with Arkansas in order to become residents of another jurisdiction. On this record, we hold that the circuit court did not clearly err in its residency finding.
Because the circuit court did not clearly err in finding that appellees were not residents of Arkansas at the time appellants attempted service on them, appel-lees had thirty- days from the date of service to file an answer or otherwise respond to the complaint. See Ark. R. Civ. P. 12(a)(1) (2008). The summonses in the present case incorrectly stated that appel-lees had twenty days to respond. This court has written:
Our case law is well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court has held that the same reasoning applies to service requirements imposed by court rules. Id. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact. Id. Actual knowledge of a proceeding does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra; Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).
Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 3-4, 306 S.W.3d 428, 430. Recently, in Earls v. Harvest Credit Mgmt. VI-B, LLC, 2015 Ark. 175, 460 S.W.3d 795, this court reaffirmed the strict compliance standard and held that because Harvest’s summons contained an incorrect response time, which was not applicable to the defendant in that particular case, it failed to meet the requirements of Rule 4(b) and Rule 12(a) by incorporation; accordingly, this court reversed the grant of a default judgment. Here, similarly, the summonses failed to strictly comply with the requirements of Rule 4(b), and the circuit court properly granted the motion to set aside the default judgment.
Finally, appellants argue that ap-pellees are estopped from seeking relief from the default judgment because they “manifested their intent to treat the judgment as valid.” Appellees failed to obtain a ruling from the trial court on this issue, and we therefore do not address it. See Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, at 11, 422 S.W.3d 116, 122 (stating that the failure to obtain a ruling on an argument precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal). The circuit court’s order setting aside the default judgment is affirmed.
III. Dismissal with Prejudice/Savings Statute
Next, appellants argue that even if the circuit court did not err in setting aside the default judgment, it erred when it entered the dismissal with prejudice. Our savings statute, Arkansas Code Annotated section 16-56-126 (Repl. 2005), provides in part:
ls(a)(l) If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the non-suit suffered or judgment arrested or reversed.
The savings statute reflects the General Assembly’s “intent to protect those who, although having filed an action in good faith and in a timely manner, would suffer a complete loss of relief on the merits because of a procedural defect.” Rettig v. Ballard, 2009 Ark. 629, at 3-4, 362 S.W.3d 260, 262 (citing Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988)). The case of Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260, is instructive. In that case, the summonses were defective in that they indicated that the defendant had twenty days to respond, rather than the correct thirty days; this court held that the plaintiff was entitled to the benefit of the savings statute because the complaint was timely filed and the complaint and summons, though defective, were timely served. This court quoted with approval the statement in Arkansas Civil Practice and Procedure that the savings statute applies if “a timely, completed attempt at service is made but later held to be invalid.” David Newbern, John Watkins & D.P. Marshall Jr., Arkansas Civil Prac. & Proc. § 5:10 (5th ed. 2011).
Here, the circuit court found that the savings statute did not apply because service of process was not completed. For service outside Arkansas, Rule 4(e) (2008) provides that service may be made “when reasonably calculated to give actual notice” by mail as provided in Rule 4(d)(8). According to Arkansas Code Annotated sec tion 16-58-132, where service of summons, process, or notice is provided by registered or certified mail, and the addressee “refuses to accept delivery, and it is so stated in the return receipt of the United States Postal | ¡¡Service, the written return receipt, if returned and filed in the action, shall be deemed an actual and valid service of the summons, process, or notice.”
Here, the summonses and complaints were mailed to appellees by registered mail at their last known address in Costa Rica, return receipt requested. Appellants assert that when the summonses and complaints were “refused,” service was then and there .“completed” as provided for by Arkansas Code Annotated section 16-58-132 and the Arkansas Rules of Civil Procedure. Arkansas Rule of Civil Procedure 4(d)(8)(A)© (2008) provides in pertinent part: “Service of a summons and complaint upon a defendant ... may. be made ... by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.” When the envelopes containing the complaints and summonses were returned to appellants’ attorney, each envelope was marked with a Costa Rican postal service stamp that contained several options for delivery; each envelope was marked “refused.” Rule 4 provides that upon notice of refusal, the plaintiff must promptly send the papers by first class mail, which appellants’ attorney represented to have done. The circuit court relied on affidavits from appellees Douglas and Morrison that they did not refuse mailed service or authorize anyone else to refuse it for them; however, those same affidavits state that they did not personally'check their post-office box in Costa Rica and instead sent their farm manager to do so. Thus, while the farm manager 'may not have been “authorized in accordance with U.S. Postal Service Regulations” under Rule 4(d)(8)(A)®, we need not decide whether this was adequate to prove service via refusal. We hold that appellants made a timely, completed, attempt to serve ap-pellees and should be afforded the benefit of the savings statute.. The |indismissal “with prejudice” is reversed, and the case is remanded for entry of an order consistent with this opinion.
Affirmed in part; reversed and remanded in part; court of appeals’ opinion vacated.
. Also named as a separate defendant was Robert Bedford, Individually and d/b/a Robert Bedford Home Inspection Service. Bedford filed an answer to the complaint, but he was dismissed from the case upon appellants' motion in October 2008 and is not a party to this appeal.
\ Polymers, Inc., was an Arkansas corporation which, according to the complaint, has been revoked and whose registered agent was . John-Paul Morrison. '
. It is undisputed that no warning order was ever issued.
. To the extent that appellants’ arguments focus on "domicile" or "citizenship," they are misplaced, as Ark. R. Civ. P. 12 speaks in terms of where a defendant is “residing.’’ See Ark. R. Civ. P. 12(a)(1)(A) ("[A] defendant not residing in this state shall file an answer within 30 days after service.’’). | [
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HOWARD W. BRILL, Chief Justice
11 Appellant Marilyn J. Worsham, pro se, appeals from the decision of the Board of Review (Board) affirming the decision of the Appeal Tribunal, which upheld the denial of her unemployment benefits by ap-pellee Daryl Bassett, Director, Department of Workforce Services (Department). On appeal, Worsham argues that the court of appeals should have ordered the Board to conduct a further hearing to take additional evidence; that the Board and the Appeal Tribunal erred in refusing to offer a further hearing, thereby denying her equal protection guaranteed by the United States Constitution; and that the Board erred in ruling that she did not meet the wage requirements pursuant to Arkansas Code Annotated section 11-10-507(5)(A) (Repl. 2012), for establishing an unemployment-benefit claim. We affirm the Board’s decision.
On May 6, 2012, the American Association of Retired Persons (AARP) hired Worsham as a part-time employee for the AARP Senior Community Service Employment^Program (SCSEP), which is grant-funded through the United States Department of Labor. AARP, a 501(c)(3) nonprofit organization according to its Internal Revenue Service Form 990,.placed senior citizens in host agencies for job training while they searched for employment. Worsham’s base period began April 1, 2013, and lasted through March 31, 2014. During Worsham’s base period, AARP was her only employer, and she received wages only from AARP during that time. Terri Boone, AARP’s project director, indicated that Worsham was paid under Title V of the Older Americans Act. See 42 U.S.C. § 3056.
On July 7, 2014, Worsham, after working in the AARP SCSEP office, was transferred to a host agency, and her pay was reduced from $12.00 per hour to $7.25 per hour. During her work training, she was required to continue to search for work. According to Worsham, she filed for unemployment benefits when she received the reduction in pay after her transfer. On July 24, 2014, the Department of Workforce Services denied Worsham’s claim for benefits, finding that she did not have covered wages during her base period to qualify for benefits pursuant to Arkansas Code Annotated sections ll-10-522(a) and 11-12-507(5)(A). Worsham timely appealed the Board’s decision to the Appeal Tribunal. After a hearing during which Worsham appeared on her behalf, the Appeal Tribunal affirmed the Board’s decision, finding that Worsham “only had wages from a nonprofit organization during her base period.” Citing section 11-10-522(a) and section 11-10-507(5)(A), the Appeal Tribunal concluded that wages from a nonprofit organization were not qualified wages for unemployment-insurance purposes and that Worsham did not have qualifying wages to establish her claim.
IsOn August 26, 2014, Worsham wrote a letter to the Board asking it to consider her record of wages before the Appeal Tribunal, including a printout of wages from AARP dating from May 2012 through April 30, 2014. In a letter dated August 27, 2014, the Board advised Wors-ham that, pursuant to section 11-10-525(c), the Board was without jurisdiction to accept or consider additional evidence unless accepted by the Board in a subsequent hearing, and the Board stated that it would render its decision based on the record forwarded by the Appeal Tribunal. Worsham timely filed an appeal to the Board, which affirmed and adopted the Appeal Tribunal’s ruling. The Board found that Worsham did not meet the wage requirements, pursuant to Arkansas Code Annotated section 11-10-507(5)(A), for establishing a claim. Worsham appealed to the court of appeals, which affirmed without written opinion. See Worsham v. Bassett, No. E-14-864. Worsham then petitioned this court for review, which we granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Blake v. Shellstrom, 2012 Ark. 428, 424 S.W.3d 830. We turn to Worsham’s appeal from the Board’s decision.
On appeal, Worsham argues that the Board erroneously ruled that she did not meet the wage requirements for establishing a claim. The Department responds that employment had been funded by a federal grant as part of a work-relief or training program is not considered employment for the purposes of unemployment benefits.
The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. See, e.g., Rose v. Harbor E., Inc., 2013 Ark. 496, 430 S.W.3d 773. The basic rule of statutory construction to which all other | interpretive guides defer is to give effect to the intent of the drafting body. See id. In reviewing issues of statutory interpretation, we first construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. See id.
The Board based its decision on section 11 — 10—507(5) (A):
(5)(A) Qualifying Wages. For any benefit year, he or she has during his or her base period been paid wages in at least two (2) quarters of his or her base period for insured work, and the total wages paid during his or her base period equal not less than thirty-five (35) times his or her weekly benefit amount.
Section 11-10~507(5)(A) does not expressly state that wages from a nonprofit organization are not qualifying wages. Although wages from a nonprofit organization may constitute qualifying wages under section 11-10-507(5)(A), an exception applicable to this case is found at Arkansas Code Annotated section ll-10-210(a). That section provides in relevant part:
(3) Service performed by an individual in the employ of a religious, charitable, educational, or other organization described in Section 501(c)(3) of the Internal Revenue Code of 1954 if the organization had one (1) or more individuals in employment for some portion of a day in each of ten (10) different days, whether or not the days were consecutive, within the current or preceding calendar year irrespective of whether the same individuals are or were employed in each day;
(4) For the purposes of subdivisions (а)(2) and (3) of this section, the term “employment” does not apply to service performed:
(E) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving the work relief or work training.
1 ,-Ark.Code Ann. § ll-10-210(a)(3)-(4),
Given the plain language of the statute, section ll-10-210(a)(4) means that employment “does not apply to a service performed” in “an unemployment work-relief or work-training program,” that is funded by a federal grant. Here, Wors-ham’s employment with AARP fits this statutory scheme. She was employed by AARP, a nonprofit organization that paid her wages through a federal grant. Thus, based on our statutory interpretation of section ll-10-210(a)(4), we hold that her employment with AARP was excluded, and she did not qualify for unemployment benefits.
Further, Worsham contends that the Board erred in refusing to accept additional evidence at another hearing and that denying her that hearing violated her equal-protection rights guaranteed by the United States Constitution. Here, the Board properly decided the matter after considering the entire record of prior proceedings before the Appeal Tribunal. See Ark.Code Ann. § ll-10-525(c). Additionally, we decline to reach Worsham’s equal-protection argument because the Board did not make a specific finding on that issue. When an argument is not raised below or ruled upon, the issue is not preserved for appellate review. See Mountain Pure, LLC v. Little Rock Wastewater Util., 2011 Ark. 258, 383 S.W.3d 347; Nelson v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 533. For these reasons, Wors-ham’s argument on this issue is without merit.
Affirmed. | [
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RHONDA K. WOOD, Associate Justice
11After a jury trial, Alvin Fukunaga was convicted of rape and sentenced to ten years in prison. He contends that he received ineffective assistance of counsel when his defense attorney failed to object to testimony that allegedly bolstered the victim’s credibility. The circuit court rejected this claim. We affirm the circuit court’s judgment.
In March 2012, Mvin Fukunaga was charged with rape. His step-granddaughter had alleged that Fukunaga started sexually abusing her when she was twelve years old. At trial, the victim, then twenty-three, repeated these allegations and also testified that Fukunaga had raped her multiple times when she was sixteen. The victim also identified a mole on Fukunaga’s upper thigh, something she noticed in the course of the abuse.
A sheriffs deputy also testified. The deputy described, briefly, his experience investigating “hundreds” of sexual-abuse allegations. The deputy testified that it was “very, very difficult for [the victims] to bring out whát has occurred to them because it was very traumatic to them.” The deputy stated that, in his experience, abuse victims sometimes ^disclose the abuse long after the fact for fear of breaking up a family unit. Finally, in response to the prosecutor’s inquiry whether “someone who suffers sexual abuse has repressed or they just bury deep down,” the deputy responded as follows:
They do bury deep down. And, you know, during the interview process, I may mention something that will cause them to click and say, okay ... you know what, that reminds me of something else. And so it depends on the interview also on how that is going.... My questions may cause them to recall something else that, you know, they have been held way deep down inside.
Fukunaga’s defense counsel never objected to this line of questioning. However, on cross-examination, the deputy admitted that he was neither a psychologist nor an expert on “the nature of memory.”
The jury found Fukunaga guilty. On direct appeal, our court of appeals affirmed his conviction. See Fukunaga v. State, 2014 Ark. App. 4, 2014 WL 69151. After the court of appeals issued its opinion, Fukunaga filed a petition for postcon-viction relief at the circuit court. Fuku-naga argued that he received ineffective assistance of counsel because his defense counsel failed to object to the deputy’s testimony. A hearing was held on the petition. There, defense counsel testified that he thought the deputy’s testimony was admissible and, regardless, that he could “neutralize it on cross-examination.” Counsel also noted that “as a general rule in my trial practice I try not to object very much at all ... if I can get the same result through something other than an objection.”
The circuit court issued a written order denying Fukunaga’s claim of ineffective assistance of counsel. Among other things, the circuit court held that defense counsel’s failure to object was based on trial strategy and that his performance was therefore not deficient. Because this finding is not clearly erroneous, we affirm on this basis alone. See State v. Lacy, 2016 Ark. 38, at 4, 480 S.W.3d 856 (“We do not reverse the -... denial of postconviction relief unless the circuit court’s findings are clearly erroneous.”).
Under the two-prong standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner seeking postconviction relief must show that his counsel’s performance was deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. “There is a strong presumption that counsel’s conduct falls -within the wide range of reasonable professional assistance, and the petitioner has the burden'of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment.” Id. at 4, 454 S.W.3d at 738. “Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v. State, 342 Ark. 35, 41-42, 26 S.W.3d 123, 127 (2000). In short, a matter of reasonable trial strategy does not constitute , deficient performance. See, e.g., State v. Fudge, 361 Ark. 412, 425, 206 S.W.3d 850, 860 (2005) (holding that counsel’s decision to not investigate certain mitigating evidence was “within the wide range of reasonable professional’ assistance” and was not- deficient performance).
Counsel testified during the postconviction hearing that his decision not to object to the deputy’s testimony was based on trial strategy. He stated the following: “[R]egardless of its admissibility I didn’t think it was damaging in any way that couldn’t be addressed on cross-examination.” Indeed, at trial, counsel followed-up and addressed the issue on cross-examination by having the deputy admit that he was neither a psychologist nor an expert in | ¿memory-retrieval; the deputy also admitted that some rape allegations were fabricated, which advanced the defense’s theory of the case. Counsel further explained his general preference, as a matter of trial strategy, to withhold objections on direct examination and instead attack the testimony on cross-examination: “[Rjather than objecting in front of a jury who wonders what sort of testimony I am scared of or trying to hide from them, I’d much rather do that. I think the client is better served that way.” Counsel’s strategy was within the realm of reasonable professional judgment.
The deputy’s testimony, moreover, played a small role in the present case. Most of his testimony was based on his own experience investigating sexual-abuse allegations. Even beyond this, counsel pointed out on cross that the deputy was not an expert, so the jury had no special reason to give his testimony undue credit. Cf. United States v. Rosales, 19 F.3d 763, 766 (1st Cir.1994) (finding no plain error when expert witness bolstered victim’s testimony while also noting that expert testimony could create prejudice due to its “aura of special reliability and trustworthiness”).
We note that this case is unlike Montgomery v. State, where we found ineffective assistance after counsel failed to object to explicit bolstering testimony. 2014 Ark. 122, 2014 WL 1096052. There, the defendant was charged with raping a child. During the State’s case, the prosecutor asked a social worker whether the victim’s allegations were “believable.” 2014 Ark. 122, at 4, 2014 WL 1096052. The prosecutor also asked whether the victim’s allegations had been coerced by the victim’s mother. Id. Counsel failed to object to either question. Id. Because the case “turned on the credibility of the child victim,” we held that the defendant proved ineffective assistance based on counsel’s failure to object. Id. at 7.
|flThere are two key distinctions between this case and Montgomery. First, the State here never asked the deputy whether the victim’s allegations were “believable” or to otherwise assess the victim’s credibility; rather, the deputy simply reflected on his experience investigating abuse allegations. Second, counsel in Montgomery never testified that his decision to withhold objections was based on trial strategy; here, though, counsel withheld an objection because he did not want the jury to think he was afraid of the deputy’s testimony.
In conclusion, we affirm the circuit court’s ruling that counsel’s failure to object was based on trial strategy. Because we can affirm on this basis, we decline to address Fukunaga’s argument that he suffered prejudice because “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Henington v. State, 2012 Ark. 181, at 5, 403 S.W.3d 55, 59 (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
Affirmed.
Wynne, J., concurs. | [
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KAREN R. BAKER, Associate Justice
hOn May 14, 2015, appellant, Ardwin Frank Sylvester, was convicted by a Sebastian County Circuit Court jury of kidnapping, rape, and aggravated robbery and sentenced to three terms of life imprisonment. On May 20, 2015, Sylvester timely filed his notice of appeal. On October 16, 2015, Sylvester filed his brief with this court, and the State timely responded. Sylvester raises two points on appeal: (1) the State provided insufficient evidence to find Sylvester guilty of kidnapping, rape, or aggravated robbery; (2) the circuit court erred when it denied Sylvester’s motion for mistrial. We have jurisdiction pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2015).
Sylvester’s convictions arise from the June 24,2014 kidnapping, rape, and aggravated robbery of DeAnn Opitz. The record demonstrates that on June 24, 2014, Opitz went to a Staples office supply store in Fort Smith, Arkansas, around 11:00 a.m. After completing her purchase and returning to the driver’s side of her car, Opitz testified that a man approached 12her from behind, was armed with a silver and black automatic weapon, and told her to get in the car and “scoot over” to the passenger seat. She testified that she tried to give him her purse, her keys, and her car — anything to leave her there in the parking lot. Opitz testified that she stood still at his commands and Sylvester said, “I am a bad motherfucker and I will use this gun”; she then complied and got in the car and moved over to the passenger seat. Opitz testified that she saw two Staples employees, with one employee on the phone. Opitz further testified that as Sylvester pulled out of the Staples parking area, the employee gave her a thumbs-up sign, and she shook her head “No” and gave him a thumbs-down sign. Opitz testified that they traveled on State Highway 10 and once they got to a residential area, Sylvester told her to “take [her] titties out so he could see them.” She begged him not to rape her, and she said he told her he just wanted to see them, while continuing to drive, laid the gun in his lap, and pointed it at her. Opitz testified that he fondled her breasts with his right hand and was very rough tearing the straps to her dress. Opitz testified that Sylvester kept driving and went out to the industrial-park area and at that point asked her to pull up her dress so he could see her panties. Opitz again asked him not to rape her, and Sylvester made sure she knew he had the gun; she complied and pulled up her dress. With the barrel of the gun pointed at her from his lap, Sylvester instructed her to pull her panties to one side, he inserted his fingers into her vagina over and over. Opitz testified that after this, Sylvester unzipped his pants and ordered her to touch his penis. She testified that during this time Sylvester made sure that Opitz knew he could get to the gun and use it if she did not comply. She testified that after this, that they continued to drive around and were close to |sAshdown, and Sylvester let her cover herself back up. She testified that Sylvester then began to go through her purse, took money from her purse, and shoved the money into the pockets of his jeans. She testified that they were driving through off-road rugged country and she feared for her life.
Opitz testified that once they got to Ashdown, Sylvester turned into a Burger King, instructed Opitz not to make any gestures or signals or talk to people or she would be hurt as well as people inside the restaurant, and he ordered two drinks. After leaving Burger King, Sylvester pulled into a nearby EZ Mart because the fuel light in Opitz’s car had come on and the vehicle needed gas. Opitz testified that when they pulled in the EZ Mart, Sylvester put the gun into the waist of his jeans and told her again to not make any gestures, moves, or statements to anybody. Sylvester went inside to prepay for gas. Opitz testified that when he returned, he was having trouble getting the gas tank open, asked her to exit the car and open the tank, which she did. Opitz testified that after helping Sylvester open the gas tank, she returned to the car and did not put her seat belt on. While Sylvester was pumping gas, a truck with a trailer with lawnmower equipment pulled in a few feet from her door. Opitz testified that she saw the truck as an opportunity to escape because there was something between her and Sylvester. She testified that she “threw open the door and ran to the far side of that trailer and truck so there was something between me and him, and I ran straight into the door of the EZ Mart and I told him to the lock the door, that he had a gun and I had been kidnaped.” Surveillance video from the EZ Mart was obtained, admitted into evidence, and played for the jury. Opitz testified that the video accurately reflected what | happened that day and also identified Sylvester. Finally, Opitz identified Sylvester at trial as the perpetrator.
Staples employee Jimmy Keith testified that he worked the register that day and that he checked Opitz out with her products. Keith testified that the front of the store is all glass, and he watched Opitz leave the store. He also testified that he saw a man in the parking lot in a crouched position with something in his hand, a pipe possibly, that the man headed toward Op-itz’s car and rushed behind Opitz so Opitz could not see him. At this point, Keith testified that he felt something suspicious was happening and called for his manager, Tad Steffenson. Keith testified that he first thought the man was carrying a gun, and then he decided it might be a pipe. Staples manager, Steffenson, testified that once he was summoned, he ran out the front door, and the car was thirty feet away from him. He testified that he saw Opitz in the passenger seat and gave her a thumbs-up sign and she shook her head “No” and gave a thumbs-down sign. Stef-fenson said when he saw this he was already calling 911 about a possible abduction and while on the phone with 911 gave her a second thumbs-up sign and Opitz again responded in the negative and gave him a thumbs-down sign.
Sylvester was tried and convicted as recited above, and this appeal followed.
A. Sufficiency of the Evidence
For his first point on appeal, Sylvester asserts that the circuit court erred in denying his motions for directed verdict because the State provided insufficient evidence to find Sylvester guilty of kidnapping, rape, or aggravated robbery. In reviewing a challenge to the | insufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
We begin our analysis by reviewing Sylvester’s motions for directed verdict. It is a well-settled principle of appellate law that arguments not raised at trial will not be addressed for the first time on appeal. Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Likewise, parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id. Here, the record demonstrates that at trial, Sylvester based his motions for directed verdicts exclusively on jurisdiction. Sylvester argued that for all three crimes, the jury would be “left to guess whether the crimes occurred in Sebastian County” and solely argued jurisdiction as a basis for his motions for directed verdicts. Therefore, at trial, Sylvester did not challenge whether the State had proved the elements of the offenses as he does now on appeal.
At trial, with regard to the kidnapping, Sylvester made the following motion for directed verdict:
Defense AttoRney: Your Honor, we would move to dismiss the charge of kidnapping. Your Honor, the basis of that charge would be lack of jurisdiction for the Court. The basis of our motion, Your | fiHonor, is in the Court section Statute 16-68—
The COURT: That is the same argument that we had [the] hearing on?
Defense AttoRney: Yes, sir.
The CouRt: You are just wanting to renew it or do you want to restate it?
Defense AttoRney: Yes, Your Honor, I don’t mind restating it, Your Honor. I would also add, Your Honor, the additional things that we have heard was we have had positive testimony that he was arrested in Sevier County from Officer Gentry with the Police Department. We heard Officer McWhirter say that he labeled it as a kidnapping case. Your Honor, of course, that statute says that jurisdiction may both lie in any county where someone is abducted or taken, but then in Part (b), the controlling part is that jurisdiction, it says the Court where the Defendant was arrested shall try the case to the exclusion of all others. Your Honor, we feel like that is a jurisdictional statute. The Defendant, as I mentioned before,' has a right to raise that. We would ask for a directed verdict of acquittal on that charge on that basis.
Next, on the rape charge, Sylvester made the following motion for directed verdict:
Defense Attorney: Your Honor, we would move to dismiss the charge of rape. Your Honor, the basis of our motion on that would also be lack of jurisdiction. We feel like, Your Hon- or, that jurisdiction was not established because'there was testimony of actual or of any kind' — of coui’se, it would be up to the trier of fact. I heard what you said about penetration, but we feel like the testimony was also that that also occurred after they were on 71 highway. We feel like the trier of fact would be left to speculate that that happened in the Fort Smith District of Sebastian County. So, we would move to dismiss the charge of rape for that reason.
Finally, on the aggravated-robbery charge, Sylvester made the following motion for directed verdict:
Defense Attorney: Your Honor, we - would move for a directed verdict of acquittal, ... on the aggravated robbery charge. Your Honor, the issue is jurisdiction. We feel like there was positive evidence that there was no jurisdiction in this case. Your Honor, we feel like that it was said that it was sometime after they got on Highway 71, the events as far as taking the money or things like that, that the aggravated robbery would have occurred and we feel like the trier of fact would be left to just guess that it happened in the Fort Smith District of Sebastian County, Arkansas. So, we would ask for a directed verdict on the aggravated robbery charge.
Here, the record demonstrates that Sylvester made directed verdict motions on all three charged offenses at trial. However, those motions were made based exclusively on jurisdiction. On appeal, Sylvester has changed those grounds and argues that the kidnapping, rape, and aggravated robbery convictions are all based on insufficient evidence and asserts that the State failed to prove certain elements. Specifically, he argues that the elements of kidnapping were not met because the State did not show that Opitz was restrained nor did Sylvester substantially interfere with her liberty. Next, Sylvester argues that the rape was not sufficiently proven because the State did not prove that the acts committed constitute deviant sexual activity. Finally, he argues that the aggravated robbery was not sufficiently proven by the State because the State did not prove theft; rather, the testimony was that Opitz made an unso licited offer of her purse and its contents, and the State did not prove that Sylvester threatened Opitz to satisfy the elements of theft occurred. Sylvester also asserts that the State failed to prove that a theft occurred as a result of a threat. However, because Sylvester has changed his arguments on appeal and did not present these arguments to the circuit court, they are not preserved for our review. Consequently, we do not reach Sylvester’s arguments ^regarding the sufficiency of the evidence and affirm the circuit court on this first point.
B. Mistrial
For his second point on' appeal, Sylvester asserts that the circuit court erred when it denied Sylvester’s motion for mistrial. Our standard of review for the appeal of an order denying a mistrial is whether the circuit court abused its discretion. In determining whether or not a circuit court abused its discretion in refusing to declare a mistrial, this court will consider whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. King v. State, 361 Ark. 402, 405, 206 S.W.3d 883, 885 (2005) (citations omitted). 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. Zachary v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). See also Burks v. State, 2009 Ark. 598, at 7, 359 S.W.3d 402, 407; Tarkington v. State, 313 Ark. 399, 402, 855 S.W.2d 306, 308 (1993).
Sylvester asserts that a statement made by Arkansas State Police Special Investigator Hayes McWhirter during his testimony constituted an improper comment on Sylvester’s silence and amounted to Doyle violations, which requires our reversal. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Sylvester also asserts- that a curative instruction would not have remedied the prejudice he suffered and urges us to reverse the circuit court. In Doyle, the United States Supreme Court held that'the Due Process Clause bars the-use for impeachment purposes of a . defendant’s post-arrest silence. See also Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987).
At issue is the following'colloquy that occurred during Investigator McWhirter’s 13testimony regarding Sylvester’s arrest and post-arrest interview:-
PROSECUTOR: What happened in the interview?
McWhiRter: In the interview at first he asked me what he might be charged with. I told him probably kidnapping, maybe some sexual charges. He made the statement that he couldn’t do anything sexual -because he was driving. Then, I asked him, Tell me about Fort Smith. -And he said he went up to a car -and‘pushed a woman ' over and made her get in the passenger’s seat where he could' drive. I asked him if he had a gun and he stated that he did.
Prosecutor: Did that conclude the interview?
McWhirter: Then he asked for a lawyer.
Defense AttoRney: Your Honor, could we approach?
The CouRt: Sure.
(Conference at the bench).
Prosecutor: I told him- not to say that, but I am not going any.further into . that. - . .
Defense Attorney: Your Honor, at this time the Defendant would move for a mistrial based , upon the last comment, was-a violation of the Defendant’s Mi- • randa rights based upon the decision of Doyle versus Ohio, Your Honor. The State is not allowed to in any shape or form bring up the fact that he asked for a lawyer. We feel like this is an extremely prejudicial comment and we move for a mistrial.
The CouRt: I am going to deny it for the time being, but during the lunch break, I want to look through that. I will let you know.
Defense AttoRney: Yes, sir.
^j^End of bench conference).
Later in the trial, the circuit court revisited the issue and again denied Sylvester’s motion:
The CouRt: All right. Well, here was the exact question that was asked, Question by [the Prosecutor], Did that conclude the interview? Answer: “then he asked for a lawyer.”
So the answer or the response by the officer or the State Trooper was not responsive to the question that was asked. Also, I think it was or is this case is not similar to Doyle and there are several cases. ■ Two of the most recent ones, one is Stevenson v. State at 213 ARK 100, and the other is Holden v. State, that is an ‘86 case, it is 290 Ark. 458 [721 S.W.2d 614 (1986) ]. In both of those cases the State told the jury in opening statements that the Defendant had invoked the right to counsel. Then, the Arkansas Supreme Court said, [t]he issue in Doyle was whether a State Prosecutor may seek to impeach a Defendant’s exculpatory story told for the first time in the trial by cross examining the Defendant about his failure to have told the story after receiving his Miranda warnings. In Holden the specific legal argument on appeal is that it was a comment on the Defendant’s right to remain silent, which can be prejudicial error. This Court stated that the legal issue to us is whether this was a comment on the right of the Defendant to remain silent or whether it was a prejudicial comment requiring a mistrial. We concluded that the case was not exactly the same as in Doyle. There was no direct reference by the State to the Defendant’s silence or emphasis that the Defendant refused to make a statement. It was not cross examination emphasizing the Holden silence to the jury and unlike the situation in Doyle, in the Stephenson case was not cross examined regarding the assertion of the right to remain silent and there was no attempt to impeach Stephenson’s account at the trial with the assertion of his Miranda rights.
So, your motion will be denied. They do make reference in some of the cases about a curative instruction. If you want me to say something to the jury to disregard the fact that a trooper said he asked for a lawyer ... ?
Defense AttoRney: We appreciate the Court offering to, but, Your Honor, we would not ask for a curative instruction .... We feel like it could never be cured by a limiting instruction .... So, Your Honor, we will not ask for a limiting instruction.
Here, we agree with the circuit court that there was not a comment or question by the prosecutor regarding Sylvester’s post-arrest silence. Instead, the witness’s comment that Sylvester “asked for a lawyer” was not responsive to the question asked and did not directly refer to Sylvester’s post-arrest silence. Additionally, the prosecutor did not comment on Sylvester’s post-arrest silence in his argument to the jury. When a comment on a defendant’s post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996); Davis v. State, 345 Ark. 161, 176, 44 S.W.3d 726, 735 (2001). Therefore, the statement did not amount to a Doyle violation. Greer, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618. Further, Sylvester refused a curative instruction to the jury. When the possible prejudice could have been cured by an admonition to the jury, this court has found no abuse of discretion when defense counsel 'has refused the circuit court’s offer of such a curative instruction. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Accordingly, we do not find error and affirm the circuit court.
Affirmed. | [
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KENNETH S. HIXSON, Judge
11 Appellant Heather Weisker, as the administrator of her deceased father’s estate, appeals the dismissal of her negligence and wrongful-death action against appellee Harvest Management Sub LLC (hereinafter referred to as “Harvest” or its residential facility “Apple Blossom”) in the Circuit Court of Benton County, Arkansas. At the close of appellant’s case in chief, the trial court granted the appellee’s motion for directed verdict. A final order of dismissal followed. Appellant contends that the trial court’s grant of the motion for | ^directed verdict was in error and warrants reversal. We disagree and affirm.
The standard of review on appeal from the grant of a motion for directed verdict is well settled. 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. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d-835 (2001). 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; see also Buckalew v. Arvest Trust Co., 2013 Ark. App. 28, 425 S.W.3d 819.
What is important here, though, is determining whether a duty was owed by this appellee to the decedent. The question of whether such a duty is owed is one of law, not fact, and never one for the jury. Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Id. The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109. In order to prove negligence, there must be a failure to exercise proper' care in the performance of a legal duty that- the defendant | Howed to the plaintiff 'under the circumstances surrounding them. Marlar, supra. ' Experts cannot create a duty of care that the law does not otherwise recognize. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493; Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 205 S.W.3d 741 (2005). A company’s practice or policies do not translate into a duty at law. Kroger Co. v. Smith, 93 Ark. App. 270, 218 S.W.3d 359 (2005). Questions of law are reviewed de novo, on appeal. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004).
The salient facts brought out at trial and material to the trial court’s ruling are as follows. On November 10, 2010. appellant’s father. Edward Randolph, entered into a “Residency and Service Agreement” with a retirement community called Apple Blossom in Rogers. Arkansas, operated by appellee Harvest. In that agreement, which was six pages long. Randolph contracted for a month-to-month apartment rental of Unit 110. Monthly rent included payment of utilities, as well as certain “board, activities, and services as described” in the contract. The contract specified that Apple Blossom would provide three meals, per day in the community dining room, and it would provide weekly housekeeping, consisting of light cleaning of the Unit, changing of -the bed linens, and laundering of the linens and towels. This cleaning service did not include cleaning that would require moving the personal property of the resident. Nor did the cleaning service include laundering of the resident’s personal clothing; - community laundry equipment was -available for residents to use. The contract specified that Apple' Blossom would provide a variety of additional services that would include social events, exercise classes, community activities, and scheduled-transportation. Apple Blossom reserved the right to enter each Unit for purposes of cleaning, maintenance and: repairs, • enforcement of the terms of the contract, and response Uto emergencies. Each Unit had in it a pull cord for summoning emergency assistance at any time.
Important to this case, the Residency and Service Agreement provided in paragraph ten as follows:
A. Your Capacity for Apartment Liv- , ing. The Community [Apple Blossom] supports your right to live in the housing of your choice. You should be aware, however, that the Community, its managers, and staff, are not licensed providers of any health care or personal care services. The Community is not authorized to provide, nor does it provide, any health care or personal care services. If you need health care or personal care services, you have the right to secure such services from an outside provider. Any outside providers of health care or personal care services must comply with all of the Community’s rules, policies and guidelines' (as they may be amended)....
B. Release from Responsibility for Your Care. It is your responsibility to provide for your health and personal care needs while living at the Community. You hereby agree to indemnify, hold -harmless and release the Community, Harvest Facility Holdings LP, its subsidiaries and affiliates, and its directors, agents and employees, from any liability, cost, or responsibility for injury and damage, including attorneys’ fees, arising from your failure to obtain (or the failure of others to furnish) appropriate health or personal care services, and from all injury and damage which could have been avoided or reduced if such services had been obtained or furnished.
Randolph entered into a separate addendum to the Residency and Service Agreement to permit him to have his dog in his Unit. The addendum noted that Randolph would be responsible for his pet’s personal needs such as exercise, feeding, and collection/disposal of any pet waste in and about the Unit and on the community property. The addendum further recited that if Randolph became unable to care for his pet’s personal needs, then he would be required to find alternative housing and accommodations for his dog.
| ^Randolph was a long-time smoker and an Army veteran who served in the Vietnam War. Randolph was routinely treated at the VA in Fayetteville, and he retained his own truck to drive himself to and from doctor appointments. He was diagnosed with post-traumatic-stress disorder, depression, and chronic pain due to traumatic injuries to his feet. Randolph was overweight, and he used a cane when he walked. His medical records indicated that he was urged by his doctor to quit smoking although Randolph was not ready to quit, and the doctor tried to control his high blood pressure with oral medications. He was also prescribed antidepressant and high-cholesterol medication.
Randolph requested the nurse of his primary care physician, Dr. Marian L. Rhame, to fill out a form stating a reason why he needed help with meal preparation at his new apartment. Dr. Rhame filled out the form, indicating that Randolph needed a cane to walk; that he could feed himself, bathe himself, and tend to his own other hygiene needs; that he was not bedridden; that he was able to sit up; that he was not blind; that he was able to travel and leave home without assistance, including driving up to sixty miles to see his doctor; but that he required assisted living care in preparing meals because he was unable to stand to cook.' The final question on the form asked, “In your opinion, are there other pertinent facts which would show [Randolph’s] need for aid and attendance of another person, e.g., inability to protect oneself from the hazards of environment, properly dress oneself (buttons, zippers, socks), poor balance, memory loss, confusion, psychiatric impairment, atrophy, contractor, prosthesis, etc.?” In response, Dr. Rhame wrote that Randolph had chronic bilateral foot pain that limited his ability to ambulate and stand for any length of time, such as for preparing meals.
1 ^Randolph moved into Unit 110 on or about December 6, 2010. Randolph was characterized by one of Apple Blossom’s employees as seeming depressed and lonely, although Randolph occasionally walked his dog and joined other people to smoke. Randolph was seen coming and going from Apple Blossom in his truck. As a sixty-two-year-old man, Randolph was much younger than most of the other residents at Apple Blossom, who were typically over the age of eighty.
On December 26, 2010, Randolph was found dead, seated in a chair, in his apartment. Randolph was found by a manager of Apple Blossom, who was attempting to discover the source of an unpleasant odor emanating from the apartment. The last time Randolph had been seen by any staff of Apple Blossom was on the evening of December 24 when a housekeeper came by Randolph’s apartment. The housekeeper said that she did not observe anything to lead her to believe that Randolph could not live independently; if she had, she would have reported it to management. Medical professionals estimated that Randolph had been dead for about forty-eight hours when he was found. Randolph’s dog, also in the apartment, was still alive. The probable cause of Randolph’s death was determined to be a cardiovascular accident — a stroke. There were clear indicators that Randolph was noncompliant in taking his oral blood-pressure medications.
At trial, there were competing medical opinions as to whether Randolph was an appropriate candidate for independent living at Apple Blossom. There was no opinion offered, however, that Randolph lacked capacity to make his own decisions or to enter into any contract. An Apple Blossom representative testified that there was no formal assessment of prospective residents other than observation at the time of sign-in and informal ^observation of the residents as they were seen living in the retirement community. However, there was evidence that Apple Blossom representatives did ask questions regarding the appellant’s medical condition and required services.
Appellant’s attorney asserted that Apple Blossom owed a duty to its residents of exercising reasonable care in determining whether residents were appropriate candidates to live there independently. Appellant argued that absent an actual evaluation by Apple Blossom of each person’s ability to live independently without risk of injury to him or herself, this constituted negligence. At the close of the plaintiffs case in chief, Apple Blossom’s attorney moved for a directed verdict on the basis that there was no duty owed by Apple Blossom to Randolph other than that owed by a landlord to its tenant or created in the residency agreement. Apple Blossom contended that with no duty to conduct a “fitness” evaluation, there could be no breach and no negligence. Viewing the evidence in the light most favorable to appellant, the trial court granted the defense’s motion, finding that there was no legal duty to evaluate, assess, and/or monitor Randolph. This appeal resulted.
Appellant argues on appeal that Apple Blossom owed a duty to Randolph to perform an evaluation to determine Randolph’s capacity to live safely in his apartment at Apple Blossom, and if he were not deemed able, to have him execute waivers of liability. Appellant points to no statuto ry or regulatory law that imposes on a retirement community such as Apple Blossom a duty to screen or monitor potential residents for the ability to live | ^independently. In fact, appellant asserts in her appellate brief that Arkansas’ landlord-tenant statutes are not applicable. There is no such statutory duty imposed by our legislature in this circumstance and our supreme court declined our invitation for certification; therefore, we will not judicially impose such a duty here. See Young, swpra. The contract between Randolph and Apple Blossom explicitly provides that Apple Blossom is not a medical provider, it is not qualified as such, and it does not provide for medical assistance. There is simply no contractual undertaking of a duty to prescreen residential applicants to determine suitability to live independently or a duty to monitor those residents after they have moved onto the property. As prudent as such a screening process might be, there is no such duty as a matter of law in these circumstances. See Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Emerson v. Adult Cmty. Total Servs., Inc., 842 F.Supp. 152 (E.D.Pa.1994). The trial court did not err in granting a directed verdict and dismissing appellant’s cause of action against Apple Blossom because there was no duty at law owed by Apple Blossom to Mr. Randolph. See Mans v. Peoples Bank of Imboden, 340 Ark. 518, 10 S.W.3d 885 (2000); Kroger Co., supra.
Affirmed.
Virden and Brown, JJ., agree.
. Appellant named several defendants and several causes of action in the original complaint, including violation of the Arkansas Deceptive Trade Practices Act, negligence, wrongful death, fraud and deceit, and civil conspiracy. Additional parties and causes of action were dismissed prior to trial. In appellant’s notice of appeal, appellant recites that she abandons all pending but unresolved claims in accordance with Ark. R.App. P. — ■ Civ. 3(e)(vi). This renders the order on appeal final for purposes of appellate jurisdiction.
. We attempted to certify this appeal to our supreme court on the bases that this appeal presented an issue of first impression, an issue of substantial public interest, and a significant issue needing clarification or development of the law. Ark. Sup. Ct. R. 1 — 2(b)(1), (4), and (5). The Arkansas Supreme Court declined to accept certification.
. While the record indicates that Apple Blossom may have voluntarily assumed a duty by its conduct, appellant did not raise this issue before the trial court or the appellate court; therefore, we decline to address it. | [
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PER CURIAM
1 ¶ Appellant, Duane Jefferson Gonder, was charged with capital murder, aggravated assault, aggravated residential burglary, kidnapping, and furnishing prohibited articles. Pursuant to a plea agreement, the capital-murder charge was reduced to first-degree murder, the kidnapping and burglary charges were dropped, and Gon-der pleaded guilty to one count of first-degree murder, one count of aggravated assault, and one count of attempting to furnish a prohibited article. Gonder was sentenced to an aggregate term of 552 months’ imprisonment, which was the sentence agreed upon in the plea agreement. Gonder filed a petition for postconviction relief, which was denied by the trial court, and we dismissed the appeal because the allegations contained in the postconviction petition were such that it was conclusive on its face that no relief was warranted. Gonder v. State, 2011 Ark. 248, 382 S.W.3d 674 (per curiam).
|gNow before this court is Gonder’s appeal from the denial of a civil complaint and an amended civil complaint filed against the Drew County deputy prosecutor, Franklin Spain, alleging that .Spain had misstated facts during Gonder’s plea hearing and withheld victim-impact statements. In the original complaint, Gonder asked for compensatory and punitive damages. Spain filed a motion to dismiss asserting that the complaint is barred by prosecutorial immunity, sovereign immunity, and the statute of limitations. Gonder then filed an amended complaint requesting injunctive relief rather than monetary damages. A motion to dismiss the amended complaint was filed on the basis that the amended complaint constituted an untimely petition for postconviction relief. The trial court granted the motions and dismissed both pleadings, finding that the complaint was barred by absolute prosecu-torial immunity, sovereign immunity, and the statute of limitations, and further concluded that the action was governed by Rule 37.1 of the Arkansas Rules of Criminal Procedure. Gonder did not incorporate the original complaint into the amended complaint by reference; therefore, the original complaint is superseded, and we are limited in our analysis to the amended complaint. James v. Williams, 372 Ark. 82, 87, 270 S.W.3d 855, 860 (2008).
The amended complaint sought injunctive relief in the form of modifying or setting aside Gonder’s sentence. Even though Gonder’s amended complaint sought injunctive relief, it represented a collateral attack on the judgment of conviction, and such actions are ^governed solely by Rule 37.1 of the Arkansas Rules of Criminal Procedure. Rule 37.1 states in pertinent part that “a petitioner who is in custody under sentence of a circuit court claiming a right ... to have his sentence modified” or claims that his sentence is otherwise subject to “collateral attack” may file a Rule 37.1 petition “praying that the sentence be vacated or modified.” Ark. R.Crim. P. 37.1(a)®, (iv) (2011). Thus, Rule 37.1 encompasses and therefore governs an action that collaterally attacks a sentence. Moreover, Rule 37.2 mandates that “all grounds for postconviction relief from a sentence imposed by a circuit court must be raised in a petition under this rule.” Ark. R.Crim. P. 37.2(b) (2011). Likewise, this court has made clear that regardless of its label, a pleading that mounts a collateral attack on a judgment is governed by the provisions of our postconviction rule. See Bailey v. State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993) (per curiam) (motion for declaratory relief constituted a collateral attack on a judgment and sentence and was therefore governed by Rule 37); see also Holliday v. State, 2013 Ark. 47, at 2, 2013 WL 485726 (per curiam) (collecting cases).
Here, Gonder’s original Rule 37.1 petition was denied with prejudice by the trial court and dismissed by this court on appeal. Gonder, 2011 Ark. 248, 382 S.W.3d 674. In this instance, Gonder again collaterally attacks his sentence as his request for injunctive relief seeks to modify or set it aside. Thus, regardless of its label, this complaint was also a postconviction petition. Postconviction pleadings that raise grounds for relief cognizable under Rule 37.1 are considered petitions to proceed under Rule 37.1 and are subject to its procedural requirements. Walker v. State, 283 Ark. 339, 340, 676 S.W.2d 460, 461 (1984) (per curiam). Gonder’s civil complaint for injunctive relief .is, therefore, subject to the | ¿timeliness requirements for filing requests for postconviction relief. See Ark. R.Crim. P. 37.2(c) (if a conviction is obtained by a guilty plea, a petition claiming relief under this Rule must be filed 90 days of the date of entry of the judgment). Given that Gorider’s amended complaint raises grounds cognizable under Rule 37.1 and is subject to its procedural requirements, it is untimely as it was filed well beyond the 90-day time limit prescribed by Rule 37.2(c).
Additionally, this court has consistently upheld the rule that a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition. Kemp v. State, 2009 Ark. 631, at 4, 2009 WL 4876473 (citing McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997)); see also Ark. R.Crim. P. 37.2(b) (stating in pertinent part that all grounds for relief must be raised in the original petition, unless the petition was denied without prejudice). Furthermore, Gohder’s allegations that ■ the prosecutor misstated the facts surrounding his plea and conviction for attempt to furnish a prohibited article is an issue that could have been raised at the time of the plea, and is, therefore, not a claim that may be raised for the first time in a Rule 37 petition. See Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 33 (2006) (rejecting a postconviction allegation that the prosecutor had knowingly introduced false testimony during the trial, because the petitioner could have raised the issue at trial or on direct appeal and was precluded from raising the issue for the first time in a Rule 37.1 petition).
For the reasons set forth above, the circuit court correctly dismissed Gonder’s amended complaint because it was governed by the requirements of Rule 37, and as such | ^represented an untimely, successive petition for postconviction relief that raised claims that are procedurally barred.
Affirmed.
, Gonder's complaint and amended complaint named the defendants as "Franklin Spain, et. al.” However, the body of. the complaint and amended complaint do not identify any additional parties to the action. | [
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DAVID M. GLOVER, Judge
hThe Craighead County Circuit Court convicted appellant Kerry Wilson of aggravated residential burglary in a bench trial; also, the circuit court revoked her suspended sentences for two counts of forgery. She was sentenced to a total of five years’ incarceration, with an additional five-year suspended imposition of sentence. On appeal, Wilson argues the State presented insufficient evidence to support the conviction and the revocation of her suspended sentences. We affirm.
• | ¾Aggravated-Residential- ■ Burglary Conviction
At trial, the evidence revealed that on October 11, 2013, Nathaniel Kent awoke to find a man, later identified as Bryan Redden, inside his home. Redden unplugged Kent’s television, picked it up, and ran out the front door. Kent testified he grabbed Redden; Redden dropped the television on the porch; the two of them continued to struggle with each other all the way to the driveway; Kent yelled to his girlfriend, who was holding their son; and he then saw a girl, later identified as Wilson, coming out of a ditch approximately one hundred meters from the house holding a knife and running toward him. Kent stated that when Wilson saw his son was crying, she began to apologize, said they had the wrong house, and asked to hold Kent’s son, which Kent’s girlfriend did not allow. Kent testified that although he did not sustain any injuries from the knife Wilson was holding, he feared for his - life when he saw her with the knife. He added that both Wilson and Redden appeared incoherent, and Redden smelled of alcohol.
Jonesboro police officer Josh Landreth that testified he located the suspects; Redden talked to him more than Wilson did; Wilson was very intoxicated, had difficulty walking, and- lay down on the ground and cried; he found a pocket knife in Wilson’s pocket; and he found several other pocket knives, three Arkansas IDs that did not belong to Wilson, and two watches in her purse. Officer Landreth stated Wilson was unable to describe the contents of her purse but said she found the IDs at a carwash.
Jonesboro -police officer Brandon King testified that on October 14, 2013, he conducted a taped interview with Wilson about the incident; he did not recall Wilson being | sunder the influence of drugs or alcohol at the time of her interview; and he read Wilson • her rights, which she waived. In the interview, Wilson stated she and Redden were walking after leaving Plato’s Closet on Stadium Drive in Jones-boro; they were drunk and she had been “eating pills” and was not thinking straight; she heard someone screaming for help; when she came across the ditch, she sáw a woman holding a toddler, and there was a television on the 'ground; she was concerned because the baby was crying; and she hugged the woman. and talked to her. Wilson admitted she was holding a cell phone and a knife when she approached the woman, but she denied she would ever use a knife to harm anyone. Wilson also denied she and Redden has been looking for a house to break into or to stab someone. Wilson stated she knew Redden had entered a house, dragged a television outside, and ended up fighting with the man who lived there;, she said she knew witnesses believed they heard Redden scream to “stab him,” but she denied she would ever hurt anyone. Wilson stated that although she had earlier said she had a knife in her hand, she would never charge at anyone with a knife in her hand because she was not a violent person. Wilson asserted the witnesses knew that she was no threat, and that she stood there and apologized and talked to the woman and tried to calm her child. Wilson stated Redden told everyone she was not involved.
Bryan Redden testified on Wilson’s behalf. At the time of Wilson’s trial, he had already pleaded guilty in this incident. Redden stated that at no time had he asked Wilson to commit residential burglary; she was not with him when he entered the home; he did not ask her to stab anyone; she was not close to the home when the incident occurred; and she had no idea that he was going to steal that television. On cross-examination, Redden admitted he and 14Wilson were both drunk and high on the night in question, he had been taking methamphetamine that night as well, and it was possible he did not know what happened that night.
Wilson testified in her own defense. She admitted she and Redden were “messed up” on pills; she was under the influence; she had knives in her purse that she had stolen from a friend two days earlier, but the knives were for drug use only, not to hurt anyone; she did not know what Redden was doing because she was on the phone with her sister trying to get her sister to come pick her up; she heard the “scariest, most violent” screams; she ran to the victims and tried to calm them down; she did not have a knife on her at that time (she claimed the knife the police found was the one in her purse); she turned around and saw the flat-screen TV and Redden looking at it; and she asked him what he had done. Wilson admitted she told the police that they were looking for “Julio’s,” Redden’s boss’s house, bér cause Redden told her Julio owed him $5,000; however, she also admitted she knew Julio lived in Brookland, not Jones-boro.
At the close of all the evidence, Wilson moved for dismissal, arguing she was nowhere near the incident when it occurred; the testimony was conflicting as to what she did after Redden had committed residential burglary; and she only had a knife because she needed protection in that neighborhood. The State pointed out that Kent testified he saw Wilson come toward him with a knife after Redden had entered the house and attempted to take the television.- The trial court found that Wilson and Redden acted in concert to take the property from someone named Julio, mistook Kent’s home for Julio’s, and Wilson was armed |fiwith a knife during the incident.
When a defendant challenges the sufficiency of the evidence to sustain a conviction, the evidence is - viewed in the light most favorable to the-State, and only evidence supporting the verdict is considered. Porter v. State, 2010 Ark. App. 657, 379 S.W.3d 528. The test for- determining the sufficiency of'the evidence is whether the verdict is supported by ' substantial evidence, direct or circumstantial; it must be of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. It is the responsibility of the trier, of fact to make credibility determinations based on the evidence. Id.
A person commits aggravated residential burglary if he or she commits residential burglary as defined in Arkansas Code Annotated Section 5-39-201 (Repl. 2013) of a residential occupiable structure occupied by any person, and he or she is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon. Ark.Code Ann. § 5-39-204(a)(1) (Repl: 2013). A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a)(l).
Wilson argues she cannot be- found guilty of aggravated residential burglary because there was no testimony that she entered the residence or remained in the residence, which negates one of the elements necessary for residential burglary. She is incorrect.
[¡¡The circuit court found that Wilson and Redden acted in concert to carry out the aggravated residential burglary. , When two or more persons assist one another, in the commission of a crime, each is an accomplice and criminally liable for the conduct of both; Arkansas law makes no distinction between the criminal liability of a principal and an accomplice. Starling v. State, 2015 Ark. App. 429, 468 S.W.3d 294. One can be an accomplice if he solicits, advises, encourages, or coerces the other person to commit the offense; or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Id. See Ark.Code Ann. § 5-2-403 (Repl. 2013). Factors relevant to determining whether a person is an accomplice include the presence of the accused near the crime, the accused’s opportunity to commit the crime, and association with a person involved in the crime in a manner suggestive of joint participation. Cosey v. State, 2014 Ark. App. 441, 439 S.W.3d 731.
Viewing the evidence in the light most favorable to the State, we hold that there is sufficient evidence to support Wilson’s conviction. The trial court found Wilson to be Redden’s accomplice in the aggravated residential burglary; therefore, it is irrelevant whether Wilson entered the house or not because Redden clearly entered the house, and accomplices are criminally liable for each other’s conduct. Even though Wilson never entered Kent’s house, she was in the vicinity of the crime, she was holding a knife and, according to Kent’s testimony, she ran toward Kent with the knife after Kent chased Redden out of his house. Wilson points to Redden’s testimony that he never asked her to assist with the crime and her testimony that she would never use a knife in a violent manner as evidence of her innocence; however, the trial court is not required to believe the defendant’s version of events. Porter, \ qsupra. Wilson’s conviction for aggravated residential burglary is affirmed.
Revocation of Suspended Sentences
In August 2007, Wilson pleaded guilty to two counts of forgery. She was sentenced to thirty months’ imprisonment, with imposition of an additional ninety-month suspended sentence for the first count, and she was given a 120-month suspended sentence for the second count of forgery. One of the conditions of Wilson’s suspended sentence included not committing a criminal offense punishable by imprisonment.
In May 2014, the State filed a petition to revoke Wilson’s suspended sentences, alleging, among other things, that Wilson had failed to live a law-abiding life. After the bench trial, at which the circuit court found Wilson guilty of aggravated residential burglary, the trial court revoked Wilson’s suspended sentences and sentenced Wilson to sixty months’ incarceration, to be followed by a sixty-month suspended sentence, to be served concurrently with her sentence for aggravated residential burglary. Wilson argues on appeal that the trial court erred by not dismissing the revocation petition because the State failed to present sufficient evidence to support the revocation of her suspended sentences.
In order to revoke a suspension or probation, the circuit court must find by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of that suspension or probation. Ferguson v. State, 2016 Ark. App. 4, 479 S.W.3d 588. The State bears the burden of proving that the defendant violated the terms of her suspension or probation. Id. Only one violation need be shown to justify revocation. Id. On appellate review, the circuit court’s decision is not reversed unless it is clearly against the ^preponderance of the evidence. Valencia v. State, 2016 Ark. App. 176, 2016 WL 1039595.
As discussed above, there is sufficient evidence to support Wilson’s eonvic tion for aggravated residential burglary, which violated the condition of Wilson’s suspended sentences to not commit a criminal offense punishable by imprisonment. For this reason, there is sufficient evidence, by a preponderance of the evidence, to support the revocation of Wilson’s suspended sentences.
Affirmed.
Gruber and Brown, JJ,, agree.
. Wilson was charged with aggravated residential burglary and aggravated assault; the trial court dismissed the aggravated-assault charge at the close of all the evidence.
. This is the second time this case has been before this court. In Wilson v. State, 2015 Ark. App. 686, 2015 WL 7769232, we remanded to settle and supplement the record and ordered rebriefing. The deficiencies have been corrected, and this case is now properly before us.
. The State also alleged as a basis for revocation that Wilson had failed to pay her previously court-ordered fines and costs from four circuit court cases — CR03-647, CR99-494, CR00-15, and CR07-66. Where the alleged violation is a failure to make court-ordered - payments, it is the State’s burden, by a preponderance of the evidence, to prove that the failure to pay was inexcusable, Phillips v. State, 101 Ark. App. 190, 272 S.W.3d 123 (2008). Once the State introduces evidence of nonpayment, a defendant then bears the burden of going forward with some reasonable excuse for his failure to pay. Id, Here, the State presented proof that Wilson had a fine and costs balance of $8,330.21. Although Wilson alleged that she believed that she did not have to pay the fines and fees, she also stated that it was “too hard” to make any more payments, even though she testified that she had a job. Although the State need only show one basis for revocation, this too is a sufficient basis on which to affirm the revocation of Wilson’s suspended sentences. | [
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PAUL E. DANIELSON, Associate Justice
| Appellant Travis Trammell filed this interlocutory appeal challenging the order of the Benton County Circuit Court denying his motion for summary judgment on the basis of immunity. This court assumed jurisdiction of this case from the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 1 — 2(b)(6) as it involves a statutory-interpretation issue. On appeal, Officer Trammell asserts that undisputed proof demonstrates no intent to commit the tort of false arrest or false imprisonment, and, to the extent that the proof demonstrates negligence, Officer Trammell is immune from suit pursuant to Arkansas Code Annotated section 21-9-301 (Supp. 2015). He also argues that section 21-9-301 grants immunity against all tort claims, including intentional torts, and asks that we overrule all prior case law to the contrary. We reverse and remand for the entry of an order consistent with this opinion.
laOfficer Trammell is a police officer with the Bella Vista Police Department. The record reflects that on May 14, 2012, Officer Trammell received a report that shots had been fired in the area known as the “Grosvenor Gravel Pits.” an area that is off-limits for shooting. While investigating the area, Officer Trammell approached Appellee Linda Wright, her co-worker, her daughter, and her daughter’s friend. Officer Trammell spoke to Wright and asked for her driver’s license, which she gave him. Upon running Wright’s identification, the Arkansas Crime Information Center (“ACIC”) showed that Wright had an outstanding warrant for her arrest for failing to appear in Elkins District Court in Washington County. ACIC indicated the same name, date of birth, driver’s license number and picture belonging to Wright.
Wright denied being the subject of the warrant. Officer Trammell then returned to his car and called Washington County dispatch on the radio and asked dispatch to confirm the warrant. Dispatch confirmed that the warrant was valid. Officer Trammell arrested Wright and transported her to the Benton County Sheriffs Office, which held her until Washington County Sheriffs Office could pick her up. After arriving at the Washington County Sheriffs Office. Wright bonded out of jail.
Wright was ultimately cleared of wrongdoing. The warrant had been issued against “Linda M. Wright,” a person having a different home address, date of birth, and driver’s license number than Wright. Officer Trammell testified in his deposition that he never saw the warrant at the scene of the arrest. It was not the police department’s practice for an officer to call the agency to have someone look at the warrant and read the identifying | conformation. The individual who entered the warrant into the ACIC system assigned it to Wright’s name, driver’s license number, date of birth, and photo.
On May 10, 2013, Wright filed a complaint against Officer Trammell in his personal capacity, alleging that he committed the state-law torts of false arrest and false imprisonment. Officer Trammell filed his first motion for summary judgment, which was denied by the circuit court because the court found that a material fact existed as to whether Officer Trammell exercised due diligence in arresting Wright and taking her into custody. Officer Trammell appealed the circuit court’s denial to the Arkansas Court of Appeals. The court of appeals found that it was uncertain that the circuit court ruled on the immunity issue and dismissed the appeal without prejudice for lack of a final, appealable order. See Trammell v. Wright, 2014 Ark. App. 439, 439 S.W.3d 718. On remand, Officer Trammell moved for summary judgment a second time, exclusively on the issue of immunity, which the circuit court denied.
As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. See City of Fayetteville V. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008); Ark. River Educ. Servs. v. Modacure, 371 Ark. 466, 267 S.W.3d 595 (2007). However, that general rule does not apply where the refusal to grant a summary-judgment' motion has the effect of determining that the appellant is not entitled to immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to trial. See Romine, 373 Ark. 318, 284 S.W.3d 10; Modacure, 371 Ark. 466, 267 S.W.3d 595. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. See Romine, 373 Ark. 318, 284 S.W.3d 10 (citing Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005)).
|4On appeal, Officer Trammell argues that he did not commit the torts of false arrest or false imprisonment and that if the proof does demonstrate negligence, he is entitled’ to immunity pursuant to section 21-9-301. Wright asserts that the circuit court was correct in denying immunity because Officer Trammell’s acts were not negligent, but intentional, and officials are not immune from intentional acts. Specifically, she argues that Officer Tram-mell committed the torts of false arrest and false imprisonment by intentionally refusing to verify the identifying information on the warrant. She contends that if Officer Trammell had asked someone to look at the face of the warrant, he would have known that she was not the subject of the warrant and she would not have been arrested.
“False arrest” is' a name sometimes given to the tort more generally known as “false imprisonment.” Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 435, 738 S.W.2d 418, 420 (1987) (citing W. Prosser & W. Keeton, The Law of Torts 47 (5th ed. 1984)). False imprisohment is the unlawful violation of the personal liberty of an-bther consisting of detention without sufficient legal authority. See Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994); Headrick, 293 Ark. 433, 738 S.W.2d 418; Moon v. Sperry & Hutchinson Co., 250 Ark. 453, 465 S.W.2d 330 (1971).
The facts are undisputed. The actual warrant was not for Wright, but for a different person with the same name. Officer Trammell was not in possession of the actual warrant at the time of the arrest, but followed the police department’s practice and relied on the information provided by ACIC. When Wright stated that she was not the subject of the warrant, Officer Trammell sought verification of that information from dispatch in Washington County. All -• of the information that Officer Trammell had in-his possession, | [jWhich was verified by dispatch, indicated that Wright was the subject of the warrant; Wright has provided no facts to .support her argument that Officer Tram-mell committed the intentional torts of false arrest or false imprisonment. Therefore we hold as a matter of law that Officer Trammell did not commit the intentional torts of 'false arrest or false imprisonment.
Officer Trammell asserts that, to the extent the proof demonstrates negligence on his.behalf, he is immune from suit pursuant to section 21-9-301. He further argues that section 21-9-301 grants immunity against all tort claims, including intentional torts. This court has consistently held that section 21-9-301 provides city employees with immunity from civil liability for negligent acts, but not for intentional acts. See Romine, 373 Ark. 318, 284 S.W.3d 10; But, 363 Ark. 126, 211 S.W.3d 485; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Wright has not alleged any acts of negligence against Officer Trammell, only intentional torts. Because we hold that Officer Trammell has not committed any intentional torts, we will not address his last point on appeal that section 21-9-301 grants immunity against all tort claims, including intentional torts. We find that the circuit court erred by denying summary judgment based on immunity.
| fiWe reverse the order of the circuit court and remand for the entry of an order consistent with this opinion.
Special Justice D. Chris Gardner concurs.
Baker and Hart, JJ.; dissent.
Wood, J., not participating.
. The dissent alleges that the majority has "erroneously conducted its own trial on the pleadings” in finding that Officer Trammell did not commit the intentional torts of false arrest and false imprisonment. On the com trary, the majority has plainly stated that Officer Trammell did not commit the intentional torts of false arrest or false imprisonment as a matter of law. After wrongfully accusing the majority of making improper findings of fact, the dissent proceeds to make very specific findings -of fact. For example, the dissent makes the findings that “there is no way in which Trammell could have 'reasonably be lieved’ that Wright was the person to be arrested”; that Trammell “had no authority to make an arrest”; that "[t]he false imprisonment alleged here was not the result of errors by court personnel”; and that “the fault lay with the law enforcement officer.” | [
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Tom Glaze, Justice.
The State has petitioned for review of a court of appeals’ opinion reversing the trial court’s order granting the State’s petition for forfeiture, which was entered against appellant Nancy Stuart on June 23, 2004.
On September 4, 2003, Officer Allen Marx of the Sebastian County Sheriffs Department observed a man and a woman enter the Economy Feed Store and purchase a one-gallon container of iodine. Marx followed the couple’s truck down the highway, and shortly thereafter, he initiated a traffic stop for a broken windshield and made contact with the driver, Nancy Stuart. After questioning Stuart about where she had come from, Marx asked her for permission to search her vehicle; Stuart granted permission. As Marx approached the truck, Stuart told him that there was some iodine in the truck. During Marx’s search of the vehicle, one of the truck’s passengers dropped what Marx believed to be a marijuana cigarette. In addition to the iodine, Marx recovered an open bottle of whiskey, three cases of beer, and $735 in cash. Subsequent to the search, Stuart admitted that she had intended to use the iodine for cooking methamphetamine. Stuart also explained that the cash came from “some type of retirement” or a “pension plan, or something of that nature.” The State filed an in rem complaint for forfeiture of the $735 on September 8, 2003, alleging that the money had been seized from Stuart following her arrest on the charges of possession of drug paraphernalia with intent to manufacture, possession of marijuana, and possession of drug paraphernalia. At trial, on June 16, 2004, Marx testified about the events surrounding the traffic stop and seizure of the iodine. At the conclusion of Marx’s testimony, Stuart moved for a directed verdict, arguing that there was no proof that the $735 was connected to any drugs that were in the vehicle. Stuart argued that, although Marx testified that he had seen a marijuana cigarette, there was no testimony that the cigarette had been tested to prove that it was marijuana or that there had been a usable amount of marijuana. In addition, Stuart argued that the iodine was not a drug. The State responded that the money had been found in close proximity to forfeitable paraphernalia. The trial court denied Stuart’s motion for directed verdict and granted the State’s petition for forfeiture.
On appeal to the court of appeals, Stuart argued that the trial court erred when it determined that the money was subject to forfeiture. In addressing Stuart’s argument regarding the sufficiency of the evidence, the State asserted that Stuart had failed to present an adequate record for review, as the record did not include the “entire evidence” presented in the case. The court of appeals rejected the State’s argument regarding the state of the record, and reversed the trial court’s order. $735 in U.S. Currency v. State, 90 Ark. App. 358, 205 S.W.3d 816 (2005). The State petitioned for review from that opinion, and continues its argument that Stuart failed to present an adequate record for appellate review.
Specifically, the State contends that the court of appeals erred by concluding that the “entire evidence” was before it for its review when the record did not contain the cross-examination of Officer Marx and the entire testimony of both Stuarts. When Stuart designated the record for appeal in her notice of appeal, she designated “a partial record of the proceedings held on June 16, 2004, as the record on appeal, including, without being limited to, all pleadings, orders, exhibits, stipulations, and testimony in [this] action.” Although the circuit court’s docket sheet reflects that Allen Marx, Nancy Stuart, and Larry Stuart (Stuart’s husband) testified at the trial, the record on appeal includes only the direct testimony of Marx. At the conclusion of Marx’s testimony, Stuart moved for directed verdict. After the court denied the motion, the transcript reflects the following: “(Cross examination conducted by Mr. Blatt at this time.)” However, there is no transcript of that cross-examination, nor does the record contain the Stuarts’ testimony.
Despite Stuart’s submission of an abbreviated record, the court of appeals determined that, because Stuart “only challenged] the trial court’s finding that the State presented sufficient evidence to defeat her motion for directed verdict, . . . she . . . presented the ‘entire evidence’ with respect to that issue and . . . the abbreviated record is sufficient for our understanding of the issues on appeal.” $735 in U.S. Currency, 90 Ark. App. at 365.
The standard of review in forfeiture cases is whether the trial court’s decision was clearly erroneous. See In Re: One 1994 Chevrolet Camaro, 343 Ark. 751, 37 S.W.3d 613 (2001). This court has held that a decision is clearly erroneous “when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed.” State v. 26 Gaming Machines, 356 Ark. 47, 51, 145 S.W.3d 368, 371 (2004) (emphasis added). The clearly erroneous standard of review “expressly contemplate^] a review of the entire record.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984). We agree with the State’s argument that, without the “entire evidence” before the court, there is an insufficient record on which the court can determine whether the trial court’s decision was clearly erroneous. In short, Stuart’s actions in designating and submitting only a partial record preclude this court from being able to review the “entire record” in order to determine whether the trial court erred.
In addition, by offering only a truncated record, Stuart has failed to satisfy her burden of presenting a record sufficient to demonstrate error. See Dodge v. Lee, 352 Ark. 235, 100 S.W.3d 707 (2003) (the burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error, and where the appellant fails to meet this burden, we have no choice but to affirm the trial court); Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000); S.D. Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). Here, although Stuart moved for a directed verdict after part of the State’s case, Stuart’s record does not indicate whether she renewed her motion at the close of all the evidence. In both civil and criminal cases, a defendant must move for a directed verdict at the close of all the evidence. Rule 50 of the Arkansas Rules of Civil Procedure provides that, in a nonjury case, “a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief. The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.” Ark. R. Civ. P. 50(a) (emphasis added). The Reporter’s Notes to Rule 50(a) explain further that “the motion should be made by the defendant at the close of the plaintiffs evidence in a bench trial in circuit court.” See Additions to Reporter’s Notes, 1984 Amendments. Likewise, Ark. R. Crim. P. 33.1(b) provides that, in a nonjury trial, if a motion for dismissal is to be made, “it shall be made at the close of all of the evidence. ... If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.” (Emphasis added.)
In Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990), this court explained that a motion for a directed verdict at the close of the plaintiffs case “has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law.” Eschenbrenner, 302 Ark. at 231. The court continued as follows:
In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion, [ ] See Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963).
At the conclusion of all of the evidence, a party then has an opportunity again to test the sufficiency of all of the evidence for submission to the factfinder. This is accomplished, once again, by a proper motion for a directed verdict addressed to the court, thus affording the trial court an opportunity to rule prior to the submission of the case to the jury....
We believe that the intent of the rule is to require a party testing the sufficiency of the evidence first to submit the question to the trial court, thereby permitting the court to make a ruling at the conclusion of all the evidence but prior to verdict, thus preserving the specific question for appeal.
Id. at 231-32. The court continued by noting that it has “long held that an issue, to be considered on appeal, must be properly preserved at trial.” Id. at 232 (citing Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989)). Further, the court held that a motion for directed verdict “must be made or renewed at the conclusion of all of the evidence. Otherwise, questions of sufficiency of the evidence are waived.” Id. (emphasis added).
In the instant case, Stuart’s argument on appeal is that the trial court erred in ruling that the $735 was subject to forfeiture, because the evidence was insufficient to prove that the money seized from her vehicle was found in close proximity to any illegal drugs during the search of the truck. This is clearly a challenge to the sufficiency of the evidence. However, given the incomplete state of the transcript in the instant case, this court simply cannot know whether or not Stuart renewed her motion for directed verdict at the close of all the evidence. Because the record is insufficient for the court to make this determination, we must hold that she did not preserve her argument for appeal. Accordingly, the circuit court is affirmed, and the court of appeals is reversed.
On this issue, the State also points out that it is well settled that a party who presents evidence after moving for a directed verdict waives any error in the trial court’s failure to direct a verdict at the close of the opponent’s case. See Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986) (by going forward with proof after the motion for directed verdict is denied, the defendant waives any error in the trial court’s failure to direct a verdict at the close of the plaintiff s case). Here, according to the trial court’s docket entries, Stuart and her husband testified after Stuart moved for directed verdict. Thus, Stuart waived any error in the trial court’s failure to direct a verdict at the conclusion of Officer Marx’s testimony. | [
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Betty C. Dickey, Justice.
Appellant Deborah Thomas challenges the dismissal of her claims against appellees Dale and Conny Olson for breach of contract, deceit, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act. Ms. Thomas contends that the circuit court erred in (1) denying her motions for a directed verdict and judgment notwithstanding the verdict (JNOV) because there was no substantial evidence to show that the Olsons fully disclosed defects of their home due to movement of its foundation; (2) denying her motion for a new trial because the jury verdict was clearly against the preponderance of the evidence or was contrary to law; and (3) fading to give a proffered jury instruction for attorney’s fees. We find no error and affirm.
The Olsons initially contracted to sell their Fort Smith home to the Norburys for $145,000, in September of 2000, and they provided owner financing to the Norburys. Shortly after moving in to the home, the Norburys noticed cracks in various places in the walls and floors as a result of movement in the home’s foundation. They obtained two estimates for repairing the foundation, $31,000 from PowerLift, and $17,500 from Foundation Specialties for a partial fix. Instead of paying to repair the foundation, the Norburys decided to terminate the real estate contract by moving out of the home, sometime in February of 2002.
About a month later, the Olsons relisted their home with a real estate agent, Karen Samuelson. Betty Hogue, a neighbor of the Olsons and a coworker of appellant, informed Ms. Thomas of the listing. Agent Samuelson showed the home to Ms. Thomas, who expressed interest in purchasing the home. Samuelson also gave Ms. Thomas a property disclosure on which the Olsons had checked “Yes” to questions that indicated their home had experienced settling problems, causing defects in the structure. In addition, the Olsons stated in the disclosure that there “[h]ave been some cracks in interior and exterior walls-due to foundation movement.” Ms. Thomas was not informed about the previous estimates for repairing the home’s foundation. Nevertheless, she was informed through her appraiser that the house was valued at $145,000. Ultimately, Ms. Thomas offered $105,000 for the home, which the Olsons accepted.
Several months after Ms. Thomas moved into the home, she noticed a large exterior crack around the fireplace. Concerned that the fireplace would soon become detached from the home, she called PowerLift for an estimate to repair the crack and learned that PowerLift had given the Olsons an estimate several months earlier. Additionally, she called Foundation Specialties, who informed her that it had also prepared an estimate for the Olsons. Ms. Thomas asked the Olsons to rescind the contract, but they refused. She eventually paid Foundation Specialties $15,360 to partially fix the foundation. Ms. Thomas subsequently sued the Olsons for breach of contract, deceit, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act.
At trial, the Olsons presented evidence that Ms. Thomas had waived her rights to any claims arising out of the real estate contract. The real estate contract contained an “as is” clause, which specifically stated that the buyer would hold the seller harmless for any structural defects discovered after closing. Agent Samuelson testified that she had gone over the entire contract with Ms. Thomas, explaining her right to have the home inspected and advising her to do so, and telling her that if she failed to inspect the home, she would waive all rights to any future repairs of the home. Despite this advice, Ms. Thomas declined to have the home inspected.
Ms. Hogue testified that she informed Ms. Thomas that the home was being sold at a reduced price because it had foundation problems. When she learned that Ms. Thomas planned to sue the Olsons over foundation problems, Ms. Hogue said that she was surprised and asked, “Debbie, why do you think you got the house for what you paid for it?” Mr. Olson testified that the main reason for the reduced price was the foundation problem. Tim Bailey, a neighbor of the Olsons, testified that, when he challenged Mr. Olson because he thought that the $100,000 price range was “way too low,” Mr. Olson said that he was reducing the price due to foundation problems.
Ms. Thomas testified that, because of her work, she only viewed the property in the evening when it was dark. She stated that she observed cracks in the exterior of the home but that it was very hard to see them because there was no light and they were located behind bushes. She admitted that she was aware that one of the reasons for the reduced price was due to settlement problems. At the close of the trial, Ms. Thomas moved for a directed verdict, which was denied. The jury returned a verdict in favor of the Olsons on all claims. Ms. Thomas then filed a motion for a new trial or for JNOV, which was also denied. Ms. Thomas now appeals the circuit court’s denial of these motions.
Ms. Thomas relies on both the real estate contract and owner property disclosure to support her five theories of liability against the Olsons. Paragraph 16(C) of the real estate contract states that the “[s]eller will provide to Buyer a written Disclosure about the condition of the property which will contain information that is true and correct to the best of the Seller’s knowledge.” According to Ms. Thomas, the Olsons failed to disclose or fully disclose, to the best of their knowledge, known defects of the home as a result of movement in the foundation. Specifically, she maintains that had the Olsons disclosed the severity of the foundation problems, by divulging the previous estimates for repairing the foundation in the property disclosure, she would not have purchased the home.
I. Motions for Directed Verdict and JNOV
Ms. Thomas first argues that the circuit court erred in denying her motions for directed verdict and JNOV. She contends that there was no substantial evidence to support the jury’s verdict because the Olsons failed to inform her about the estimates to repair the foundation of the home, which they were contractually required to do. We decline to address the merits of the denial of both motions because the motion for a directed verdict was not supported by any specific grounds. Rule 50(a) of the Arkansas Rules of Civil Procedure requires that a party moving for a directed verdict state specific grounds in order to bring the issue to the trial court’s attention. See Ark. R. Civ. Proc. 50(a) (Repl. 2005); Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003); Yam’s Inc. v. Moore, 319 Ark. 111, 890 S.W.2d 246 (1994); Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993).
Counsel for Ms. Thomas requested a directed verdict on two occasions. First, after defense counsel’s final witness had been excused, plaintiffs counsel said, “I would move for directed verdict at this time” to which the trial judge responded, “[w]e will take that up in just a second. I’m going to send the jury out.” Second, after excusing the jury, the following colloquy took place between the court and plaintiffs counsel:
The Court: Mr. Taylor, do you have a motion?
Mr. Taylor: Yes, your Honor, on behalf of the plaintiff we move for directed verdict at this time.
The Court: The Court is going to deny the motion of Plaintiff for directed verdict. The Court believes this is a fact question for the jury on all counts that are raised, and for the same reasons that the Court denied the motion for directed verdict filed by the defense.
Unquestionably, neither of these requests for a directed verdict on Ms. Thomas’ behalf were supported by specific grounds.
In her brief, Ms. Thomas cites to the record and states that “she made specific arguments as to the sufficiency of the proof that was made on her behalf.” However, such arguments were made in response to defense counsel’s request for a directed verdict on the contract claim. Again, Rule 50(a) requires the party moving for a directed verdict to state specific grounds for the motion. Therefore, a response to an opposing party’s motion for a directed verdict is insufficient for purposes of satisfying Rule 50(a). Failure to comply with the requirements enumerated in Rule 50(a) is a sufficient basis for denial of a motion for directed verdict and for affirmance on appeal. See Friddle, 315 Ark. 178, 866 S.W.2d 375; Svestka v. First Nat’l Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980). Requiring specific grounds in a motion for directed verdict is especially necessary when a case involves multiple issues, as does the instant case. Id. For these reasons, we conclude that this issue was not preserved for our review.
Similarly, we decline to address the merits of the denial of Ms. Thomas’ motion for JNOV. We have observed that a motion for a directed verdict is a condition precedent to moving for JNOV. Friddle, 315 Ark. 178, 866 S.W.2d 375; Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Willson Safety Prod. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d (1990). And, because a motion for JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence, it cannot assert a ground not included in the motion for a directed verdict. Friddle, 315 Ark. 178, 866 S.W.2d 375. We have already concluded that Ms. Thomas’ motion for a directed verdict was not supported by specific grounds, and, thus, the merits of the denial were not preserved for our review. It follows that Ms. Thomas’ motion forJNOV, which is essentially a renewal of the motion for a directed verdict, was also not preserved for our review.
II. Motion for New Trial
Ms. Thomas next asserts that the circuit court erred in denying her motion for a new trial. The standard of review for the denial of a motion for new trial is whether the verdict was supported by substantial evidence. Tucker, 353 Ark. 730, 120 S.W.3d 61; Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” SEECO, Inc. v. Hales, 341 Ark. 673, 684, 22 S.W.3d 157, 164 (2000); Esry v. Carden, 328 Ark. 153, 155, 942 S.W.2d 846, 847 (1997). Additionally, in determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party receiving the judgment. Tucker, 353 Ark. 730, 120 S.W.3d 61; D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999).
This court has acknowledged that generally, a defense verdict will always be supported by substantial evidence, because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002); Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998); Morton v. American Med. Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985). In situations where the verdict is against the party who has the burden of proof and that party appeals the denial of a motion for a new trial, a literal application of the substantial evidence test would be untenable, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). Thus, it makes little sense for an appellant to insist that a reversal is required because the defendant’s proof failed to meet the substantial evidence test. Id. In short, the plaintiff has failed to convince the jury, as fact-finder, of an essential element of proof. Weber, 302 Ark. 175, 787 S.W.2d 690; Schaeffer, 286 Ark. 113, 689 S.W.2d 537.
In the instant case, there is substantial evidence to support the jury’s verdict. The jury could have believed that by disclosing that the home had experienced foundation problems that caused defects, the Olsons were not liable under any of the five claims against them. Furthermore, regardless of whether the jury believed that the Olsons disclosed, or fully disclosed, all that was required of them on the owner’s property disclosure, the jury could have found that Ms. Thomas waived her rights under the terms of the real estate contract by purchasing the property “as is” and by failing to inspect. Even excluding the contract and owner’s property disclosure, the jury could have found that Ms. Thomas had independent knowledge of the foundation problems. For example, she paid $105,000 for a home that appraised for $145,000, and she testified that she was aware that the reduced price was based in part on the foundation problems. Thomas simply failed to convince the jury that the Olsons were liable under any of the five theories alleged. In short, the jury was presented with five theories of liability, however, the jury determined that Ms. Thomas failed to meet her burden of proof on any of them. Thus, the jury’s verdict was supported by substantial evidence, and the circuit court did not err in denying Ms. Thomas’ motion for a new trial.
III. Jury Instructions
Finally, Ms. Thomas asserts that because attorney’s fees are an element to her damages under the Arkansas Deceptive Trade Practices Act, the circuit court erred in failing to provide a proffered jury instruction for attorney’s fees. She asserted claims of liability under Ark. Code Ann. sections 4-88-107 and 4-88-108 of the Arkansas Deceptive Trade Practices Act. Section 4 — 88—113(f) of the Act provides that “[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appro priate, and reasonable attorney’s fees.” Ark. Code Ann. § 4-88-113(f) (Repl. 2005). She avers that attorney’s fees are an element of compensable damages under section 4 — 88—113(f) even in the absence of recovery of actual damages. To support this notion, she turns to the language of the statute and contends that “[t]hat is why the legislature placed the words ‘if appropriate,’ following ‘actual damages.’ ”
A trial court’s refusal to give a proffered jury instruction will not be reversed absent an abuse of discretion. FMC Corp., Inv. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005). In addition, when we are asked to examine statutory language, as in the present case, we have noted that we will give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. Furthermore, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Burnette v. State, 354 Ark. 584, 127 S.W.3d 479 (2003).
As previously indicated, Ark. Code Ann. section 4-88-113(f) provides that “[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate, and reasonable attorney’s fees.” (Emphasis added.) The plain reading of the statute requires that an award for actual damages or attorney’s fees is predicated on prevailing on the claim or claims asserted. The jury rejected Ms. Thomas’ claims pursuant to Ark. Code Ann, sections 4-88-107 and 4-88-108, thereby denying her recovery of actual damages or attorney’s fees. Consequently, because Ms. Thomas did not prove actual damages or injury, it is not necessary for us to consider whether attorney’s fees are a part of an element of damages under .Ark. Code Ann. section 4-88-113(f). We conclude that the circuit court did not abuse its discretion for failing to give the proffered jury instruction for attorney’s fees.
Affirmed. | [
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Jim Gunter, Justice.
Appellant, Department of Human Services (DHS), appeals the order of the Van Burén County Circuit Court, reversing a finding of the agency’s administrative law judge (ALJ), who ruled that appellees, Ben and Sharon Bixler, were neglectful by fading to protect their chddren. The circuit court’s decision was .affirmed by the Arkansas Court of Appeals in Arkansas Dep’t of Human Servs. v. Bixler, 91 Ark. App. 277, 210 S.W.3d 135 (2005). This appeal is before us on petition for review pursuant to Ark. Sup. Ct. R. 2-4. We affirm the findings of the ALJ, and we reverse the circuit court.
On October 16, 2002, the Division of Children and Family Services at DHS received a phone call to the child-abuse hotline alleging suspected child maltreatment. The allegation was that Ben and Sharon Bixler allowed their children, a fourteen-year-old male, a twelve-year-old female, an eleven-year-old female, and a ten-year-old female, to stay overnight with their step-grandfather, Roger Bonds, a known sexual offender. Roger was married to Ben’s mother, Juanita, who died on April 29, 2002, from a heart attack, but the children continued to visit Roger after Juanita’s death.
DHS immediately began an investigation. On October 16, 2002, Carla Hayes, a DHS family-service worker, conducted an interview of the three female children at their school in the presence of Curtis Turner, the school superintendent. When Ms. Hayes introduced herself as a DHS worker, S.B., the twelve-year-old child, said, “Everything’s okay at home, there’s nothing wrong,” before Ms. Hayes asked a question. S.B. stated that the children spent a lot of time with Roger. S.B. said that Roger paid her $3.00 to feed the chickens, and the children helped their grandfather gather wood. S.B. said that her grandfather never made her feel uncomfortable. She further stated that she had spent the night at her grandfather’s house once since her grandmother died. Throughout the interview, however, S.B. was “visibly-shaking and upset” and would not make eye contact with Ms. Hayes.
R.B., the eleven-year-old child, stated that the children would spend the night with their grandfather on Friday or Saturday night and then would go to church with Roger on Sunday. According to Ms. Hayes’s report, R.B. said that two children, usually R.B. and her younger sister, would spend the night with Roger because “it gets on his nerves with the noise from four children.” She added that Roger never made them feel uncomfortable. According to R.B., they ate candy and ice cream and listened to music. R.B. said that her sister, S.B., did not like staying at Roger’s house since her grandmother’s death.
The ten-year-old child, R.B., told Ms. Hayes that Roger did not make the children feel uncomfortable. They played games and watched TV. R.B. said that her sister, S.B., does not like going to her grandfather’s house because S.B. misses her grandmother. R.B. stated that her sister, S.B., has never “said anything bad” about Roger.
That evening, Ms. Hayes interviewed the Bixlers and their son, D.B., who has mental retardation. Ms. Hayes conducted a one-on-one interview with D.B., who said that, when he and his sisters spend the night with Roger, he picks up wood and helps with the chickens. D.B. said that he has fun at Roger’s house, and they would eat ice cream together.
In Ms. Hayes’s interview with Ben and Sharon Bixler, Ben stated that he and Sharon have emphasized to the girls that they should tell someone if anyone inappropriately touches them. According to Sharon, the children spent the night with Roger in pairs. The Bixlers knew about Roger’s past when he married Ben’s mother. Sharon said they knew of Roger’s history, and they have seen his “court papers.” Ben said that he was aware of one allegation of sexual molestation. When he spoke with Ms. Hayes, Ben agreed to prevent the children from spending the night with Roger. Ben said that his word was his bond, and he would mail the worker a notarized letter, stating the children would no longer be allowed to be alone with Roger. Sharon told Ms. Hayes that she believed her sister made the report because the Bixlers stopped attending church.
On November 15, 2002, Ms. Hayes interviewed Roger by telephone. Her report indicates that there are two true reports of sexual abuse, and the victims’ names are listed. In the interview, Roger stated that he was convicted of sexual abuse and was sentenced to four years in prison. He said there were no court orders forbidding him to be around children, and he conveyed that he was released from prison in 1994 before the law for the registration of sexual offenders went into effect in 1995. Roger said that he loved the children, but he “can’t afford to take the chance.” According to Ms. Hayes’s testimony at the agency’s hearing, Roger’s prior conviction involved the sexual abuse of his niece.
Based upon Ms. Hayes’s investigation, a finding of failure to protect was entered against the Bixlers. In a letter dated November 15, 2002, the Bixlers were notified that their names had been placed on the Child Maltreatment Central Registry operated by DHS. Ms. Hayes also made a report to the prosecuting attorney. On January 27, 2003, Ms. Hayes filed an administrative-hearing statement, concluding that the evidence supported the allegation of child maltreatment, and Sharon and Ben Bixler were named as the offenders for failure to protect their children. On June 20, 2003, the Bixlers filed a motion to remove their names from the Child Maltreatment Central Registry, challenging the laws and procedures by which DHS administers the Child Maltreatment Registry. On August 4, 2003, DHS responded to the Bixlers’ motion.
An administrative hearing on the matter was held on September 18, 2003, with Toni White Bogan presiding as the ALJ. During the hearing, Ms. Hayes testified that the Bixlers stated that “[t]hey did not want to interfere with the grieving process [after Juanita’s death], and they felt it was alright for the kids to continue seeing Mr. Bonds and spending the night.” Ben Bixler testified that the Bixler residence is approximately five-hundred feet from Roger’s house with a field between the two houses. He testified that the children were extremely close to their grandmother, and because of the close proximity of their houses, the children saw their grandmother and Roger on a daily basis before her death. Ben further stated that he never saw any behavior that indicated that Roger was a danger to the children, nor was Roger inappropriate toward the children. According to Ben, Roger was like a grandfather to them. Ben stated that he never had any reason to distrust Roger. Ben added that S.B., the oldest girl, took his mother’s death the hardest. The other two girls, R.B. and R.B., went to Roger’s house together.
Sharon Bixler testified that she saw Roger on a continuous basis during the seven years that he was married to Ben’s mother. She had heard “rumors from people about his past. . . [as] a sexual offender.” However, Sharon further testified that she was never alarmed, and that Roger always acted appropriately around the children. She said the children spent the night at his house two or three times per month since their grandmother passed away. Sharon said that she taught her children about what to do in the event that anyone should treat them inappropriately, and she never would have allowed them to go to Roger’s house if she thought he was a danger to them.
On December 2, 2003, the ALJ entered an order, finding that DHS met its burden of proof against the Bixlers by a preponderance of the evidence. The ALJ ruled that there was sufficient evidence that the Bixlers knew or should have known that their children’s step-grandfather was a convicted sexual offender, and that after the death of the children’s grandmother, the Bixlers had a duty to inquire about the “rumors” of his prior offense. The ALJ further ruled that the Bixlers should have assured that their children were not left alone in Roger’s presence, particularly overnight. The ALJ ruled that the Bixlers’ actions constituted a violation of Ark. Code Ann. § 12-12-503(12)(G) because the Bixlers allowed their children to be left alone overnight in the home of a convicted sexual offender.
The Bixlers sought a judicial review of the administrative adjudication pursuant to Ark. Code Ann. § 25-15-212 (Repl. 2002). On June 2, 2004, the Van Burén Circuit Court entered a letter order, reversing the decision of the ALJ, and finding that the ALJ’s ruling was not supported by substantial evidence. The circuit court further ruled that the Bixlers’ names should be removed from the Child Maltreatment Central Registry. An order to that effect was entered on June 17, 2004. DHS timely filed its notice of appeal.
The court of appeals affirmed the circuit court’s decision, holding that there was no substantial evidence to support the ALJ’s finding that the Bixler children were placed in danger on these facts. Bixler, 91 Ark. App. 277, 210 S.W.3d 135 (2005). DHS filed a petition for review, which we granted on September 15, 2005. Upon a petition for review, we consider a case as though it had been originally filed in this court. Rodriguez v. Arkansas Dep’t of Human Servs., 360 Ark. 180, 200 S.W.3d 431 (2004).
Review of administrative agency decisions, by both the circuit court and appellate courts, is limited in scope. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Id. Thus, the review by appellate courts is directed not to the decision of the circuit court, but rather to the decision of the administrative agency. Id. The circuit court or appellate court may reverse the agency decision if it concludes:
(h) [T]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h).
Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. Arkansas Prof'l Bail Bondsman v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). The challenging party has the burden of proving an absence of substantial evidence and must demonstrate that the proof before the administrative agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the evidence would have supported a contrary finding, but rather whether it supports the finding that was made. Id. Because administrative agencies are better equipped than courts, by specialization, experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies, the court may not substitute its judgment and discretion for that of the administrative agency. Thompson, supra. It is also the prerogative of the agency to believe or disbelieve the testimony of any witness and to decide what weight to give the evidence. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). With this standard of review in mind, we turn to the present case.
For its sole point on appeal, DHS argues that the ALJ’s decision should be affirmed because there is substantial evidence to support the ALJ’s finding. Specifically, DHS likens the situation to a tort action. DHS contends that the Bixlers breached their duty to protect their children from danger, and the potential for harm to the children was foreseeable.
In response, the Bixlers argue that the ALJ did not base her decision on Ark. Code Ann. § 12-12-503(12)(G). Specifically, they contend that the statute requires that they “put the child in danger,” and they maintain that there was no evidence in the record that they put their children in danger. The Bixlers also assert that the record does not contain any evidence or information describing the nature and circumstances of Roger’s conviction.
Arkansas Code Annotated § 12-12-503(6) defines child maltreatment as “abuse, sexual abuse, neglect, sexual exploitation, or abandonment.” Id. Under Ark. Code Ann. § 12-12-512(a) (Supp. 2003), DHS shall determine whether allegations of child maltreatment are supported by a preponderance of the evidence. “Neglect” is defined in Ark. Code Ann. § 12-12-503(12)(G), which provides:
(12) “Neglect” means those acts or omissions of a parent, guardian, custodian, foster parent, or any person who is entrusted with the juvenile’s care by a parent, custodian, guardian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the juvenile’s welfare, but excluding the spouse of a minor and the parents of the married minor, which constitute:
* * x
(G) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances that put the juvenile in danger[.]
Id.
With these statutes in mind, we turn to the present case. Our review is limited to the ALJ’s findings, which provide:
In this case, sufficient evidence indicates that the Petitioners knew or should have known that their children’s step-grandfather, Roger Bonds, was a convicted sexual offender. ThisALJ agrees that after the death of the children’s grandmother, the Petitioners had a duty to inquire about the “rumors” they had heard concerning Mr. Bonds’ conviction. This ALJ recognizes that the Petitioners believed that they had sufficiently “watched” Mr. Bonds over a seven (7)-year period. However, after the death of the children’s grandmother, the circumstances in the Bonds’ home changed and there was only one adult in the home: “a convicted sexual offender.” At the very least, the Petitioners should have asked about the circumstances surrounding Mr. Bonds’ conviction; and, they should have assured that their children were not left alone in Mr. Bonds’ presence, especially overnight. Despite the ages of the Petitioners’ children, this ALJ finds that reasonable minds would find that it was not in the children’s best interests to remain overnight, without other adult supervision, in the home of a convicted sexual offender.
The Petitioners did not present any evidence that would lead this ALJ to find that the agency failed to meet its burden of proof in this matter. Therefore, I find that the agency met its burden of proof against the Petitioners; and, I find that the Petitioners’ actions in this matter constitute a violation of Ark. Code Ann. § 12-12-503(12)(G) because the Petitioners allowed their children to be left alone overnight in inappropriate circumstances; i.e., the home of a convicted sexual offender. The Petitioners’ names shall remain on the Arkansas Child Maltreatment Central Registry based on the October 16,2002, report.
We agree with the ALJ’s findings that, under Ark. Code Ann. § 12-12-503(12)(G), the Bixlers’ failure to appropriately supervise their children resulted in the children being left alone in inappropriate circumstances that put them in danger. See id. “Danger” is defined as “[p]eril; exposure to harm, loss, pain, or other negative result.” Black’s Law Dictionary 421 (8th ed. 2004). We construe the word danger to include potential and actual danger, particularly in the context of child-maltreatment cases. Here, the Bixlers’ allowing their children to stay overnight at the house of a known sex offender without another adult present constitutes a potential danger to their children. First, DHS produced reports of sexual abuse listing Roger as the offender. Roger’s first offense took place in 1987 in Pulaski County, while the other offense occurred in 1990 with his niece as the victim. Second, Roger admitted to Ms. Hayes that he served a sentence of four years for one criminal conviction. Third, both Ben and Sharon Bixler had knowledge of this prior conviction, admitting that they heard “rumors” of his history and prison sentence, but they never inquired about that conviction, despite seeing Roger’s “court papers.” Sharon admitted to Ms. Hayes that, if she had known that Roger’s victims were eleven- and twelve-year-old girls, she would have taken additional precautions. Fourth, and most importantly, Ms. Hayes’s report to the prosecuting attorney indicates that the anonymous caller said that S.B. “had a drastic change in her personality.” Ms. Hayes further noted S.B.’s demeanor during the interview in which S.B. was visibly shaken, upset, and would not make eye contact. At the beginning of the interview, S.B. stated, “Everything’s okay at home, there’s nothing wrong,” before Ms. Hayes asked a question. This evidence, which was presented by DHS, is substantial and supports the ALJ’s findings.
We have said that the credibility and the weight of the evidence is within the administrative agency’s discretion, and it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord that evidence. Teston v. Arkansas State Bd. of Chiropractic Examiners, 361 Ark. 300, 206 S.W.3d 796 (2005). We adhere to this principle oflaw, refusing to substitute our judgment and discretion for that of the administrative agency. Thompson, supra.
Further, DHS raises the legislative intent behind the Sex Offender Registration Act of 1997, which is codified at Ark. Code Ann. §§ 12-12-901 through 12-12-920 (Supp. 2003), to support its contention that Roger poses a danger to the Bixler children. Arkansas Code Annotated § 12-12-902 provides that “sex offenders pose a high risk of re-offending after release from custody . . . [.]” Ark. Code Ann. § 12-12-902. The clear intent of the legislature is “the government’s interest in public safety,” id., particularly the health and safety of the children of Arkansas.
For the foregoing reasons, as well as our standard of review, we hold that there was substantial evidence to support the ALJ’s ruling that, under Ark. Code Ann. § 12-12-503(12)(G), the Bixlers placed their children in danger by allowing them to spend overnight visits with their step-grandfather, Roger Bonds. Accordingly, we affirm the ALJ’s decision, and we reverse the circuit court’s order.
Hannah, J., dissents. | [
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Per Curiam.
On October 24, 2005, Roberto Daco Cabral filed a pro se petition for writ of mandamus in this court contending that the Honorable Tom Keith, Circuit Judge, had failed to act in a timely manner on his pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 filed in the Circuit Court of Benton County on April 7, 2003. On October 27, 2005, Judge Keith entered an order disposing of the Rule 37.1 petition.
As there was no response filed to the mandamus petition and no mention in the order of the thirty-month delay in ruling on the Rule 37.1 petition, it was not evident what circumstances caused the lengthy delay. Accordingly, we directed the respondent to file a response explaining the reasons for the delay. Cabral v. Keith, CR 05-1155 (Ark. Nov. 10, 2005) (per curiam). The response is now before us.
The respondent concedes that there was no good cause for the lengthy delay in the disposition of petitioner’s Rule 37.1 petition. Respondent explains that the delay resulted from faulty internal procedures for processing such petitions and assures this court that those internal procedures have been strengthened to avoid a recurrence of the problems that caused the delay.
As petitioner has acted on the Rule 37.1 petition and has taken steps to ensure a more expeditious resolution of such petitions, we declare the petition for writ of mandamus to be moot. As we have said before when there was an unwarranted delay in a court’s acting on a pleading, we urge all judicial districts to develop a system whereby judges are promptly made aware of filings in their courts. See McCoy v. Phillips, 357 Ark. 368, 166 S.W.3d 564 (2004) (per curiam). Those procedures should be monitored closely by the courts to prevent unnecessary delays that hamper the administration of justice.
Petition moot.
The response is labeled “supplemental response ,”but it is the sole response filed to the mandamus petition. | [
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Betty C. Dickey, Justice.
This appeal arises from an order of the Phillips County Circuit Court, denying a petition, filed by appellant, for a writ of mandamus, declaratory judgment, and negative injunctive relief. Maxine Ball challenged the eligibility of one candidate, Bobby Jones, running for a position on the Board of Directors for the Helena-West Helena School District. Ball now asserts that the circuit court erred by: (1) denying her request for disqualification; (2) finding lack of subject matter jurisdiction in the cause below, and making the determination of substantive issues after determining that subject matter jurisdiction was absent; (3) not entering a judgment of default against appellee Bobby Jones; (4) determining that appellee Jones was a qualified candidate; (5) arbitrarily setting the cause below for trial in St. Francis County and finding Ball’s attorney in contempt; and, (6) ordering a dismissal. Our jurisdiction over this election case is pursuant to Ark. Sup. Ct. R. l-2(a)(4). The appeal is moot and it is dismissed.
This is not the first time that a case involving appellant’s challenge regarding the eligibility of Bobby Jones as a candidate has come before this court. Jones v. Phillips County Election Commission, 358 Ark. 339, 190 S.W.3d 273 (2004). In Jones, this court reviewed a decision by the Phillips County Circuit Court regarding Maxine Ball’s challenge to Bobby Jones’ eligibility for a seat on the Helena-West Helena School Board in the September 16, 2003, election. This court did not reach the merits of the name-removal issue because the case on appeal was summarily affirmed and dismissed for Jones’ failure to comply with Ark. Sup. Ct. R. 4-2.
The following year the Helena-West Helena School Board election was scheduled for September 21, 2004. On September 13, 2004, eight days before the election was to be held, Ball filed a petition for a writ of mandamus/petition for declaratory judgment/petition for negative injunctive relief in Phillips County, asserting that Bobby Jones is a convicted felon and therefore an ineligible candidate under Ark. Code Ann. § 7-5-207(b) (Repl. 2000). Ball argued that, while Jones’ previous felony convictions were “expunged” and his record sealed by orders of the Phillips County Circuit Court, his civil rights could be restored through the expungement of a record but his political rights could not. Ball requested that an immediate hearing be held on the writ of mandamus within two to seven days. It should be noted that two of the eight days before the election fell on a weekend. Ball also filed a letter in the clerk’s office addressed to Judge Harvey Yates and Judge L.T. Simes, II, requesting that they both recuse. The letter also informed the court that a procedural and statutory mandate required the case to be heard on or before September 20, 2004, the day before the election.
Judge Simes did not recuse and on September 17, 2004, appellant filed a motion for reconsideration, a motion to disqualify, and a request for immediate hearing. Judge Simes’ calendar included: criminal plea and arraignment in St. Francis County on September 13, 2004; two civil hearings and motions on September 14, 2004, in Phillips County; and, a hearing on September 16, 2004. Judge Simes was out of town on other court business on Friday, September 17, 2004. Monday, September 20, 2004, there was a previously scheduled jury trial in St. Francis County that was expected to last at least three days. The case coordinator filed a letter on September 20, 2004, at 10:15 a.m., notifying counsel of the jury trial in session in St. Francis County, and the difficulty of scheduling a hearing. However, the case coordinator also notified counsel regardingjudge Simes’ intention to hold a hearing at 3:00 pm that afternoon in St. Francis County. Ball’s attorney verbally expressed to the case coordinator his opposition regarding the hearing being held outside Phillips County and his concern that he could not be prepared on such short notice. A formal letter from the court giving counsel notice of the hearing was filed at 11:20 a.m. on September 20, 2004.
At the hearing in St. Francis County, on September 20, 2004, counsel for Bobby Jones, and the counsel for Joanne Smith, Maxine Miller, and Joe Flowe, or his successor, and Linda White, were present, along with the county and probate clerk. However, Ball’s attorney did not attend the hearing, did not call the St. Francis County Circuit Clerk’s office, and did not give the court any explanation for his non-attendance. During the hearing, Jones asked that the court dismiss the recusal motion. There were no objections and the trial judge, saying that there was no basis to disqualify himself, granted Jones’ motion, and denied the motion for recusal. Jones also asked the court to dismiss the writ of mandamus petition, however the court considered the matter submitted for decision because there was not yet an explanation for the absence of Ball’s attorney. On November 5, 2004, Judge Simes filed the order dismissing appellant’s petition in its entirety.
Simply stated, Ball’s petition was untimely. The candidates’ names were certified on or before August 6, 2004. Ball offers no compelling reason for waiting thirty-eight days to file her petition for writ of mandamus and declaratory judgment to remove Jones’ name from the ballot. If Ball had filed her suit within this thirty-eight day period (or, including the eight days following the September 13, 2004, the forty-six day period), there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election. Ball was well acquainted with the special procedure required to challenge Jones’ alleged ineligibility due to his felony convictions, since she pursued such a suit against Jones in the 2003 school election. Ball’s inability to have Jones’ name removed from the ballot in the 2004 School District Election was due to her decision to wait until eight days before the election to file her petition; in addition, she was unsuccessful in obtaining an order preventing the Phillips County Election Commission from certifying the returns tallied in this race. In short, this election case is moot.
As a general rule, the appellate courts of this state will not review issues that are moot. Allison v. Lee County Election Commission et al., 359 Ark. 388, 198 S.W.3d 113 (2004). To do so would be to render advisory opinions, which we will not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. We have recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, but that evade review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
The issues raised by Ball are not considerations of substantial public interest which, if addressed, would prevent future litigation. See Allison, supra. While it is true that, in some election cases, we will consider the merits of an appeal after the election has been held, we usually do so when the public interest is involved. Appellant does not suggest that this case falls within that exception, and we are not persuaded that an exception should be made. Any review of this case would be untimely and constitute an advisory opinion. It is well established that this court will not render advisory opinions. Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001).
We are also aware of Ball’s additional allegations and argument that the trial judge should have disqualified because of serious conflicts of interest. This argument was not raised in Ball’s September 13, 2004, petition, although her counsel later raised the issue by a letter filed with the circuit court on Thursday, Septem ber 16, 2004 ■ — ■ only five days prior to the September 21, 2004 school election. The trial court did set a hearing for Monday, September 20, which complied with the seven-day deadline as required by Ark. R. Civ. P. 78(d).
As previously noted, all partiés had been notified of the September 20 hearing; however, Ball’s counsel was the only one not present. The trial court later learned that Ball’s attorney had ■filed a “letter motion” with the Phillips County Clerk’s Office on September 20, 2004, again asking the trial judge to disqualify and stating his objections to the court holding a hearing in St. Francis County. As to the venue issue, Ball relied on Ark. Code Ann. § 16-13-201 (b) (Supp. 2005), which in relevant part provides that “[n]o contested case may be tried outside of the county or venue of case, except for an agreement of the parties interested.” The trial judge’s position was (and is on appeal) that Ball should have appeared at the September 20 hearing in St. Francis county where the judge would have had the opportunity to review the statutory law on venue, so he could properly rule on whether Ball’s motions could be considered in St. Francis county or whether the law required the hearing to be removed to Phillips County.
Regardless of what the answer might be to this venue issue, it remains true, as considered and fully discussed above, that Ball failed to pursue her petition for mandamus and declaratory judgment expeditiously in order to obtain the remedy to remove Jones’ name from the ballot before the election or before the election results were certified. In other words, Ball’s lawsuit became moot due to her own failure to act timely in the special proceeding.
Irrespective of the court’s rulings on the disqualification and venue issues, those matters would not have been reasons to delay the trial judge’s consideration of Ball’s paramount quest for a writ of mandamus and declaratory judgment, had Ball filed her motion timely. However, she failed to do so. Ball could not parlay her two subsequent motions into a basis for showing that the trial court erred in delaying its decision on the ultimate issue of removing Jones’ name from the School District election ballot. The denial of neither Ball’s motions for the judge to disqualify, nor her motion challenging venue, were final judgments or orders that can be appealed at this state of the mandamus/declaratory-judgment proceeding, because Ark. R. App. P. - Civ. 2 does not authorize such an interlocutory appeal. See Manila School District No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). Ball’s suit effectively ended when her petition was filed untimely, which made this matter moot.
Appeal dismissed. | [
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Betty C. Dickey, Justice.
This appeal arises from an order of the Circuit Court of Hempstead County, quieting title to the lands in dispute to appellees and dismissing appellants’ claim for a prescriptive easement and for a permanent restraining order. Appellants now appeal the order, alleging that the trial court erred when it held that the lands in dispute should be titled in appellees, and that the appellants were not entitled to a prescriptive easement. We find no error and affirm.
On July 21, 2000, appellants filed a petition in Hempstead County to declare a prescriptive easement for a roadway that traversed the property of Clint and Dorothy Jones. The Joneses denied appellants’ claim and filed a counterclaim seeking to quiet title to certain lands, including that roadway. Appellants objected to venue, alleging that the disputed lands were actually located in Miller County. However, the matter was tried in Hempstead County, and all parties agreed to be bound by a decision of that court. The trial judge found that the real property in dispute is located in Hempstead County, quieted the real property in the Joneses, and dismissed the requests for a prescriptive easement and a permanent restraining order.
Appellants first assert that the disputed land should not have been quieted in appellees. More specifically, appellants argue the following: the testimony of Hall (appellant’s land surveyor) was admissible; the appellees failed to prove that the disputed lands were located in Hempstead County; and the appellants’ claims of adverse possession and laches should have been sustained. However, all three arguments fail for reasons discussed below. In a quiet-title action, the moving party’s burden is to establish the true ownership of the land in question. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000). Appellees properly established clear title to the land and title was correctly quieted in them.
Appellants argued that the Red River, located between Hempstead County and Miller County, had shifted, causing all of appellants’ land and the disputed lands to remain in Miller County. If the disputed lands proved to be in Miller County, appellants’ possession and ownership would likely be easier to prove. Hall, appellants’ expert witness, testified that the Red River experienced an avulsion, sometime around 1915. An “avulsion” occurs when a body of water suddenly shifts its course, as opposed to an “accretion,” where a body of water gradually changes its course. Riparian landowners are not affected by an avulsion and the boundaries of their land do not change; however, with an accretion, the boundaries of the riparian land owners change with the course of the stream. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945). According to Hall, there were accretions prior to the avulsion that expanded the Miller County side of the river and diminished the Hempstead County side, a disadvantage for the appellees and their predecessors. However, the trial court determined that Hall’s testimony was based upon mere speculation. In addition, the War Department Map that Hall used for a majority of his conclusions was determined to be hearsay. Evidentiary rulings are a matter of discretion. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). In addition, this court does not attempt to weigh evidence or assess the credibility of witnesses, as that responsibility lies with the trier of fact. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We have repeatedly held that the trial court is in the superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005). We find no abuse of discretion on the part of the trial court regarding Hall’s testimony.
Appellants incorrectly concluded that appellee failed to prove that the disputed lands were located in Hempstead County. The only way in which this issue is relevant to the quiet-title action is to ensure appellee had been paying real property taxes on the disputed lands to the correct county, and it is clear that the property is located in Hempstead County. First, several maps offered as exhibits show that the disputed land is east of the Red River, in Hempstead County. Second, appellees’ expert testified that the land is in Hempstead County. The trial court clearly found the appellees’ surveyor’s testimony more credible than Hall’s. Again, the trial court is in the best position to determine the credibility of witnesses. Id. Furthermore, appellees presented all of the deeds in the chain of title, which were recorded in Hempstead County, and which conveyed real property located in Hempstead County to appellees and their predecessors. Appellees proved true ownership of the land, and proved that it was located in Hempstead County. This court will affirm a trial court’s finding of fact unless the finding is clearly erroneous. Tyson Foods, Inc. v. ConAgra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002). In the instant case, we do not find the trial court to be clearly erroneous. Therefore, we affirm the trial court’s holding that the lands in dispute should be titled in appellees.
Finally, appellants argue that title should not have been quieted in appellees because their claims of adverse possession and laches should have been sustained. Adverse possession is a type of affirmative defense that must be specifically pled. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). After appellees filed a quiet-title action as a counterclaim, appellants never pled, nor specifically argued, adverse possession. Testimony given by Mr. Bobo on cross-examination further suggests that appellants were not arguing adverse possession, rather color of title. While some evidence and arguments offered by appellant could have been used to support an adverse possession argument, it is the conclusion of this court that the information was only introduced to support the appellants’ argument pertaining to a prescriptive easement. Turning now to appellants’ claim of laches, this court finds that the argument may not be reviewed in this appeal. The trial court’s final judgment and order made no reference to a reservation of the affirmative defense of laches. This court will not consider laches on appeal when the matter was not brought to the attention of the trial court for a ruling. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). The burden to obtain a ruling is with the movant, and issues left unresolved may not be relied upon on appeal as they are waived. Id.
We now turn to the second point on appeal: whether the trial court erred by holding that appellants were not entitled to a prescriptive easement in connection with the use of a road located on appellees’ property. This issue was traditionally equitable. Cases of equity are reviewed de novo, and an appellate court will not reverse factual findings by the trial court unless they are clearly erroneous. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Murphy v. City of West Memphis, 352 Ark. 315, 1001 S.W.3d 221 (2003). This court has established the burden one faces when asserting his right to land by prescriptive easement:
One asserting an easement by prescription must show by a preponderance of the evidence that one’s use has been adverse to the trae owner and under a claim of right for the statutory period. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice.
Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991) (citations omitted). In addition, this court has previously held that:
[E]rection and maintenance of a gate or a wire gap across a road, by an owner, when his purpose is not merely to restrain livestock, constitutes notice to the public that, thereafter, any travel upon the road is by permission of the owner and not as a matter of right to the public or to any individual traveling the road, even though the gate or gap may be left open during certain seasons.
Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970).
Nothing in the record suggests that appellants conducted any activity on the land that would have put appellees on notice that their use was adverse. The testimony of Guy Bobo, one of the appellants, demonstrates that, at one time, even he believed his use of the road was permissive, as he went to one of the appellees personally to ask for an easement on the property. In other testimony, appellees demonstrated how their predecessor simply allowed appellants to use the road in order to be “neighborly.” Even appellants admitted that general public access to the lands had been prohibited. While there was conflicting testimony over which party maintained a gate across the road, there was sufficient testimony in the record for the court to find that appellees, as well as their tenant, had maintained a locked gate on the property for many years. There is nothing in the record that leaves this court with a strong conviction that appellants met their burden and that a mistake was made.
Affirmed.
Special Justice J. Leon Johnson, joins.
Hannah, C.J., and Imber, J., concur.
Gunter, J., not participating.
Jim Hannah, Chief Justice.
I agree that this case should be affirmed; however, I set out my grounds separately. This case presents two issues to be decided by this court. The first issue is whether the circuit court erred in quieting title to disputed land in defendants and counter-complainants David W. Jones, the Estate of Clinton D. Jones, deceased, Dorothy Jones, A.G. Martin, Jr., and Clinton C. Jones (collectively referred to as “Jones”). The second issue is whether the circuit court erred in denying Guy and Nellie Bobo’s petition for a declaration of a prescriptive right to use a roadway across Jones’s land. As discussed below, the remaining issues raised by the Bobos are not subject to review on appeal.
Standard of Review
At issue in the circuit court was an action for a prescriptive easement and an action to quiet title brought as a counterclaim. Both actions in this case are equitable. As such, the circuit court’s decision on the easement is reviewed de novo on the record, and this court will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Id. In reviewing a circuit court’s findings on an equitable issue, this court gives due deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Owners Ass’n of Foxcroft Woods v. Foxglen, 346 Ark. 354, 57 S.W.3d 187 (2001).
Adverse Possession and Laches
The Bobos pled laches in their answer to the counterclaim. They did not plead adverse possession but did raise the issue at trial. No motion to conform to proof was made on the issue of adverse possession. They argue on appeal that the circuit court erred in refusing to rule in their favor based on adverse possession and laches, noting that adverse possession was presented to the circuit court and no objection was raised by Jones.
This case is before us on appeal. Our jurisdiction on appeal is limited to review of an order or decree of a lower court. Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004). Because there is no ruling on the issue of adverse possession or the issue oflaches, there is no order for this court to review on these issues. If the circuit court wrongfully refused to act, that would have been subject to petition for a writ by way of an original action in this court. See, e.g., Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004).
Quiet Title
As the first point on appeal, the Bobos argue that the circuit court erred in quieting title in the disputed land in Jones. By seeking to have title quieted, Jones bore the burden of proof to establish ownership of the disputed land. Williams v. Campbell, 254 Ark. 592, 495 S.W.2d 512 (1973). Under Ark. Code Ann. § 18-60-506 (Repl. 2003), a prima facie title is shown by proof of color of title and payment of taxes for more than seven years. Jones offered deeds showing he held title and proof of payment of taxes for more than fifty years in Hempstead County. The Bobos countered with their own deed, proof of payment of taxes in Miller County, and raised avulsion as a defense.
The disputed land lies near and has been affected by movement in the Red River. In 2000, James K. Cole was retained to survey Jones’s property and found that under the description in the deed, the Bobos were encroaching on Jones’s land. The metes and bounds description of the deed to Jones overlaps the metes and bounds description of a deed to the Bobos. The Bobos’ deed shows the disputed land to be in Miller County, and Jones’s deed shows it to be in Hempstead County.
The issue of just where the land boundary lies in this case depends on movement of the Red River and the issues of avulsion and accretion. The court of appeals in White v. J.H. Hamlen & Son Co., 67 Ark. App. 390, 394-95, 1 S.W.3d 464, 466-67 (1999), summarized the law on riparian rights and accretion and avulsion:
A riparian landowner is at the mercy of the river upon which his land is situated. He acquires, incident to his ownership, whatever land may be added by gradual and imperceptible accretion. See Crow v. Johnston, 209 Ark. 1053, 194 S.W.2d 193 (1946). At the same time, he assumes the risk of losing his property by its being gradually washed away by the waters of the river. Id. When a stream changes its course gradually, i.e., by accretion, the boundaries of the riparian land owners change with the stream. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945). When a stream shifts suddenly, i.e., by avulsion, the boundaries of the riparian landowners do not change with the stream. Id. The question of whether accretion or avulsion has occurred is generally one of fact.
When land boundaries are altered by the movement of a stream, there is a presumption that the movement occurs by gradual erosion and accretion rather than avulsion. Pannell v. Earls, 252 Ark. 385, 483 S.W.2d 440 (1972). Because they raised the issue, the Bobos bore the burden of proving that an avulsion took place. Younts v. Crockett, 238 Ark. 971, 385 S.W.2d 928 (1965). The Bobos had to show that a new channel was cut by sudden and perceptible change. Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960). Such a change must be perceptible while the process is ongoing. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945).
The 1874 act creating Miller County sets the relevant portion of the eastern boundary of the county at mid-channel of the Red River. Since then, the Red River has moved to the west. Once the river was the boundary of the disputed land. Under principle of avulsion, the Bobos prevail because the property lines remain where they were before the movement of the river. If the movement was by accretion, the Joneses prevail because the property lines move with the river.
The Bobos assert that the circuit court erred in refusing to admit all the evidence to be offered by their expert Richard B. Hall. The circuit court found uncertainty in evidence of avulsion, or in other words, found that the Bobos did not meet their burden of proof. While the War Department Map uses the term “cut off’ in showing a change in the flow of the Red River in 1915, there is no explanation on the map of what is meant by that term. It may well refer to avulsion, but it is not clear that it does, and even if it does refer to avulsion, it does not explain just where and to what extent there was an avulsion. Even considering the proffered evidence, I cannot say that I am left with a definite and firm conviction that a mistake has been committed in finding that title is to be quieted the Joneses. Under the standard of review the circuit court should be affirmed.
Prescriptive Easement
In Carson v. County of Drew, 354 Ark. 621, 625, 128 S.W.3d 423, 425-26 (2003), this court recently set out the law on prescriptive easement:
A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. Owners Assoc. Of Foxcroft Woods, supra; See Paul Jones Jr., Arkansas Titles to Real Property §§ 714, 1499, at 443, 906-09 (1935 & Supp. 1959); Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984) (“Prescription is the acquisition of tide to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of tide to the land itself (corporeal hereditament) by adverse possession.”). Like adverse possession, “prescriptive easements . . . are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons.” 25 Am. Jur. 2d Easements and Licenses § 45 (1996); Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Neyland v. Hunter, supra; Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. Neyland v. Hunter, supra; Duty v. Vinson, 228 Ark. 617, 309 S.W.2d 318 (1958); Brundidge v. O’Neal, 213 Ark. 213, 210 S.W.2d 305 (1948). That statutory period for adverse possession is set out in Ark. Code Ann. § 18 — 61—101 (1987).
The Bobos bore the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the roadway. Carson, supra. The Bobos used the roadway since 1973, a period of nearly thirty years at the time the action was filed. However, during most of that time, the roadway has been gated and often locked. The roadway is not fenced, and stock on Jones’s property is restrained by the gates on the roadway. The Bobos have been given keys at times. They have even replaced the gate once. However, while use for nearly thirty years weighs heavily in favor of finding a prescriptive easement, there was also evidence that both the Bobos and the public’s access to the roadway has been limited and controlled by the Joneses over all these years. I cannot say that I am left with a definite and firm conviction that a mistake has been committed in finding that the Bobos’ use of the roadway was permissive. Therefore, the circuit court should be affirmed on this issue.
Imber, J., joins.
Clinton D. Jones, or ‘Clint Jones’, is now deceased. David W Jones, in his capacity as the personal representative of the estate of Clint Jones, is named as an appellee.
An action seeking declaration of a prescriptive easement is an equitable action. Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). Adjudication of statutory rights in quieting title is undertaken pursuant to principles of equity. Ark. Code Ann. § 18-60-504 (Repl.2003). | [
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Annabelle Clinton Imber, Justice.
This case is an appeal from the circuit court’s dismissal with prejudice of a second paternity suit filed against Appellee Jason Morgan. The first paternity suit, initiated on January 30, 1997, by the Office of Child Support Enforcement (OCSE) on behalf of LaNeza Mooney, alleged that Mr. Morgan was the biological father of LaNeza’s daughter, Mahogony Mooney. Paternity testing was ordered by the court on March 4, 1997, and the results of the test showed a 0.00% that Mr. Morgan was Mahogony’s biological father. Thereafter, a motion to dismiss was filed and the circuit court entered an order dismissing the suit without prejudice on April 28, 1997.
Seven years later, after being repeatedly instructed by OCSE to name another father, LaNeza filed a pro se motion requesting additional paternity testing, citing as her reason, “Because I know there is not a chance that the child isn’t his.” On December 19, 2003, the circuit court denied her motion, noting that the previous case had been dismissed without prejudice and another suit had not been filed. Then, on January 22, 2004, OCSE filed a new complaint re-alleging that Mr. Morgan was Mahogony’s father and requesting additional testing. OCSE admitted that the previous action had been dismissed because of the results of the previous paternity test, but alleged that it had a duty to the mother pursuant to Ark. Code Ann. § 9-10-103(b)(5) (Supp. 2005) to secure additional testing for her. The complaint also stated that LaNeza objected to the results of the previous test and was able to pay in advance for retesting. At the April 29, 2004 hearing on the matter, the circuit court requested that OCSE provide authority for the proposition that it could dismiss a suit without prejudice and refile the same suit seven years later. OCSE prepared a letter brief on this point, but the circuit court ultimately dismissed the suit with prejudice on August 11, 2004. OCSE filed a motion for reconsideration on August 23, 2004, which the court denied on September 24, 2004. OCSE then filed a notice of appeal on October 4, 2004. The appeal was certified to us by the Arkansas Court of Appeals as an issue of statutory interpretation. Ark. R. Sup. Ct. l-2(b)(6) (2005).
On appeal, OCSE challenges (1) the circuit court’s determination that the original paternity suit should have been dismissed with prejudice and (2) the subsequent dismissal with prejudice of the second suit. Specifically, OCSE suggests that the rulings are clearly erroneous because dismissals with prejudice are void in paternity actions, pursuant to the rulings in Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995) and State of Arkansas Office of Child Support Enforcement v. Flowers, 57 Ark. App. 223, 944 S.W.2d 558 (1997).
In Davis, the appellant appealed a judgment finding him the father of Kerwin Sheppard and ordering him to pay child support. This judgment came in the third proceeding initiated by OCSE against Mr. Davis. The first action was dismissed without prejudice. Subsequently, Mr. Davis took a paternity test that showed the probability of paternity to be 99.65%. Davis v. Office of Child Support Enforcement, 322 Ark. at 354, 908 S.W.2d at 651. The second paternity proceeding was then dismissed with prejudice, after the parties reached a settlement. More than a year later, OCSE initiated a third suit for paternity and support, arguing that the dismissal with prejudice was void under Arkansas law. Id. at 355, 908 S.W.2d at 651. The trial court agreed and denied Mr. Davis’s motion to dismiss. On appeal, Mr. Davis argued that the trial court should have granted his motion to dismiss the suit pursuant to Ark. R. Civ. P. 41 (2005), based on the prior dismissal with prejudice of the same action.
In reaching a decision in the Davis case, our court examined the trial court’s duty to protect the interest of the minor:
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. 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.
The foregoing rules of public policy protecting minors have been applied to a child’s right to support from his parents. 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. 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. at 355, 908 S.W.2d at 651 (internal citations omitted). Because the circuit court did not consider whether the settlement in the second suit was for the child’s benefit, the court ruled that the order of dismissal was void on its face, and thus did not operate as a bar to the third suit.
Two years later, in State of Arkansas Office of Child Support Enforcement v. Flowers, supra, the Arkansas Court of Appeals faced a situation where the circuit court dismissed.a paternity suit with prejudice after one dismissal without prejudice and numerous attempts to bring the mother and child in for testing. The chancellor found that the mother had been uncooperative and the appellee had been cooperative throughout the proceedings. Id. The court of appeals, relying on Davis, determined that the dismissal with prejudice was void and modified the ruling to dismiss the action without prejudice. Id.
Pursuant to the decisions in Davis and Flowers, there is a strong public policy in Arkansas to protect the interest of the child in determining paternity. The Davis court noted, “[T]he 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.” Davis v. Office of Child Support Enforcement, 322 Ark. at 356, 908 S.W.2d at 652 (citing Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987)). Similarly, the Flowers court stated, “The chancellor’s ruling granting the motion to dismiss would have served to bastardize the minor child, contravening state public policy.” State of Arkansas Office of Child Support Enforcement v. Flowers, 57 Ark. App. at 226, 944 S.W.2d at 559. Here, the circuit court did not expressly determine that a dismissal with prejudice was in the best interests of the child. Moreover, at the time of the trial, paternity had not been established for Mahogony, and the only effect of a dismissal with prejudice is to permanently exclude Mr. Morgan from further paternity testing, even if a mistake in the original test could be demonstrated or if new and more reliable testing became available. Such a complete bar contravenes this state’s strong public policy in favor of establishing paternity. Thus, we hold that the circuit court erred in dismissing the suit with prejudice.
OCSE also argues on appeal that the circuit court erred in considering equitable defenses not raised by Mr. Morgan. Specifically, it contends that the court considered defenses of statute of limitations, laches, waiver, and estoppel in finding that OCSE and the custodial parent had waited too long to request a second test. In its order, the circuit court stated:
Here, this court finds that the first action, seven (7) years ago, was in fact dismissed because the Defendant was not the father. If OCSE or the mother had wanted a second test, either could have asked for one then — not seven (7) years later.
It is true that, generally speaking, parties are required to raise affirmative defenses before the trial court can consider those defenses. Ark. R. Civ. P. 8(c) states:
Affirmative Defenses. In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively accord and satisfaction, arbitration and award, comparative fault, discharge in bankruptcy, duress, estoppel, exclusiveness of remedy under workmen’s compensation law, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. . . .
Ark. R. Civ. P. 8(c) (2005). Defenses enumerated in Ark. R. Civ. P. 8(c) must be specifically pled to be considered by the trial court. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983). Here, Mr. Morgan did not plead the defenses of statute of limitations, laches, waiver, or estoppel, and the circuit court erred in considering those defenses in dismissing the suit.
In support of its argument, OCSE also points out that Ark. Code Ann. § 9-10-103(b)(5) authorizes it to petition the court for additional paternity tests for LaNeza. This section, establishing the procedures for administrative orders for paternity testing states:
(b)(1) If the parentage of a child has not been established, the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration shall send a notice to the putative father, or mother, as appropriate, that he or she is a biological parent of the child. The notice shall inform the parties that the putative father and the mother of the child may sign an affidavit acknowledging paternity and that any party may request that scientifically accepted paternity testing be conducted to assist in determining the identities of the child’s parents.
(5) Any party who objects to the results of such paternity testing may request additional testing upon proper notice and advance payment for retesting, and the office shall assist the contestant in obtaining such additional testing as may be requested.
Ark. Code Ann. § 9-10-103(b)(l), (5) (Supp. 2005). Our court reviews issues of statutory construction de novo, as it is for the appellate court to decide what a statute means. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). The basic rule of statutory construction is to give effect to the intent of the legislature. Arkansas Dep’t of Economic Development v. William J. Clinton Presidential Foundation, 364 Ark. 40, 216 S.W.3d 119 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.
The plain language of this statute suggests that it does not apply to court-ordered paternity testing. First, section 9-10-103 is devoted to paternity tests ordered by OCSE and not tests ordered by the court. A different provision, Ark. Code Ann. § 9-10-108, specifically deals with court-ordered paternity tests. Ark. Code Ann. § 9-10-108 (Repl. 2003). More importantly, while some language in section 9-10-103 incorporates the procedures of section 9-10-108, there is no language in section 9-10-108 incorporating the protections of section 9-10-103. Thus, we conclude that the legislature did not intend for section 9-10-103(b)(5) to apply to court-ordered testing.
As the instant case involved court-ordered testing, the proper statute for consideration is Ark. Code Ann. § 9-10-108. That statute provides procedures for challenging the procedures or results of a paternity test:
(5) (A) A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling the expert as a witness unless a motion challenging the test procedures or results has been filed within thirty (30) days of the trial on the complaint and bond is posted in an amount sufficient to cover the costs of the duly qualified expert to appear and testify.
(B)(i) If contested, documentation of the chain of custody of samples taken from test subjects in paternity testing shall be verified by affidavit of one (1) person witnessing the procedure or extraction, packaging, and mailing of the samples and by one (1) person signing for the samples at the place where same are subject to the testing procedure.
(ii) Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of these specimens.
Ark. Code Ann. § 9-10-108(5). Though that statute does not explicitly provide procedures for requesting additional court-ordered tests, the statute also does not exclude such a possibility. In light of the legislative intent “that paternity of the children be established in the most expedient manner for all children of this state,” we believe the legislature intended to give the circuit courts wide discretion to take actions to resolve the question of paternity. Act 986 § 5 of 1991.
The Supreme Court of Pennsylvania has examined the issue of granting additional paternity tests. See, e.g., Cable v. Anthou, 548 Pa. 551, 699 A.2d 722 (1997). In Cable, the Pennsylvania court examined the issue of whether, after obtaining one buccal swab test for paternity, a mother could request an additional test. The court held that the party requesting an additional paternity test must prove that the first test was defective before the court can compel a second paternity test, stating
We are sensitive to the fact that testing for paternity has the potential for harassment if a court were to grant every request for an additional test. As a result, the results of the initial paternity test remain viable and binding in the determination of paternity unless and until the proponent of the second test proves that the first test is not trustworthy. Once the movant proves that the first test was defective, then we weigh the parties’ interests to determine whether a subsequent test is justified considering the Fourth Amendment privacy interests.
Id. at 560, 699 A.2d at 726 (internal citations omitted). We agree with this reasoning and adopt this standard for determining when a court can compel additional paternity tests.
In this case, the circuit court did not err in denying the request for an additional paternity test. While the court erroneously considered affirmative defenses not raised by Mr. Morgan, we will affirm a circuit court when it has reached the right result, even if for the wrong reason. Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005); Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999). Here, OCSE presented no evidence that the first paternity test was untrustworthy or defective. Instead, OCSE merely relies on LaNeza’s statements that Mr. Morgan must be the father of Mahogony because she engaged in sexual intercourse with him during the time of conception. Such evidence is not enough to qualify OCSE for an additional paternity test.
In light of the original test excluding Mr. Morgan as the father and OCSE’s failure to make an adequate showing for an additional test, the circuit court did not err in dismissing the suit. However, pursuant to the decisions in Davis and Flowers, we. conclude that here the dismissal with prejudice is void and does not bar future proceedings. Accordingly, we modify the circuit court’s ruling to dismiss OCSE’s paternity action without prejudice and affirm.
Affirmed as modified.
See, e.g., Ark. Code Ann. § 9-10-103(b)(2)(C); Ark. Code Ann. § 9-10-103(c). | [
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Betty C. Dickey, Justice.
This appeal arises from an order of the Ashley County Circuit Court, Domestic Relations Division, finding William Watt the father of Lakesha Lemon and ordering him to pay child support arrearages from the date of the mother’s death, June 2002, to the child’s graduation from high school, June 2004. The total payment ordered was $5,280.00, due in monthly installments of $240.00. Appellant alleges that the trial court erred by: (1) requiring appellant to submit to paternity testing; (2) finding that the appellee, Sara Smith, sister and custodian of Lakesha Lemon, had standing to bring the lawsuit; and (3) not applying laches as an affirmative defense to appellee’s claim. We disagree and affirm the trial court.
The child in this case, Lakesha Lemon, was born on or about March 26, 1986. Lakesha was sixteen when her mother, Lula Lemon, died in June 2002. Lula Lemon had never sought child support nor a paternity action. When Sara Smith, Lakesha Lemon’s sister, assumed responsibility for Lakesha after their mother’s death, the State of Arkansas Office of Child Support Enforcement (OCSE) filed this suit on their behalf. The trial court ordered appellant to submit to paternity testing, although appellant denied paternity and objected to any corroboration testimony by Sara Smith, since she had not been an eyewitness to any sexual intercourse between Lula Lemon and appellant.
Appellant asserts that he should not have been subjected to “invasive testing,” referring to the paternity test, and that such testing was a violation of his constitutional rights under the Fourth Amendment to the United States Constitution. Appellant also argues that the custodian, Sara Smith, was not a proper witness to give corroborative testimony, as required by the applicable statute, since she could not “say with assurance that Appellant had access and that sexual intercourse had occurred between the decedent and Appellant.”
First, the trial court had specific authority to order the paternity test. In addition, the same statute granting the court authority to order a paternity test makes an express distinction between the type of testimony required when the mother is alive and when the mother is deceased. Ark. Code Ann. § 9-10-108(a)(2)(A) (Repl. 2002 and Supp. 2005) instructs that “[u]pon motion of either party in a paternity action when the mother is deceased or unavailable, the trial court shall order that the putative father and child submit to scientific testing for paternity. . . .” (Emphasis added.) The court properly ordered the paternity test and the results evidenced that the probability that appellant is Lakesha Lemon’s father is 99.95%. The results of a second paternity test, requested by appellant, found the probability that appellant is Lakesha Lemon’s father to be 99.88%. We will not address the merits of appellant’s argument that the testing was in violation of his constitutional rights. Although appellant generally mentioned this issue, the constitutional argument was not developed at the trial court level, nor was it supported by legal authority in his appellate brief; therefore, we will not consider the argument. See Batiste v. Arkansas Dep’t of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005); Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004); Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000).
Appellant implies that corroborating testimony in a paternity suit must assure the court of access and sexual intercourse. That conclusion is inaccurate. When the mother is alive, she is required to give corroborating testimony regarding access during the probable period of conception to make a. prima facie case of paternity. Ark. Code Ann. § 9-10-108(a)(6)(A). However, when the mother is deceased, Ark. Code Ann. § 9-10-108(a)(6)(B) applies.
If the results of the paternity tests conducted pursuant to subdivision (a)(2) of this section establish a ninety-five percent or more probability that the putative father is the biological father of the child, after corroborating testimony concerning the conception, birth, and history of the child, this shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such proof.
Ark. Code Ann. § 9-10-108(a)(6)(B) (emphasis added). While appellant denied ever having sexual relations with the mother, Sara Smith testified that she was seventeen years old when Lakesha was bom, that her mother told her the father was appellant, and that she remembered appellant being at their home during the summer of 1985, as well as many phone conversations between appellant and her mother. We will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000). The trial judge considered that appellant offered no rebuttal to Sara Smith’s testimony; he was only able to deny that he was the father and to deny that he was ever romantically involved with the mother. Appellant also took a long pause before denying that he had sexual intercourse with the mother. The judge determined that the testimony of Sara Smith was far more credible than that of appellant. Comparing the testimony of appellant with that of Sara Smith is a matter of credibility of witnesses, an area where this court defers to the trial court. State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005). This court cannot find clear error on the part of the trial court, and we will affirm the decision to order paternity testing and affirm the finding that appellant is the father of Lakesha Lemon as a matter of law.
Appellant also states that Sara Smith did not have proper standing to bring this suit, and offers, in the alternative, that the payment should only be retroactive to the date of the complaint, January 8, 2003, to Lakesha’s eighteenth birthday. The argument that Sara Smith does not have standing is irrelevant, as the plaintiff listed in all the pleadings is the Office of Child Support Enforcement (OCSE). Ark. Code Ann. § 9-10-104 (Repl. 2002 and Supp. 2005) states that “[p]etitions for paternity establishment may be filed by: (1) a biological mother; (2) a putative father; (3) a person for whom paternity is not presumed or established by court order; or (4) The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administra tion.” It is evident that the OCSE has the authority to bring a paternity action. Appellant cites Bean v. Office of Child Support Enforcement, supra, to support his argument that the payment should only be retroactive to the date of the complaint. However, in that case, this court noted that Ark. Code Ann. § 9-10-111 allows the chancery court to award support from as early as the date of the child’s birth. Id. The trial court had opted to award past support from the date of the filing of the complaint against the putative father, and this court held that the decision was not clearly erroneous because the chancellor could have awarded support from the child’s date of birth forward. Id. Similarly, in the instant case the trial court could have awarded support from Lakesha’s birth forward. Therefore, the decision to award support from the date of her mother’s death, June 2002, was not clearly erroneous. While appellant briefly mentioned that the payment should end at the date of the child’s eighteenth birthday, he never developed that argument and did not cite the legal authority in support. This court will not consider and research that argument sua sponte. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004).
Finally, appellant asserts laches as an affirmative defense to appellee’s paternity claim. Appellant did raise waiver as an affirmative defense in his pleadings to the trial court. The trial court agreed with appellant and noted that there was no explanation offered regarding the failure of Lakesha’s mother to bring an action against appellant for child support earlier. Accordingly, the court did not order support retroactive to birth. Rather, the court found that once the mother passed away and the responsibility for Lakesha became Sara Smith’s, Smith acted promptly in her efforts to establish paternity and a support obligation. A party must affirmatively plead certain defenses, including laches. Ark. R. Civ. P. 8(c). Appellant did not raise the defense of laches at the trial court level, therefore we cannot determine if the trial court erred in failing to consider it. It has long been held that this court will not take up issues raised for the first time on appeal. Smith v. State, 363 Ark. 576, 215 S.W.3d 588 (2005).
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Annabelle Clinton Imber, Justice.
This case is an appeal of a circuit court’s denial of postconviction relief pursuant to Ark. R. Crim. P. 37 (2005). The constitutional question before us is whether a criminal defendant was denied his Sixth Amendment right to counsel solely because his nonresident lawyer, who was licensed to practice law in another state, failed to secure pro hac vice admission to the Arkansas court trying his criminal case. We hold that such a circumstance does not constitute a per se violation of the Sixth Amendment right to counsel.
Appellant Gregory Fisher was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to 480 and 180 months’ imprisonment, to be served consecutively, and the court also imposed a fine of $150,000. At trial, Mr. Fisher and his co-defendant, Kevin McKenzie, were both represented by Charles E. Waldman. Mr. Waldman is a licensed attorney in the State of Tennessee, but not in the State of Arkansas. On direct appeal, the Arkansas Court of Appeals affirmed Mr. Fisher’s conviction. Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004). Following his conviction and direct appeal, Mr. Fisher filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. In his petition, Mr. Fisher argued that because Mr. Waldman was never licensed to practice law in Arkansas, he was denied his Sixth Amendment right to counsel. The circuit court concluded that, among other things, Mr. Waldman had associated with an attorney licensed to practice law in Arkansas, and, thus, Mr. Fisher was not denied his constitutional right to counsel. From the order denying his Rule 37 petition for postconviction relief, Mr. Fisher now appeals.
Because the instant case is an appeal of a circuit court’s denial of postconviction relief, we have jurisdiction pursuant to Ark. R. Crim. P. 37 and Ark. Sup. Ct. R. l-2(a)(8) (2005). We have repeatedly held that we will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Jones v. State, 340 Ark. 1, 4-5, 8 S.W.3d 482, 484 (2000)(citing Norman v. State, 339 Ark. 54, 2 S.W.3d 771 (1999) (per curiam) and State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999)).
Mr. Fisher’s sole point on appeal is that he was denied his constitutional right to counsel because his trial counsel, Charles E. Waldman, was not licensed to practice law in Arkansas, and, thus, Mr. Waldman was not able to effectively represent him. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have assistance of counsel for his defense.” U.S. Const., amend. VI. This constitutional provision provides those accused with the right to effective assistance of counsel at every critical stage of a criminal proceeding. Strickland v. Washington, 466 U.S. 668 (1984). As a general rule, to prevail on a claim of ineffective assistance of counsel, the petitioner must show-first that counsel’s performance was deficient. Strickland v. Washington, supra; Jones v. State, supra. This requires a showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Petitioner must also show that the deficient performance prejudiced the defense; this requires a showing that counsel’s error was so serious as to deprive the petitioner of a fair trial. Id. On appeal, the court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance. Id.
Notwithstanding the Supreme Court’s two-pronged analysis in Strickland v. Washington, supra, Mr. Fisher contends on appeal that his counsel’s performance was per se unconstitutional because trial counsel was not authorized to practice law in Arkansas. In the alternative, Mr. Fisher contends that trial counsel was also ineffective under the Strickland test because he failed to properly preserve the issue of sufficiency of the evidence for appellate review.
1. Per Se Ineffective Assistance of Counsel
In Arkansas, nonresident lawyers are permitted by comity and courtesy to appear pro hac vice in our courts. Specifically, Rule XIV of the Arkansas Rules Governing Admission to the Bar states:
A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court of Appeals for the circuit in which the attorney resides or in the Supreme Court or the highest appellate court of the state of the attorney’s residence, and who is in good standing in the court of the attorney’s admission, will be permitted by comity and by courtesy to appear, file pleadings and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.
Unless the State in which the said nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresident lawyer.
A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.
Rule XIV of the Arkansas Rules Governing Admission to the Bar (2005). As noted in the State’s brief, the rule provides that a trial court may require the nonresident lawyer to associate an Arkansas lawyer and the trial court may require that the Arkansas lawyer be responsible to the court for the pending case. In contrast to such discretionary provisions, the rule mandates that the nonresident lawyer be afforded the privilege to appear pro hac vice in Arkansas courts if and only if (1) the State where he or she is licensed accords similar comity and courtesy to Arkansas lawyers and (2) the lawyer submits a written statement attesting that he or she will abide by all disciplinary procedures applicable to Arkansas lawyers. The drafters of Rule XIV clearly made a distinction between permissive requirements — what a lawyer may be required to do — and mandatory requirements — what a lawyer must do — in order to appear pro hac vice by comity. In other words, while the trial court may have discretion in requiring the nonresident lawyer to associate with an Arkansas lawyer, no such discretion exists with regard to the “similar comity” provision and the requirement that the nonresident lawyer file a written statement attesting that he or she will submit to all disciplinary procedures applicable to Arkansas lawyers.
In this case, as noted earlier, Mr. Waldman was a licensed lawyer in the State of Tennessee, but he was not licensed in the State of Arkansas. There was testimony that Mr. Waldman had prepared a motion to be admitted pro hac vice, but the circuit court instructed him that such a motion was unnecessary. The record, however, does not indicate that a written statement was ever filed in accordance with Rule XIV, by which Mr. Waldman attested that he would submit to the disciplinary procedures applicable to Arkansas lawyers. Regardless of the circuit court’s statement to the contrary, such a written statement is mandatory under Rule XIV. Consequently, because of Mr. Waldman’s noncompliance with Rule XIV’s written-statement requirement, we must conclude that Mr. Fisher’s trial counsel was not authorized to appear pro hac vice in this State at the time of the trial.
At the outset, it is important to note that our court has not heretofore considered the question of what circumstances, if any, constitute a per se violation of the Sixth Amendment. The test under the Strickland analysis involves an examination of specific acts and omissions on the part of counsel that are alleged to constitute deficient performance resulting in prejudice to the defense. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The Nebraska Supreme Court has nonetheless noted that some courts “have held that in certain circumstances, legal representation by a particular individual constitutes a per se violation of a criminal defendant’s Sixth Amendment right to the effective assistance of counsel, regardless of the particulars of such representation.” State v. McCroy, 259 Neb. 709, 713, 613 N.W.2d 1, 4-5 (2000).
Generally, other jurisdictions have-held that there is a per se violation of the Sixth Amendment when the person posing as a lawyer was never properly licensed to practice law. For instance, in Solina v. United States, 709 F.2d 160 (2d Cir. 1983), the defendant was represented by counsel who had graduated from an accredited law school but had never successfully passed the bar exam. Consequently, he had never been admitted to the bar. Under those circumstances, the Second Circuit Court of Appeals held that this constituted a per se violation of the defendant’s Sixth Amendment right to “assistance of counsel.” Id. at 167. Likewise, in U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990), the federal appellate court followed a similar rationale in holding that representation by a lawyer who had been admitted to the bar only on the basis of false representations regarding his legal education constituted a per se Sixth Amendment violation. The court concluded in part, “In general, the Sixth Amendment guarantee is not satisfied if the accused is represented by a person who, for failure to meet substantive bar admission requirements, has never been admitted to the practice oflaw in anyjurisdiction.” Id. at 887. Similarly, the Florida Court of Appeals determined that representation by an individual who had graduated from law school and passed the bar examination, but who had been denied a license on grounds of lack of moral character, constituted per se ineffective assistance of counsel. Huckelbury v. State, 337 So.2d 400 (Fla.App. 1976). The Florida appellate court held that the case presented “a situation where one without proper credentials as a lawyer in any state or federal jurisdiction posed as a lawyer. And, he who so posed has not been considered to be of sufficient moral fiber to bear the stamp of approval of the Florida Bar.” Id. at 403.
The situation is different, however, when a lawyer admitted to the bar in any jurisdiction fails to meet another jurisdiction’s pro hac vice requirements. Both state and federal courts have been unwilling to hold that such a failure rises to the level of a per se Sixth Amendment violation. For instance, in Cole v. United States, 162 F.3d 957 (7th Cir. 1998), the Seventh Circuit Court of Appeals addressed the very question at issue here. In that case, the trial lawyer was licensed in Illinois and was admitted to the bars of the Northern District of Illinois, the Eastern District of New Y ork, and the Northern District of Minnesota, but he was not admitted to the bar in the Northern District of Indiana, where the trial had taken place. The Seventh Circuit discussed at length the constitutional implications of a lawyer’s failure to secure pro hac vice admission to the court trying the defendant’s criminal case:
The right to the representation of counsel implies some minimum standard of competence, but “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some fomm demonstrating the specialized knowledge of a lawyer.” United States v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir. 1998), petition for cert. filed, (U.S. Sept. 8, 1998) (No. 98-6016). This court has held that “the ‘Counsel’ to which the sixth amendment refers is a professional advocate who meets the standards set by the court.” Reese v. Peters, 926 F.2d 668, 669 (7th Cir.1991). The admission of non-local attorneys pro hac vice is a longstanding tradition in both federal and state courts. Id. at 669-70. Typically, admission pro hac vice is a formality, so long as the courts of some jurisdiction have approved the attorney as having the requisite skill and integrity to practice law. Id. Thus, whether a lawyer has been admitted to practice in the local jurisdiction is not of constitutional dimension. ’’What matters for constitutional purposes is that the legal representative was enrolled after the court [of some jurisdiction] concluded that he was fit to render legal assistance.” Id. at 670.
Only where the attorney had never been admitted to practice before any court at all, and thus should be considered a non-lawyer, have courts found perse violations of the right to counsel. See, e.g., Solina v. United States, 709 F.2d 160 (2d Cir.1983) (representation by person who had failed twice to pass the New York state bar examination and was not a member of any other bar was a per se violation of the right to counsel); cf. United States v. Novak, 903 F.2d 883 (2d Cir.1990) (representation by attorney who gained law license through fraud was a per se Sixth Amendment violation). Hewing to this rule, we have not applied a perse rule even in a case where counsel, who had never represented a client in any capacity, had passed one state bar but had failed the bar three times for the state in which the case arose. United States v. Merritt, 528 F.2d 650 (7th Cir.1976).
Indeed, although this court has never been presented with the precise issue Cole raises, other federal courts of appeal have held that a lawyer’s failure to seek or gain pro hac vice admission to the court trying the defendant’s criminal case does not result in a per se Sixth Amendment violation. See, e.g., Kieser v. People of New York, 56 F.3d 16 (2d Cir.1995); United States v. Costanzo, 740 F.2d 251 (3d Cir.1984); Derringer v. United States, 441 F.2d 1140 (8th Cir.1971); United States v. Bradford, 238 F.2d 395 (2d Cir.1956).
Id. at 958 -959. See also United States v. Sanders, 337 F.3d 845 (8th Cir.2004); People v. Lopez, 242 Ill. App.3d 160, 610 N.E.2d 189 (1993). Similarly, the Indiana Court of Appeals adopted the Seventh Circuit’s reasoning in Little v. State, 819 N.E.2d 496 (Ind. Ct. App. 2004). Despite the trial lawyer’s failure to comply with Indiana’s state pro hac vice rules, the Indiana appellate court concluded that counsel’s failure to comply with state rules did not amount to a per se violation of the accused’s Sixth Amendment right to counsel. Id.
To summarize, in determining what constitutes a per se violation of the Sixth Amendment, courts have generally examined the facts to ascertain whether trial counsel was properly licensed in any jurisdiction at the time of trial. If trial counsel was admitted to the bar in any jurisdiction at the time of trial, courts have tended to shy away from applying a per se rule. Mr. Waldman was a properly licensed attorney in the State of Tennessee at the time of trial. While he failed to comply with this State’s pro hac vice requirements, we decline to hold that such a failure rises to the level of a per se Sixth Amendment violation. Our ruling on this point is supported by the above-cited cases from other jurisdictions.
2. The Strickland "Two-Pronged Analysis
Mr. Fisher argues in the alternative that he was entitled to relief under the Strickland test. Specifically, he claims that trial counsel failed to preserve his challenge to the sufficiency of the evidence for appellate review. As to that claim, the trial court did not rule on counsel’s alleged ineffective assistance in failing to move for a directed verdict at the close of the State’s case, and to renew the motion at the close of Mr. Fisher’s case. It is appellant’s obligation to obtain a ruling in order to preserve an issue for appellate review. Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). Accordingly, Mr. Fisher’s claim is procedurally barred.
3. Conflict of Interest
For his final argument, Mr. Fisher suggests that Mr. Waldman’s joint representation of Mr. Fisher and his co-defendant, Mr. McKenzie, created a conflict of interest that prejudiced Mr. Fisher. That argument was not raised in his original Rule 37 petition for postconviction relief. Accordingly, we are precluded from considering the issue for the first time on appeal. See Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).
Affirmed.
Notably, we have stated, “Although Rule XIV was apparently drafted to apply primarily in trial proceedings, we have applied it to govern appearances of counsel in appeals.” McKenzie v. State, 354 Ark. 2, 3—4, 116 S.W.3d 461, 461—462 (2003). Accordingly, the appellate courts are afforded the same discretion as trial courts under Rule XIV.
The circuit court concluded that Mr.Waldman had associated local counsel and, therefore, did not have to be admitted pro hac vice. The record indicates that, despite the fact that a local attorney filed an appearance, no attorney other than Mr.Waldman appeared on behalf of Mr. Fisher at the trial. | [
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BRANDON J. HARRISON, Judge .
| (Valois Dynasty, LLC (Dynasty) appeals a June 2015 order from the Pulaski County Circuit Court that denied its motion to intervene and motion to set aside or amend the confirmation and approval of sale in a judicial foreclosure that involved three commercial properties. We affirm.
I. Facts
In December 2010, Dynasty contracted with Little Rock Group, LLC (Little Rock Group) and Steve St. Clair. The parties dispute the terms and meaning of the agreement. The contract was drafted using the Arkansas- Realtors Association’s standard real-estate contract and is titled “Real EstateContract (Commercial).” The-contract lists Dynasty as |2the “Buyer” and St. Clair and Little Rock Group collectively as the “Seller.” Paragraph 3 of the contract states:
3. PURCHASE PRICE. Buyer shall pay the following to Seller for the Property (the “Purchase Price!’). $4,750,000 payable as follows:
$600,000 cash at close, the balance of $4,150,000 less pay-off amount to 'lender at the time of closing will be paid in cash to Seller when fixed rate adjusts within two years. Buyers are purchasing into the LLC and taking on full responsibility as such. In so doing, they are relieving Steve St. Clair from any and-,all responsibility. At closing, Buyer will be totally responsible for all payments, upkeep, maintenance, management, accounts payable,1 accounts receivable, insurance, taxes, legal fees, utilities, and other debt or liability. Seller will be indemnified' from any and all liability concerning these properties and "Little Rock Group, LLC. Buyer will be indemnified from any and all claims prior to closing. Seller will remain on note and mortgage-until fixed rate adjusts without recourse.
The contract gives the address and legal description as “Little Rock Group, LLC [i]ncluding but not limited to the three apartment complexes: Willow Creek Apartments [], Mabelvale Pike Apartments [ ], and McCormick Apartments [ ].” Paragraph 17, titled “CONTINGENCIES” lists as “additional requirements” that “It is understood and agreed that the LLC and it’s [sic] properties are being purchased AS-IS, WHERE-IS.’ ”
It is undisputed that no deed was ever recorded in favor - of Dynasty. The parties also do not dispute that City National Bank (City Bank) held the promissory notes for the Willow Creek Apartments, Mabelvale Pike Apartments, and McCormick Apartments. We refer to these three apartment .complexes collectively as “the property.” City Bank filed a complaint.for foreclosure in August 2014. City Bank named, and served, two defendants in the foreclosure action: Little Rock Group and Sunwest Bank. Suriwest Bank held second mortgages on the property, and it did not have priority over City Bank’s first mortgages. Sunwest Bank’s interest or involvement is not at issue in this appeal.
| ¡¡Little Rock Group . failed to answer City Bank’s foreclosure complaint, -and the circuit court entered a judgment and decree "of foreclosure on 3 December 2014. The court ordered the court clerk (Com missioner) to sell the property and that the sale proceeds be used to satisfy the judgment amount. The time, terms, and place of sale were published in the Arkansas Democrat-Gazette on 24 March 2015. On 9 April 2015, the Commissioner sold the property to the highest bidder, which was City Bank (the mortgagee and note holder). The circuit court entered a confirmation of the sale and an order approving the deed on 21 April 2015. Dynasty filed a motion to intervene on 8 May 2015, alleging that it had a protected interest in the property and requested intervention as a matter of right and for permissive intervention. It also filed a motion “to set aside or amend confirmations and approval of report of sale” pursuant to Ark. R. Civ. P. 6(a), (c), and (d); 52(b)(1); 59(b); and 60(a).
The court held a short motion hearing on 4 June 2015, during which the parties submitted more evidence, including some testimony, to support their opposing positions. James Wade, a City of Little Rock employee, confirmed that the three apartment complexes were “constant problems” for the city; in one day they were given 108 life-safety violations and 142 non-life-safety violations. David Wilson testified that City Bank had hired him to manage the property. According to Wilson, City Bank had plans to improve the property so that it could sell it.
Janice Clayton, an escrow agent for First National Title Company, testified that she was familiar with the closing of the real-estate contract between Dynasty and Little Rock Group, which occurred in February 2011. The court received into evidence an escrow-) 4settlement statement from First National Title Company dated 28 February 2011. Among other things, Clayton explained that the escrow statement shows that Dynasty paid a $227,500 real-estate brokerage fee to Betty Krenz and Associates and that First National issued a title insurance policy for $4,750,000. The escrow statement also showed that City Bank received a $105,000 forbearance payment in the transaction, and evidence of Clayton’s email correspondence with City Bank’s attorney in connection with the closing was introduced. Property taxes were divided and prorated between Dynasty and Little Rock Group. On cross-examination, Clayton agreed that the real-estate contract “was essentially an infusion of money” from Dynasty into Little Rock Group and “really this wasn’t the purchase of ground, of land, of the apartments. It was the purchase of an interest in the limited liability company, Little Rock Group, that actually owned the apartments.”
The court entered an order denying Dynasty’s motion to intervene and motion to set aside or amend the confirmation and approval of sale on 8 June 2015. The court gave no reason for its decision. Dynasty has appealed. On appeal, it argues that it had an ownership interest in the foreclosed properties and that the circuit court erred when it refused to allow Dynasty to intervene and set aside the sale of the foreclosed properties. Dynasty claims that it was denied intervention as a matter of right, or in the alternative, permissive intervention.
II. Discussion
An intervention is a proceeding by which a person, not originally a party to an action, is permitted to become a party and therefore protect some alleged right or interest at issue. Gravett v. McGowan, 318 Ark. 546, 886 S.W.2d 606 (1994). Arkansas Rule of Civil Procedure 24(a) provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a stat ute of this state confers an unconditional right to intervene; or (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.
(Emphasis added.) To intervene as a matter of right when there is no statute expressly permitting it, as in this case, our supreme court has interpreted Rule 24(a) to require that the applicant show (1) he or she has a recognized interest in the subject matter of the litigation, (2) the interest might be impaired by the disposition of the action, and (3) the interest is not adequately protected by any of the existing parties to the action. Ark. Democrat-Gazette, Inc. v. Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004).
Permissive intervention is governed by Rule 24(b):
Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(Emphasis added.) An order denying a motion to intervene is immediately appealable. See Ark. R.App. P.—Civ. Rule 2(a)(2); Cupples Farms P’ship v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992); Billabong Prods., Inc. v. Orange City 6Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). Whether a motion to intervene is permissive or as a matter of right, the motion must be timely. See Ark. R. Civ. P. 24(a)-(b). The timeliness question is a matter within the discretion of the circuit court, which will be reversed only for an abuse of that discretion. Nat’l Enters., Inc. v. Union Planters Nat’l Bank of Memphis, 322 Ark. 590, 910 S.W.2d 691 (1995).
Timeliness is determined from all the circumstances, with the following factors being considered: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Ballard v. Garrett, 349 Ark. 371, 78 S.W.3d 73 (2002). Lack of notice is a factor that may be considered. Nw. Ark. Area Agency on Aging v. Golmon, 70 Ark.App. 136, 15 S.W.3d 363 (2000). But after a final judgment has been entered, intervention is generally allowed only “upon a strong showing of entitlement” or a “demonstration of unusual and compelling circumstances.” UHS of Ark, Inc. v. City of Sherwood, 296 Ark. 97, 102, 752 S.W.2d 36, 38 (1988).
In this case, we do not determine whether Dynasty was entitled to intervene as a matter of right or permission because we hold that its motion to intervene was not made in a timely manner. Although the circuit court made no factual findings on the threshold issue of timeliness, in the absence of a showing to the contrary, we presume that the circuit court acted properly and made findings of fact that were necessary to support its judgment. See Curry v. Pope Cty. Equalization Bd., 2011 Ark. 408, 385 S.W.3d 130. According to our supreme court, the circuit .court “must first be satisfied as to timeliness” of the motion to intervene. Cupples, 310 Ark. at 602-03, 839 S.W.2d at 190. Because we resolve .this case 17based on the timeliness of Dynasty’s intervention motion alone, we offer no opinion on the merits of the motion to intervene.
Here, the circuit court did not abuse its discretion when it denied Dynasty’s motion to intervene as untimely. By the ’time Dynasty filed its motion to intervene, the court had entered a judgment, the property had been sold, and the court had approved the sale. City Bank had already paid legal fees for the foreclosure litigation and incurred expenses in publication and court costs. City Bank had also invested in the apartments to improve and re-sell them and had hired David Wilson as the property manager. Dynasty has offered no reason for. its delay, though it does assert an ownership interest in the property. Dynasty also does not'express what purpose intervening would accomplish. It is an appellant’s burden to demonstrate and explain reversible error. Tri-Eagle Enters, v. Regions Bank, 2010 Ark. App. 64, 373 S.W.3d 399. On this record, we conclude that the circuit court did not abuse its’ discretion in not finding “unusual and compelling circumstances” entitling Dynasty to intervene in the case after the final judgment was entered.
To round out our discussion, we address the court’s denial of Dynasty’s “post-trial” motion “to set aside or amend confirmations and approval of report of sale.” When Dynasty filed its “post-trial” motion, its status before the circuit court was as a possible intervener. Dynasty was not a named party to the foreclosure action. As a general rule, a nonparty is not bound by a court’s judgment, and we do not act upon an appeal taken by one not a party to the action below. See In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999); First State Bank of Eureka Springs v. Cook, 192 Ark. 213, 90 S.W.2d 510 (1936). While we have recognized two circumstances where a nonparty may pursue appellate review of a circuit |8court judgment, neither applies here. - The first exception is under Ark. R. Civ. P. 60(k)— but Dynasty sought no relief .under this rule in the circuit court, so it cannot seek it here. Our supreme court has recognized that another exception exists .under a “unique set of facts” when “the right of those interested, i.e., pecuniarily affected, to perfect an appeal where action had been taken.without notice to the one complaining.” See Stuhr v. Oliver, 2010 Ark. 189, at at 363 S.W.3d 316, 319. This second exception does not apply because Dynasty has not challenged the price, the terms, or the court’s approval of the judicial sale; nor has it explained how the judicial salé altered its financial interests.
III. Conclusion
We affirm the circuit court’s denial of Dynasty’s motion to intervene and motion to set aside or amend the confirmation and approval of sale.
Affirmed.
Abramson and Glover, JJ., agree. | [
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PAUL E. DANIELSON, Associate Justice
|!Appellant Latavious D. Johnson was convicted by a Lee County jury of.the capital murder of Barbara A. Ester and sentenced to death. Because the death penalty was imposed in this case, our jurisdiction is pursuant to Arkansas Supreme Court Rule l~2(a)(2) (2015). Johnson raises the following points on appeal: (1) the circuit court erred in denying a jury instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to Arkansas Code Annotated section 5-10-104(a)(l) (Repl. 2013); and (2) the circuit court erred in refusing to grant access to certain Arkansas Department of Correction (“ADC”) records. Johnson also discusses other objections made at trial, although he'does not ask for reversal on these points. We have reviewed the record and Johnson’s arguments on appeal, find no error, and affirm.
On January 20, 2012, Barbara Ester, a correctional officer at the East Arkansas Regional Unit, approached Johnson, an inmate, about wearing contraband shoes. Johnson | atold Officer Ester that the shoes were not contraband. Officer Ester left and came back .with Lieutenant Steven Lane. The officers attempted to confiscate the shoes. Johnson then stabbed Officer Ester with a “shank” three times. Officer Ester was taken to the hospital where she died.
At the time of the stabbing, Johnson was serving a life sentence for murder in the first degree. Johnson was charged with the capital murder of Officer Ester pursuant to Arkansas Code Annotated section 5-10-101. During his trial in the Lee County Circuit Court, Johnson testified on his own behalf. During his testimony, he admitted stabbing Officer Ester but denied any intent to kill her. The jury convicted Johnson of capital murder and sentenced him to death. Because he was sentenced fo death, the circuit court ordered the circuit clerk to file a notice of appeal on Johnson’s behalf pursuant to Arkansas Rule óf Appellate Procedure — Criminal 10(a).
I. Manslaughter Instruction
For his first point on appeal, Johnson argues that the circuit court erred in denying an instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to Arkansas Code Annotated section 5 — 10—104(a)(1), which states in pertinent part:
(a) A person commits manslaughter if:
(1)(A) The person causes the death of another person under circumstances that would be murder, except that he or she causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.
(B) The reasonableness of the excuse is determined from the viewpoint of a person in' the actor’s situation under the circumstances as the actor believed them to be.
IsSpecifically, Johnson argues that the instruction on manslaughter should have been allowed because , there was a rational basis for a, finding of extreme emotional disturbance for which he had a reasonable excuse to stab Officer Ester.
To support this argument, Johnson alleges that the actions of the ADO personnel and the-living conditions at the facility provide sufficient evidence of a provocation that constituted a reasonable excuse- for his actions. He relies on the following assertions: (1) the prison environment was very difficult, in particular “tensions inherent in hundreds of people ihvoluntarily crammed togéther and deprived of all human autonomy are extreme”; (2) his prized possession was á pair of shoes that was falsely alleged to be contraband; and (3)' inmates are faced with prison guards with violent and arrogant attitudes.
A. papty is entitled to a, jury instruction when it is a correct statement of law and when there is some basis 'in the evidence to support giving the instruction. Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643 (citing Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006)). A trial court is required -to give a jury instruction if there is some evidence to suppoi’t it. Id. In determining if the circuit court erred in refusing an instruction in a criminal trial, the test is whether -the omission infects the entire trial such that the resulting conviction violates due process. Id. (citing Gil- crease v. State, 2009 Ark. 298, 318 S.W.3d 70; Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002)). It is reversible error to refuse to instruct on a lesser-included offense when there is even the slightest evidence to support the instruction. Fincham (citing Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005); Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005)), This court will not reverse a trial court’s ruling on the submission of a lesser-included jury instruction absent an abuse of discretion. Pollard v. State, 2009 Ark. 434, 336 S.W.3d 866 (citing Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009)). We will affirm a trial court’s decision to not give a lesser-included-offense instruction if there is not a rational basis for giving the instruction. Id.; see also Ark.Code Ann. § 5-1-110.
Manslaughter adds another element to first-degree and second-degree murder — the-requirement that the defendant is acting under extreme emotional disturbance. Fincham, 2013 Ark. 204, 427 S.W.3d 643 (citing Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992)). A defendant is not entitled to an instruction, on extreme-emotional-disturbance manslaughter unless there is a factual basis showing that the defendant killed the victim “in the moment following ‘provocation in the form of physical fighting, a threat, or a brandished weapon.’” Bankston v. State, 361 Ark. 123, 129, 205 S.W.3d 138, 143 (2005) (quoting Kail v. State, 341 Ark. 89, 94, 14 S.W.3d 878, 880-81 (2000)).
The question here is whether there is a factual basis showing that Johnson caused Officer Ester’s death while under the influence of extreme emotional disturbance and that there was a reasonable excuse for his actions. Johnson testified that while he did stab Officer Ester, the thought of her dying never crossed his mind. He said that there are “many psychological things” to deal with in the ADC. He stated that he knew it was not right to attack Officer Ester with a knife and that he should not have stabbed her. He also stated that the ADC could put him on death row or give him three more life sentences, but he still [¿would not change. There were times on the stand that Johnson said that he thought the trial ■ was a waste of time.
We find no factual basis to. show that Johnson killed Officer Ester in a moment following provocation. He argues that the provocation that caused him to kill Officer Ester was when she came to his barracks with Lieutenant Lane to confiscate his shoes. This “provocation” was not in the form of physical fighting, a threat, or a brandished weapon as described in Bankston, 361 Ark. at 129, 205 S.W.3d at 143. See also Rainey v. State, 310 Ark, 419, 837 S.W.2d 453 (1992); Whittier v. State, 84 Ark.App. 362, 141 S.W.3d 924 (2004).
Moreover, Johnson’s own testimony partially contradicted his argument that he was provoked. Specifically, he stated that he had retrieved the “shank” from one of his hiding places after Officer Ester had gone to get Lieutenant Lane. This was before they attempted to confiscate Johnson’s shoes. His argument that prison is stressful and that a reasonable person would do the same thing in his situation is not convincing. Johnson has not shown any rational basis to warrant an instruction of manslaughter; therefore, the circuit court did not abuse its discretion in denying Johnson’s proffered jury -instruction.
II. Disclosure of Information
For his second point on. appeal, Johnson argues that the circuit court erred by denying him access to evidence regarding general violence in the East Arkansas Regional Unit. At the pretrial hearing on this issue, his counsel argued that the evidence is relevant to show that the East Arkansas Regional Unit was an “out of control hell-hole,” which demonstrates the type [(¡of environment that Johnson was exposed to at the time of the stabbing. Johnson argues that the information was discoverable under Arkansas Rules of Criminal Procedure 17.3 and 17.4.
Rule 17.3 states as follows:
(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.
(b) If the prosecuting attorney’s efforts are unsuccessful, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel where the material or other governmental personnel are subject to the jurisdiction of the court.
Rule 17.4 involves discretionary disclosures:
(a) The court in its discretion may require disclosure to defense counsel of other relevant material and information upon a showing of materiality to the preparation of the defense.
(b) The court may deny disclosure authorized by this Article if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, resulting from such disclosure, and that the risk outweighs any usefulness of the disclosure to defense counsel.
Rule 17.4(a) provides the court with discretion to require the disclosure of material once the defendant shows that the material is relevant to the preparation of the defense. Johnson relies on the holdings of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), to support his argument that the information he requested was relevant and material to the preparation of his defense.
The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect |7of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Lockett, 438 U.S. 586, 98 S.Ct. 2954. “[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. at 604, 98 S.Ct. 2954 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). The focus of mitigating circumstances is on the defendant and on the crime. Id. Nothing limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense. Id. at 605 n. 12, 98 S.Ct. 2954. Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering “any relevant mitigating evidence.” Skipper, 476 U.S. at 4, 106 S.Ct. 1669 (quoting Eddings, 455 U.S. at 114, 102 S.Ct. 869).
In Lockett, the United States Supreme Court reversed a death sentence because the Ohio statute at issue generally precluded consideration of the defendant’s age and his minor role in the offense. In Skipper, the United States Supreme Court held that proffered testimony regarding the defendant’s good behavior during the time he spent awaiting trial was relevant evidence in mitigation of punishment. In Eddings, the Court reversed a death sentence because the trial court had improperly precluded evidence of the defendant’s unhappy childhood as mitigating evidence. These cases found that the information requested could be used as mitigating evidence because it was relevant to the defendant’s character, record, or the offense.
| sIn this case, the circuit court granted the following disclosures of information requested by Johnson:
1. Copies of all disciplinary allegations made against any inmate by the [victim], Officer Barbara Ester, from January 1, 2007, to January 20, 2012, and all documents relating to the eventual dispositions thereof;
2. All reports surrounding the January 20, 2012 incident involving the death of Officer Ester;
3. Copies of the Institutional file, including office of personnel file (OPF), training file, and background file for [Officer Ester and] all other officers who may testify in this case; and
4. All documents or electronically stored information regarding complaints of whatever kind made against [Officer Ester or] any officer who is a witness in matters regarding the death of Officer Ester, and Officer Ester herself
The circuit court denied certain discovery requests because there was no showing that the evidence was relevant or material to Johnson or to the crime. The circuit court denied the following discovery requests:
1. Any reports, files, letters, memoran-da, complaints, disciplinary reports, or information related to security problems involving the care and protection of inmates at EARU from January 1, 2007, to January 20, 2012;
2. Any reports, files, letters, memoran-da, complaints, disciplinary reports, or information, in whatever form it may exist, related to allegations of criminal activity, false information, .official misconduct or negligence by any ADC personnel including guards, administrators, and the contractors at EARU from January 1, 2007, to January 20, 2012;
3. All After Action Reviews for all incidents of group disturbance, homicide, assault, bribery of a correctional officer, indictment of a correctional officer, smuggling of contraband or violation of civil rights at EARU for each year from January 1, 2007, to January 20, 2012;
|a4. Any reports, files, letters, memo-randa, complaints, disciplinary reports, or information in whatever form it may exist, related to attacks on any inmate or inmates by any other inmate or inmates at EARU from January 1, 2007, to January 20, 2012;
5. Any reports, files, letters, memoran-da, complaints, disciplinary reports, or information related to any changes made regarding security as it relates to the care and protection of inmates at EARU from January 1, 2007, to January 20, 2012; and
6. All information regarding the policies in effect at EARU on January 20, 2012, concerning the “planned response” of all employees at EARU on any emergency situation.
Johnson argues that this information that the circuit court denied was necessary to the preparation of his defense, including the penalty phase. As pointed out by the State in the hearing on the discovery issues, Johnson still has to “get over the first evidentiary barrier and that is relevance.” In response, counsel for Johnson stated that the evidence was relevant to show that the circumstances at the facility “were so distressing and violent and troubling in terms of the conditions in incarceration that ... it was necessary for Mr. Johnson to have a self-defense weapon.”
Unlike in Lockett, Skipper, and Ed-dings, the discovery requested by Johnson is unrelated to the defendant’s character, his record, or the circumstances of the offense. Rule 17.4 requires Johnson to show that the discovery requests were relevant and material to the preparation of his defense. At that point, it is in the circuit court’s discretion to require disclosure. The decision to require disclosure is to be exercised on a case-by-case basis, subject to limited review on appeal. See Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 495 (1983). We find that Johnson failed to meet the 1 ^requirements of Rule 17.4 and therefore hold that the circuit court did not abuse its discretion by denying disclosure.
III. Appellate Review Pursuant to Rule 4-3 (i) and Rule 10
The record in this case has been reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2015), and none has been found. In addition, we have conducted-a mandatory review of the record as required by Rule 10(b) of the Arkansas Rules of Appellate Procedure — Criminal (2015):
(i)pursuant to Rule 4-3(h) of the Rules of the Supreme Court and Ark.
Code Ann.- § 16-91-113(a), whether prejudicial error occurred;
(ii) whether the trial court failed in its obligation to bring to the jury’s attention a matter essential to its consideration of the death penalty;
(iii) whether the trial judge committed prejudicial error about which the • defense had no knowledge and therefore no opportunity to object;
(iv) whether the trial court failed in its obligation to intervene without objection to correct a serious error by admonition or declaring a mistrial;
(v) whether the trial court erred in failing to take notice of an evidentiary error that affected a substantial right of the defendant;
(vi) whether the evidence supports the jury’s finding of a statutory aggravating circumstance or circumstances; and
(vii) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. -
No reversible error was determined to exist under these factors.
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Tom Glaze, Justice.
The Hillsboro Manor Nursing Home in El Dorado was formerly owned by the Reynolds family. Mr. and Mrs. Reynolds were the sole stockholders in the nursing home, and their son, John Reynolds, became the administrator of the facility in 1979. Reynolds purchased the nursing home from his parents in 1991, and in 1992, he decided to expand the nursing home. However, he needed additional capital, so he approached Dr. James Sheppard, who expressed interest. The doctor, in turn, contacted three additional investors: his two brothers and his brother-in-law, appellees Andrew Sheppard, Courtney Sheppard, and Eugene Bilo.
The Sheppards and Bilo formed a corporation called HMNH, Inc., in order to acquire Hillsboro Manor. Onjanuary 7, 1993, HMNH, Inc. and Reynolds Health Care Services, Inc. (RHCS), a corporation in which John Reynolds was the sole shareholder, entered into an agreement to provide management services. Under that management agreement, RHCS agreed to manage the nursing home by hiring an administrator, developing budgets, developing policies and procedures, and providing the highest standards of patient care in accordance with all applicable laws. HMNH agreed to provide adequate working capital and oversight on budgets, policies, and personnel; in addition, HMNH agreed to pay RHCS six percent of gross revenues for management services. RHCS hired John Reynolds as administrator of the facility.
Also in January of 1993, HMNH and Hillsboro Manor Nursing Home, Inc. entered into a stock purchase agreement by which HMNH purchased all of the stock of Hillsboro Manor Nursing Home, Inc., for $1,804,000. On the same day, the parties entered into a merger agreement by which Hillsboro Manor Nursing Home, Inc. was merged into HMNH, Inc. Under the agreement, the shares of Hillsboro Manor and HMNH, Inc. converted into shares of HMNH, Inc. The Sheppards, Bilo, and Reynolds Health Care Services, Inc. each received a certificate for twenty shares of stock, accounting for each of the one hundred outstanding shares of stock in HMNH.
Although the arrangements operated smoothly for some years, by 1999, HMNH had become concerned with the way Reynolds was running the nursing home; in addition, Reynolds began to express his concerns that HMNH was failing to provide working capital. Also around September of 1999, the Department of Human Service’s Office of Long Term Care (OLTC) began an investigation, which was prompted by the death of a resident. OLTC conducted a survey at the nursing home on December 16, 1999, after which OLTC issued a report in which it found that the facility was not in substantial compliance with numerous federal laws and regulations.
In January of 2000, the federal Department of Health and Human Services (DHHS) terminated the nursing home’s Medicare/Medicaid agreement. In March of 2000, OLTC informed Reynolds that the agency intended to terminate Hillsboro Manor’s license to operate. Ultimately, DHHS imposed civil penalties of$126,300 for the violations offederal law that occurred between November 11, 1999, and May 18, 2000; those penalties were eventually reduced to $43,315.
At a March 2000 stockholders’ meeting at which the Sheppards and Bilo were present, but Reynolds was absent, the stockholders concluded that the management agreement between HMNH and RHCS had been breached and should be terminated. The shareholders held a meeting on September 14, 2000, but again, Reynolds was absent from the meeting. At the September meeting, the Sheppards each voted their combined sixty shares to elect a new board of directors; the new board consisted of the three Sheppards, Bilo, and Reynolds. At the directors’ meeting, held immediately thereafter, the five men were elected as officers of HMNH, although Reynolds abstained from the vote. Andrew Sheppard then made a motion that the board of directors authorize its attorney to institute a lawsuit in the name of HMNH against John Reynolds and RHCS to recover damages caused by RHCS’s breach of the management contract. The Sheppards and Bilo voted to adopt the resolution.
On January 19, 2001, HMNH filed suit against RHCS and Reynolds, alleging that RHCS had breached the management contract. Reynolds and RHCS answered and filed a counterclaim, contending that HMNH had failed to pay RHCS the agreed-upon management fee and had failed to maintain a sufficient amount of operating capital. The matter eventually went to a bench trial in Union County Circuit Court, and the circuit court entered an order finding RHCS in material breach of the management agreement. The trial court awarded HMNH damages in the following amounts: $43,315, a result of the civil penalties imposed by DHHS; $80,698, the lost revenue from the termination of Medicare/Medicaid agreements; and $168,000, or half of the lost revenue occasioned by the bad publicity surrounding the government surveys and lawsuits. However, the court also found that HMNH had breached its agreement to pay a management fee, and awarded RHCS $123,648.50. Thus, RHCS’s damages due to HMNH were reduced to $168,365.
On appeal, RHCS raises two points for reversal. It argues that the trial court erred in 1) refusing to enforce the parties’ voting agreement, and 2) awarding consequential damages to HMNH.
To address RHCS’s first issue requires this court to determine the applicability of Ark. Code Ann. § 4-27-731 (Supp. 2001). The question of the correct interpretation and application of an Arkansas statute is a question of law, which this court decides de novo. See Cooper Realty Investments, Inc. v. Arkansas Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003); Wal-Mart Stores, Inc. v. P. O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002).
Ark. Code Ann. § 4-27-731, a statute that has not previously been interpreted by this court, provides as follows:
(a) Two (2) or more shareholders may provide for the manner in which they will vote their shares by signing an agreement for that purpose. A voting agreement created under this section is not subject to the provisions of § 4-27-730.
(b) A voting agreement created under this section is specifically enforceable.
This statute was adopted as part of Act 958 of 1987 by the General Assembly as part of the Arkansas Business Corporation Act, and the language used therein was taken from the Model Business Corporation Act. The “Historical Background” information that accompanies the Model Act provides the following discussion:
A voting agreement (sometimes called a pooling agreement) is an agreement among shareholders relating to the voting of shares; it is primarily used as a means to effect a specific allocation of representation on the board of directors of a closely held corporation. It differs fundamentally from a voting trust, which involves a transfer of the legal title of shares to the trustees and a change in the record ownership of the shares.
Model Bus. Corp. Act § 7.31 (Supp. 1996).
American Jurisprudence discusses voting agreements, in relevant part, as follows:
Voting, or, as they are sometimes called, pooling agreements among stockholders are characteristically contracts designed to combine votes with a view to concerted action for a common object, and which control the votes of one or more of the parties by limiting their voting rights or conferring them upon others____
A voting agreement is also distinguished from an irrevocable proxy in that it does not necessarily result in the creation of an agency relationship, and need not involve the use of a proxy to effectuate it. However, the fine of demarcation is not always clear, and some voting agreements have been treated as irrevocable proxies.
18A Am. Jur. 2d Corporations § 944 (2004). See also 18 C.J.S. Corporations § 379 (1990).
In a broad sense, the term “shareholders’ agreement” refers to any agreement among two or more shareholders regarding their conduct in relation to the corporation whose shares they own. See Blount v. Taft, 295 N.C. 472, 480-81, 246 S.W.2d 763, 769 (1978). Such agreements are generally utilized in closely held corporations, and they may be used to guarantee to a minority shareholder “such things as restrictions on the transfer of stock; a veto power over hiring and decisions concerning salaries, corporate policies or distribution of earnings; or procedures for resolving disputes or making fundamental changes in the corporate charter.” Blount, 295 N.C. at 482, 246 S.E.2d at 770. See also Weil v. Beresth, 154 Conn. 12, 220 A.2d 456 (1966).
Shareholder or voting agreements differ from proxies in that a proxy is simply an “authority given by the holder of the stock who has the right to vote it to another to exercise the holder’s voting rights.” 18A Am. Jur. 2d Corporations § 902; see also Black’s Law Dictionary 1263 (8th ed. 2004) (proxy defined as “[o]ne who is authorized to act as a substitute for another; esp., in corporate law, a person who is authorized to vote another’s stock shares”). Thus, a proxy differs from a voting agreement in that the former gives another person the authority to vote one’s shares, while the latter purports to direct how the other person is to vote.
RHCS argues that it entered into a voting agreement with the Sheppards and Bilo in 1993 when they signed a document titled “Option to Purchase Stock”; in particular, RHCS points to the following language in support of its contention that a voting agreement was created:
[HMNH] shall grant to [RHCS] a proxy to vote one-half of the issued and outstanding shares of stock of HMNH, Inc. pending the term of this option to purchase stock, which proxy shall be reduced to twenty-five percent of the issued and outstanding shares of stock of the corporation for a period of twenty years from the effective date of the Agreement to Provide Management Services to a Health Care Facility executed the 8th day of January, 1993, as set forth in paragraph IV thereof, by and between Reynolds Health Care Services, Inc., and HMNH, Inc., upon the exercise of this option and transfer to [RHCS] of the shares of stock subject to this option.
A subsequent agreement among the shareholders, dated September 19, 1996, provided that the Sheppards and Bilo “shall execute a proxy to Reynolds Health Care Services, Inc., appointing Reynolds Health Care Services, Inc. as [their] proxy to vote 7.5 shares of each of the said shareholder’s stock held in HMNH, Inc.” Those proxies were executed by each of the Sheppards and Bilo on October 21, 1996; the proxy agreements provided as follows:
I, the undersigned shareholder of HMNH, Inc., an Arkansas corporation, do hereby appoint Reynolds Health Care Services, Inc., an Arkansas corporation, my true and lawful attorney and agent, for me and in my name, place and stead to vote as my proxy 7.5 shares of stock held by me in HMNH, Inc. at any stockholders’ meetings to be held between the date of this proxy and 20 years from the effective date of the Agreement to Provide Management Services to a Health Care Facility dated January 7,1993, as set forth in Paragraph IV thereof, by and between Reynolds Health Care Services, Inc., and HMNH, Inc., and I authorize Reynolds Health Care Services, Inc. to act for me and in my name and stead as fully as I could act if I were personally present, giving to Reynolds Health Care Services, Inc., attorney and agent, full power of substitution.
The trial court found that these agreements were not voting agreements, but rather were revocable proxies. Under Ark. Code Ann. § 4-27-722 (Repl. 2001), proxies are revocable by a shareholder “unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest.” § 4-27-722(d). An appointment coupled with an interest includes the appointment of “a party to a voting agreement created under § 4-27-731.” § 4-27-722(d)(5). None of the proxy agreements stated conspicuously on its face that it was irrevocable; indeed, in its reply brief, RHCS abandons its argument that the proxies were irrevocable. Nonetheless, RHCS maintains that the proxies “were merely the means of implementing the parties’ foundational voting agreement,” by which the Sheppards and Bilo gave RHCS the right to vote fifty percent of their shares in HMNH for twenty years.
However, we conclude that the document that RHCS calls a “voting agreement” is nothing more than a revocable appointment of proxy. The plain language of the agreement says nothing about how the stock is to be voted; it merely gives RHCS the right to vote a percentage of the stock. Because the agreement does not “provide for the manner in which” the shares are to be voted, it is not a voting agreement; it is a proxy.
Further, the proxies assigned to RHCS were revocable. Thus, the Sheppards and Bilo were acting within their rights as shareholders when they voted to revoke their proxies at the September 2000 shareholders’ meeting. Accordingly, the trial court did not err when it concluded that the actions of the duly elected board of directors in voting to authorize the instant lawsuit were valid.
In its second point on appeal, RHCS argues that the trial court erred in awarding HMNH consequential damages for RHCS’s breach of contract. The trial court found that, due to RHCS’s breach of the management agreement, HMNH was entitled to damages from RHCS, as follows: 1) $43,315, the amount of the civil penalties imposed by DHHS’s Health Care Financing Administration for violations of federal law that occurred at the facility between November 11, 1999, and May 18, 2000; 2) $80,698, the amount of the revenue the facility lost due to the denial of Medicare and Medicaid payments for new admissions during the period of February 4, 2000, through May 18, 2000; and 3) $168,000, one-half of the revenue lost due to the reduction in the nursing home’s census as a result fo the bad publicity associated with the poor surveys and lawsuits that were filed against the facility. RHCS contended below, and now argues on appeal, that it never agreed, either expressly or tacitly, to pay any consequential damages that might result from any breach of the management agreement.
Consequential damages are those damages that do not flow directly and immediately from the breach, but only from some of the consequences or results of the breach. See Bank of America N.A. v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003); Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Lost profits are well recognized as a type of consequential damages. C.D. Smith Motor Co., supra; Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). In order to recover consequential damages in a breach of contract case, a plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility. C.D. Smith Motor Co., supra; Morrow v. Hot Springs First Nat’l Bank, 261 Ark. 568, 550 S.W.2d 429 (1977); Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S.W. 1052 (1904).
Parties may expressly agree to be responsible for consequential damages, as this court noted in passing in C.D. Smith Motor Co. See C.D. Smith Motor Co., 353 Ark. at 241. However, in the absence of such an express contract to pay such special damages, the facts ahd circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. Id. (quoting Hooks Smelting, 72 Ark. at 286-87); see also Bankston v. Pulaski County School Dist., 281 Ark. 476, 480, 665 S.W.2d 859, 862 (1984).
Here, there was no express agreement that RHCS would be liable for any consequential damages that might stem from RHCS’s breach of the management agreement. HMNH attempts to argue that there was such an express agreement, contending that RHCS expressly agreed in its management contract with HMNH that it would be “held liable for its own acts and omissions.” However, HMNH has taken this language out of context. The portion quoted is taken from Paragraph XII, which deals with “Manager as Independent Contractor”; the full paragraph provides as follows:
Manager [RHCS] shall not be deemed to be an employee or agent of Owner [HMNH] in performing its duties hereunder. Rather, Manager shall be an independent contractor and as such shall be liable for its own acts and omissions and shall not in any way be liable for the acts and omissions of Owner, its agents, servants, or employees. Accordingly, each party shall indemnify and hold harmless the other from any liability which it may incur as a result of the negligence or willful misconduct of the other party.
This provision deals only with liability for negligence and willful conduct, not breach of contract. As such, RHCS did not expressly agree to be liable for consequential damages flowing from a breach of the management agreement.
The next question, then, is whether RHCS tacitly agreed to be liable for consequential damages. This court discussed the “tacit-agreement test” in detail in C.D. Smith Motor Co., supra, first noting that the test had been adopted in the 1904 Hooks Smelting case and further addressed in Morrow v. First National Bank, supra. Under that two-prong test, the plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff; it must also appear that the defendant at least tacitly agreed to assume responsibility. Morrow, 261 Ark. at 570. In discussing the rationale of the tacit-agreement test, the Morrow court, as well as the C.D. Smith Motor Co. court, relied heavily on the Hooks Smelting decision, which held as follows:
It seems then that mere notice is not always sufficient to impose on the party who breaks a contract damages arising by reason of special circumstances[.]
[W]here the damages arise from special circumstances, and are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such a liability had it been called to his attention at the making of the contract unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there must not only be knowledge of the special circumstances, but such knowledge “must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it!’ In other words, where there is no express contract to pay such special damages, the facts and circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part. [Citations omitted.]
C.D. Smith Motor Co., 353 Ark. at 240-41 (quoting Hooks Smelting, 72 Ark. at 286-87 (emphasis added in C.D. Smith Motor Co.)).
The question of whether notice of any such special circumstances was given to the breaching party is a question of fact. C.D. Smith Motor Co., 353 Ark. at 243. This court has held that, in determining the reasonable contemplation of the parties, it is proper to consider the nature and purpose of the contract and the attending circumstances known to the parties at the time the contract was executed. See Miles v. American Ry. Express Co., 150 Ark. 114, 233 S.W. 930 (1921) (citingHooks Smelting, supra). Thus, we must look to the evidence before the trial court to determine if there were sufficient facts from which that court could have concluded that HMNH, at the time of executing the management agreement, made RHCS aware of any special circumstances that would render RHCS liable for consequential damages.
As previously discussed, the consequential damages in this case were awarded in three “categories”: 1) civil penalties; 2) revenue lost due to the denial of Medicare/Medicaid payments; and 3) lost revenue due to the reduction in census due to bad publicity. RHCS argues that in none of these categories was there any evidence that it tacitly agreed to being liable for potential penalties or lost profits, nor did HMNH ever “bring home” to RHCS the knowledge of special circumstances that would put RHCS on notice that it would be liable for such damages.
With regard to the civil penalties, RHCS points out that the parties’ course of dealing demonstrates that there was “substantial uncertainty” as to who would pay any penalties that might arise from a survey of the facility by OLTC. For instance, RHCS notes that, on at least one occasion, HMNH, Inc., rather than the then-administrator, paid a penalty assessed by OLTC. David Lewis, who became administrator of the facility after Reynolds was removed, testified that, although he took responsibility for problems that were discovered during surveys by OLTC, the administrator was not responsible for paying any fines for which the nursing home might be found liable. Lewis also noted that HMNH, as owner of the facility, paid the fines assessed as a result of a November 2000 survey. No other testimony was presented regarding whether the parties intended Reynolds or RHCS to be liable to HMNH in the event penalties were assessed against the nursing home as the result of an OLTC survey. As such, there was no evidence that HMNH ever put RHCS on notice that it would be liable for consequential damages in the form of civil penalties.
The next two “categories” of damages both involve losses of profits: first, from revenue lost due to the termination of the Medicare/Medicaid program; and second, from revenue lost due to bad publicity and the resulting decrease in patients at the facility. Lost profits are recognized as a type of consequential damages. See Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). In support of its contention that RHCS was properly held liable for the lost revenue, HMNH argues that the Sheppards and Bilo 1) relied on Reynolds’s representations that he had the knowledge and experience necessary to run a nursing home, and 2) made it clear that Reynolds would be responsible for the day-today operation of the facility. HMNH asserts that Reynolds knew that the Sheppards and Bilo had no experience in the nursing home industry; it further contends that the shareholders made their agreement with Reynolds conditional on Reynolds’s operation of the facility in accordance with all federal, state, and local laws, rules, and regulations. HMNH further asserts that, because RHCS and Reynolds knew that HMNH’s shareholders had no experience in the nursing home industry, RHCS agreed to such conditions and responsibilities and held itself out to have the expertise to manage the facility in accordance with the stockholders’ demands. HMNH concludes that this knowledge was “brought home” to Reynolds, as evidenced by his testimony that his responsibilities as administrator were to offer day-to-day operations of the facility and be primarily responsible for the financial performance of the facility.
RHCS agrees that the proof established 1) knowledge on the part of RHCS and Reynolds that they had more expertise in managing a nursing home than any of the other HMNH shareholders, and 2) knowledge that those shareholders were depending on RHCS and Reynolds to do their best in operating Hillsboro Manor. However, RHCS urges, more than mere knowledge is required; there must be some evidence establishing RHCS’s tacit agreement to be liable for any profits lost as a result of patient care or management problems.
C.D. Smith Motor Co., supra, is the only recent case in which this court found sufficient evidence to support a conclusion that the defendant had been put on notice that it would be liable for lost profits. There, C.D. Smith Motor Co., a used car dealership, had established a recourse-financing relationship over the years with Bank of America. In November of 1996, the Bank and Smith signed a “Recourse Chattel Paper and Security Agreement,” although the Bank reduced Smith’s recourse-financing limit; the bank eventually phased out its recourse-financing program, and, as a result, terminated Smith’s November 1996 agreement. Smith went out of business within a year, and sued the Bank for breach of its contract.
In holding that there was sufficient evidence that the Bank had tacitly agreed to be liable for any special damages arising from the breach of contract, this court noted that Smith testified that, when he signed the 1996 contract, he told the Bank’s vice president for commercial lending, Dwayne Johnson, “If you don’t honor that contract, I am going to hold the Bank responsible.” C.D. Smith Motor Co., 353 Ark. at 243. Moreover, the Bank’s president, David Moore, testified that he “believed Smith may have told Dwayne Johnson, upon signing the November 12, 1996, agreement, that Smith would look to the Bank for compensation if his business was destroyed.” Id.
This court concluded that, because the Bank had knowledge or notice of special circumstances which could cause special damages to follow if the contract were broken, the fact that the Bank accepted the contract under such circumstances constituted sufficient evidence to support a finding by the jury that the Bank did so knowing that, in the event of its failure to perform its contract, C.D. Smith would reasonably expect that the Bank should make good the loss incurred by reason of the special circumstances when such loss flowed naturally from the breach of contract. Id.
In the instant case, in sharp contrast to C.D. Smith Motor Co., there is no such evidence that Reynolds or RHCS was specifically made aware of any special circumstances that would cause it to be liable for consequential damages. There were no facts presented to the trial court from which it could reasonably conclude that RHCS tacitly agreed to accept the management agreement, knowing that it would have to pay for any lost profits that might result from patient care or management problems. This conclusion is reinforced by the fact that the management agreement specifically provided that Reynolds and RHCS did not guarantee that the operation of the facility would be profitable. As such, the trial court erred in awarding HMNH consequential damages.
In its next argument on appeal, RHCS further argues that, although the trial court determined that HMNH owed RHCS $123,648.50 in unpaid management fees, the court nonetheless erroneously denied RHCS’s request for prejudgment interest. Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Perkins v. Cedar Mountain Sewer Improvement District, 360 Ark. 50, 199 S.W.3d 667 (2004); Ozark Unlimited Resources Co-op., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998). Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that makes it possible to compute the amount without reliance on opinion or discretion. Ray & Sons Masonry v. United States Fidelity & Guaranty Co., 353 Ark. 201, 114 S.W.3d 189 (2003); Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997). This standard is met if a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter oflaw. TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688, 946 S.W.2d 930 (1997); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).
RHCS argues that it presented sufficient testimony to prove the amount of damages it suffered in the form of unpaid management fees. According to the management agreement, RHCS was entitled to retain as a monthly management fee six percent of the gross revenues generated each month by the facility; gross revenues was defined as “all revenues generated by the facility less any Medicare or Medicaid adjustments.” At trial, RHCS presented the testimony of its accountant, Carolyn Merritt, who testified that she prepared a balance sheet showing the management fees owed by HMNH to RHCS. Her calculations reflected that HMNH owed RHCS $123,648.50. Thus, RHCS argues, it proved that the precise amount it was owed was definitely ascertainable by mathematical computation from the moment HMNH incurred this obligation.
HMNH responds by pointing to Merritt’s testimony on cross-examination, wherein she stated that there was no figure on her analysis that represented gross revenue, according to the definition of that term in the management agreement. She then testified that the exhibit did not reflect any Medicare or Medicaid adjustments, and thus did not show the proper amount of money owed. However, RHCS notes, Merritt was subsequently recalled to testify later in the trial, and she then clarified that the deposits depicted in her exhibit did take into account the adjustments for Medicare and Medicaid, and that the exhibit actually reflected gross receipts, “net of Medicare and Medicaid adjustments.”
It is axiomatic that this court gives due deference to the trial court’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Carson v. Drew County, 354 Ark. 621, 128 S.W.3d 423 (2003). Here, the trial court clearly believed that Merritt’s figures were valid, as RHCS won damages for unpaid management fees based on her testimony. However, as noted above, where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. TB ofBlytheville, 328 Ark. at 697. The trial court’s refusal to award prejudgment interest was in error.
As a final point, we note that HMNH has asked this court to dismiss RHCS’s appeal on the grounds that RHCS has voluntarily satisfied the judgment against it. After the trial court entered its order denying the parties’ motions to amend findings of fact and conclusions of law on February 25, 2004, the circuit clerk issued a writ of execution to the Union County Sheriff on April 5, 2004, directing the sheriff to recover property from RHCS sufficient to satisfy the judgment. On April 13, 2004, the Union County Sheriff filed a certificate of levy indicating that he had levied on property belonging to RHCS; in addition, the sheriff filed a “certificate of officer making levy on shares of stock in a corporation,” which provided that the sheriff levied on twenty shares of HMNH stock registered in the name of RHCS. The Return of Execution was filed on May 14, 2004. A sheriff s sale was held on June 4, 2004, at which time the twenty shares of stock were sold to Eugene Bilo for $175,000. On July 2, 2004, the circuit court entered an order finding that the proceeds of the sale of the stock had been applied to the judgment, and that the judgment had been satisfied in full.
In its brief, HMNH argues that, because the judgment has been satisfied, this court should dismiss RHCS’s appeal. In doing to, HMNH relies on Lytle v. Citizens Bank of Batesville, 4 Ark. App. 291, 630 S.W.2d 546 (1982), in which the court of appeals wrote the following:
Some jurisdictions hold that the payment of a judgment under any circumstances bars the payer’s right to appeal. However, in the majority of jurisdictions, the effect of the payment of a judgment upon the right of appeal by the payer is determined by whether the payment was voluntary or involuntary. In other words, if the payment was voluntary, then the case is moot, but if the payment was involuntary, the appeal is not precluded. The question which often arises under this rule is what constitutes an involuntary payment of a judgment. For instance, in some jurisdictions the courts have held that a payment is involuntary if it is made under threat of execution or garnishment. There are other jurisdictions, however, which adhere to the rule that a payment is involuntary only if it is made after the issuance of an execution or garnishment. Another variation of this majority rule is a requirement that if, as a matter of right, the payer could have posted a supersedeas bond, he must show that he was unable to post such a bond, or his payment of the judgment is deemed voluntary. [Citations omitted.]
We adopt the majority rule as the better reasoned rule. Thus, if appellant’s payment was voluntary, then the case is moot, but if the payment was involuntary, this appeal is not precluded. In applying this rule to the facts at bar, we must determine whether the payment made by appellant was voluntary or involuntary. In doing so, we believe that one of the most important factors to be considered is whether appellant was able to post a supersedeas bond at the time he satisfied the judgment.
Lytle, 4 Ark. App. at 296-97. See also Sherman Waterproofing, Inc. v. Darragh Co., 81 Ark. App. 74, 98 S.W.3d 446 (2003); Hendrix v. Winter, 70 Ark. App. 229, 16 S.W.3d 272 (2000); Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755 (1995); DeHaven v. T & D Development, Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995).
However, none of the cases relied upon by HMNH involved a situation where the sheriff had obtained a writ of execution and levied on the appellant’s property. In Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003), the parties contested an oral contract for the sale of a parcel of land. The trial court found that specific performance of the contract was the appropriate remedy, and ordered the Wards to convey title to the property to Williams. The court entered a stay of the judgment pending the posting of a supersedeas bond. However, the Wards never posted a supersedeas bond, and the trial court entered an order vesting title to the disputed land in Williams. Ward, 354 Ark. at 175. The Wards appealed, and Williams advanced an argument that their appeal was moot, because the judgment had already been satisfied. This court rejected that argument, however, noting that it did “not believe that the absence of a supersedeas bond and the granting of the land to Williams as part and parcel to execution on a judgment nullifies an appeal from that underlying judgment.” Id. at 182.
Admittedly, RHCS did not post a supersedeas bond in this case. However, while the posting of a bond is “one of the most important factors to be considered” in determining whether a judgment has been satisfied voluntarily, the court must still consider as an additional factor the fact that the judgment was only satisfied as the result of the sherifFs levying a writ of execution on RHCS’s property. Given that the satisfaction of the judgment in this case was not a purely voluntary act on RHCS’s part, but was instead the result of a writ of execution, we decline to dismiss RHCS’s appeal.
RHCS does not argue on appeal that there was insufficient evidence to support the trial court’s findings that it breached its contract with HMNH.
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Per Curiam.
This litigation stems from the parties’ divorce rendered on December 23, 1998. From the record now before us, it appears the parties, Jennifer Linder and Deron Johnson, have been litigating custody, visitation, and child-support issues ever since their divorce. Deron complains that Jennifer has regularly violated his visitation rights, and those problems have increased since Jennifer re-married and moved to Cabot.
Commencing in January 2000, the court’s docket shows these two parties have been exchanging serious charges and counter-charges against each other by motions and petitions. The parties’ actions resulted in Deron’s requesting custody of the parties’ children — Keith and Sky, now ages 14 and 12 •— and in Jennifer’s seeking child-support arrearages from Deron. These issues and others were addressed in a six-day trial, which began on Monday, September 19, 2005, and ended on Saturday, September 24, 2005. The trial judge placed custody of the children with Deron and allowed him to pay his back-child support to purge himself of civil contempt. Furthermore, the judge found Jennifer in contempt of court and sentenced her to one year in the Cleburne County Detention Center. Jennifer was taken immediately to the detention center, where she is currently serving her sentence.
Subsequent to Jennifer’s initial incarceration, the trial judge filed an amended order in an attempt to reduce Jennifer’s sentence from one year to six months. In addition, the amended order included the following new language:
Plaintiff may petition the Court for release before six months if she can demonstrate that she will abide by the Court’s orders, that she recognizes that what she has done is wrong, and that she will undergo counseling or obtain some help for her actions.
Jennifer has filed a petition with our court for a writ of certiorari, contending the judge’s original order is illegal and has violated her constitutional rights. At this stage of the proceeding, we address only the merits of whether Jennifer is entitled to her requested writ. We hold she is.
First, we note that, before a record was filed with the clerk of this court, we declined to issue a temporary stay pending our decision on the merits of Jennifer’s petition for writ of certiorari. See Linder v. Weaver, 364 Ark. 55, 216 S.W.3d 130 (2005) (Glaze, J. dissenting) and Linder v. Timothy W. Weaver, 364 Ark. 267, 216 S.W.3d 130 (2005) (Glaze, Corbin and Imber, JJ. dissenting). Following the lodging of a record, we now grant Jennifer’s petition for the reasons set out below.
We initially reject Deron’s and the trial judge’s contention that Jennifer is in civil contempt, not criminal contempt, and that she is therefore not entitled to a writ of certiorari. They are wrong; certiorari is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994) (emphasis added). This court more recently announced the following rule:
Certiorari proceedings are governed by the normal appellate rules unless the normal appellate review process would be useless, such as when the contemnor has to remain in jail during the course of the appeal.
Ivy v. Keith, 351 Ark. 269, 280, 92 S.W.3d 671, 678 (2002).
In this case, it is clear Jennifer had no available remedy by appeal when she was found in contempt and promptly placed in jail. No record was immediately available for her to lodge an appeal. As a result, the remedy of direct appeal would be useless because the contemnor would continue to be incarcerated. See Ivy v. Keith, supra. In other words, Jennifer has correctly challenged the judge’s unlawful sentence by her request for a writ of certiorari.
Second, we address the State’s contention that Jennifer was not entitled to a jury trial because the trial judge’s amended order reduced her sentence to six months. The State’s argument must fail because the trial judge lacked the authority to amend his original order. Arkansas Code Annotated § 16-90-103 (1997) provides as follows:
All sentences made, rendered, or pronounced by any of the courts of the state against anyone without actual or constructive notice, and all proceedings had under such sentences, shall be absolutely null and void.
(Emphasis added.)
Here, the trial judge did not notify either party before amending his original order and imposing a six-month sentence on Jennifer. As a result, according to section 16-90-103, the amended order is null and void.
This leaves the sole issue of whether the original order is constitutional. The trial judge’s original order held Jennifer in criminal contempt by punishing her with a year in jail for her
alleged failure to follow court orders. Our court in Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001), held the following:
[T]he better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded, [citation ommitted] Stated in other words, under Arkansas law there is no right to a jury trial in a prosecution for criminal contempt unless the sentence actually imposed upon the contemnor is greater than six months, a sentence greater than six months is authorized by statute, or the trial court announces prior to trial that it is contemplating a sentence greater than six months in the particular case. Under any of these circumstances, the offense can no longer be considered “petty” because the contemplated sentence exceeds six months’ imprisonment. See Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997).
The State argues that Jennifer has waived her right to a jury trial by not requesting one prior to the contempt proceeding. The State’s argument fails because Jennifer was never put on proper notice — as set out in Etoch — that she was entitled to a jury trial. Under the circumstances, it was completely unreasonable to expect Jennifer to request a jury trial because the trial judge never “announced that [he] was contemplating a sentence greater than six months.” See Etoch v. State, supra. Furthermore, we held in Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), that the right to a jury trial shall not be violated unless the right is waived in the manner provided by law. See also Ark. R. Crim. P. 31.2 and 31.3 (2005).
We grant Jennifer’s petition for writ of certiorari and direct that Jennifer be released from the detention center, so she can proceed consistent with this opinion.
Glaze, J., concurs.
The merits of the custody, visitation, and other related matters decided at the six-day trial can be addressed and decided on appeal.
Under the facts and circumstances of this case, it would appear that the appointment of an attorney ad litem to represent the children’s interest might be a benefit to all involved in this ongoing controversy. Kimmons v. Kimmons, 1 Ark.App. 63, 613 S.W.2d 110 (1981); Ark. Code Ann. § 9 — 13—101(d)(1) (2005) (attorney ad litem program to represent children in custody litigation established); Act 2096 of 2005 (attorney ad litem program funded). | [
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Jim Hannah, Justice.
Ronald J. White and Robert White appeal a judgment of the Washington County Circuit Court that the manufactured home placed on a lot in the Joy J. Acres subdivision violates a protective covenant that prohibits use of a trailer as a residence. The Whites also appeal an injunction that the home be removed from the lot. Appellees Jerry McGowen, Marcia McGowen, Terry Wallace, Sheila Wallace, Corby Bradt, Cyndi Bradt, Roger Parette, Leigh Parette, Walter Pope, and Dorothy Hope argue that the manufactured home is a trailer prohibited under the Bill of Assurances and Protective Covenants. We find no error and affirm. This case was certified to us by the court of appeals because it presents an issue of first impression. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l).
Facts
On March 5, 2004, Ronald J. White purchased lots 30, 31, and 32 in the Joy J. Acres subdivision. That same month, Ronald moved a 2280 square foot manufactured home on to lot 30. He purchased the lots and placed the manufactured home with the intent of selling the land and home to his brother Robert in what Ronald characterized as a “complete mortgage package.” Improvements were made to the home, including a carport, deck, and brick work. After the home was delivered, but before it was set on concrete blocks, appellee McGowen put a copy of the restrictive covenants on the door of the home and subsequently brought suit to have the manufactured home removed.
The Bill of Assurance and Protective Covenants on Joy J. Acres provides that the only “cabins” that may be “erected” are detached single-family dwellings. Further limitations on structures that may be “used” on any lot prohibits the use of a trailer as a residence. The circuit court agreed with appellees and issued an injunction that the home be removed within ninety days.
Standard of Review
Where a case is tried with the circuit court sitting as the trier of fact, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Farm Credit Midsouth, PCA v. Reece Contracting, Inc., 359 Ark. 267, 196 S.W.2d 488 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.
At issue in this case is interpretation of a protective or restrictive covenant on the use of land. Restrictions upon the use of land are not favored in the law. Forrest Constr. Co., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Faust v. Little Rock Sch. Dist., 224 Ark. 761, 276 S.W.2d 59 (1955). Further, a restrictive covenant will be strictly construed against limitations on the free use of land. Forrest, supra; Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970). All doubts are resolved in favor of the unfettered use of land. Forrest, supra; Casebeer, supra.
Any restriction on the use of land must be clearly apparent in the language of the asserted covenant. Forrest, supra; Harbour v. Northwest Land Co., Inc., 284 Ark. 286, 681 S.W.2d 384 (1984). Where the language of the restrictive covenant is clear and unambiguous, application of the restriction will be governed by our general rules of interpretation; that is, the intent of the parties governs as disclosed by the plain language of the restriction. Forrest, supra; Clifford Family LTD Liab. Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998) (quoting Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997)).
Circuit Court’s Decision
The circuit court found that Ronald had constructive notice of the restrictive covenant when he purchased the land. The circuit court further found that the restrictive covenant encompassed mobile and manufactured homes. The circuit court concluded that the terms of description changed over the years, but that the term “trailer” in the covenant applied to mobile homes and that a manufactured home was a mobile home. Accordingly, the circuit court issued a mandatory injunction that the house be removed within ninety days.
The Restrictive Covenants
The parties stipulated that the applicable restrictive covenants regarding the lots at issue are those contained in the Supplemental Bill of Assurance and Protective Covenants filed with the Washington County Circuit Clerk on October 25, 1967, and recorded in Book 715, page 4. Pursuant to paragraph 2, only detached single-family dwellings may be built on lots 1 through 37. Paragraph 2 also provides that no home of less than 600 square feet, or which costs less than $ 4000 may be built, and then further provides that “the intent and purposes of these covenants are to assure that all dwellings shall be of a quality of workmanship and material substantially the same or better quality than that which can be produced on the date these covenants are recorded.” Paragraph 8 prohibits the use of a trailer as a residence.
A restrictive covenant is a private agreement. Black’s Law Dictionary 373 (8th ed. 2004). See, e.g., Hutchens v. Bella Vista Village Prop. Owners’ Ass’n, 82 Ark. App. 28, 110 S.W.3d 325 (2003). The intent of the parties governs. Clifford Family, supra. Considering the restrictive covenants as a whole, what is clearly apparent in the text of the covenants is that they are intended to maintain the quality of the subdivision by regulating the minimum size of a house and the quality of materials used in construction, as well as construction methods. The intent is to assure that all residences will be similar detached, permanent single-family dwellings. Obviously the quality of the housing affects value and marketability. The question is how a manufactured home fits into the scheme set out in the restrictive covenants.
Manufactured Homes
This court must decide whether a prohibition against placement of a manufactured home is apparent in the language of the asserted covenant. The covenant prohibits “trailers.” As Ronald testified, the term “house trailer” ceased to be used in the industry, and gave way to “mobile home,” which in turn later gave way to “manufactured home.” In Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. Ct. App. 1987), a case holding that a prohibition against house trailers also prohibited manufactured homes, the court stated that the record in that case showed that the term “house trailer” acquired undesirable connotation, and that in the late 1960s the industry began to use the term mobile home instead, and that later in the 1970s when “mobile home” likewise began to take on an undesirable connotation, the industry began using the term “manufactured homes.” Wilmoth, 734 S.W.2d at 658. The term “manufactured home” was not in use in the industry in 1967 when the subject Bill of Assurance and Protective Covenants were drafted and filed. Further in Wilmoth, supra, the court stated that “[t]he words used in the restrictive covenant must be given the meaning which they commonly held as of the date the covenant was written, and not as of some subsequent date.” Wilmoth, 734 S.W.2d at 658. The task is to determine the intent of the framers of the restrictive covenants. Id. Looking to a dictionary of the period, we find that a “trailer” is, among other things, a vehicle designed to serve as a “dwelling or business.” Webster’s Third New International Dictionary 2424 (1968). In the present case, the manufactured home was transported on wheels to the site in two parts. A vehicle at the time the covenants were drafted was defined as, among other things, a “conveyance.” Id. at 2538. There is no question that the manufactured home was built with wheels as a conveyance and hauled to the site rather than being built there. Once conveyed to the site, the wheels, axles, springs, tongue, and hitch were removed, and substantial modifications were made such as the addition of a porch, a carport, and brick skirting. In Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992), this court considered whether a manufactured home was a prohibited mobile home, holding that it was, and rejected an argument that removal of the wheels and placement of a rock skirting altered its status. We agree that the removal of the wheels, tongue, and other vehicle equipment in this case did not alter the status of the manufactured home. Nor did the addition of the carport or other structures alter the manufactured home’s status. Any structure added is simply part of the mobile or manufactured home. Gem Estates Mobile Home Village Ass’n Inc. v. Bluhm, 885 So. 2d 435 (Fla. Dist. Ct. App. 2004).
The manufactured home in this case was built off-site and transported to Joy J. Acres in two pieces by truck. It sits upon stacked concrete blocks characterized as “piers.” There is no mortar between the blocks. The home is anchored to concrete poured in the soil beneath the home, but it has no perimeter footing as in an on-site built home. The home does not sit on footings. Steel beams run the length of the home and serve as a chassis for over-the-road transport. While the beams serve as support for the floor, if that had been their only purpose, the beams would not have been placed so as to form a chassis to make the home into a vehicle. The circuit court concluded that “the term ‘trailer, trailer house, mobile home, manufactured home’ apply to what we knew in the 60s as trailers and what is now being called mobile homes and manufactured homes.”
Other courts have held that a manufactured home is a prohibited “trailer” or “mobile home.” The covenant uses the term “trailer,” and on that basis alone this case might be affirmed; however, what is apparent in the language of the Bill of Assurances and Protective Covenants is that the framers intended to assure buyers and residents that any homes built would be similar in construction and quality to their homes. A manufactured home does not fit this requirement and is prohibited by the use of the plain and unambiguous term “trailer.” We affirm the circuit court’s judgment that the manufactured home violates the covenants.
Abuse of Discretion In Ordering Removal
The Whites assert that the circuit court abused its discretion in ordering removal of the house when paragraph 12 of the covenants only provided for prevention of the violation or damages afterward. However, paragraph 12 also provides that an action may be filed in law or equity against the person violating or attempting to violate the covenants. Further, paragraph 12 allows prevention, damages, as well as “other penalties for such violation.” The circuit court’s actions are contemplated by paragraph 12. There is no merit to the argument the circuit court could not order the home removed.
Affirmed.
See, e.g, Fox Farm Landowners’ Ass’n v. Kreisch, 285 Mont. 264, 947 P. 2d 79 (1997) (manufactured home is a mobile home prohibited by prohibition against mobile homes and trailers); Barber v. Dixon, 62 N.C.App. 455, 203 S.E.2d 915 (1983) (manufactured home is a prohibited trailer); Valley Motor, Inc. v. Almberg, 106 Nev. 338, 792 P.2d 1131 (1990) (manu factured home prohibited as trailer); Heape v. Broxton, 293 S.C. 343, 360 S.E.2d 157 (1987) (manufactured home is prohibited mobile home); Farnam v. Evans, 306 N.W.2d 228 (S.D. 1981) (manufactured home is a prohibited mobile home); Hicks v. Cox, 978 S.W.2d 544 (Tenn. Ct.App. 1998) (manufactured home is prohibited trailer); Beacon Hill Homeowners’ Ass’n v. Palmer Props., Inc., 911 S.W.2d 736 (Tenn. Ct.App. 1995) (trailer means trailer used as a residence, affirming a decision of lower court that manufactured home is a prohibited trailer); Albert v. Orwige, 731 S.W.2d 63 (Tenn. Ct. App. 1987) (manufactured home is prohibited mobile home); Pebble Beach Prop Owners’ Ass’n v. Sherer, 2 S.W.3d 283 (Tex. Ct.App. 1999) (manufactured home is prohibited mobile home); Milmouth v. Wilcox, 734 S.W.2d 656 (Tex. Ct.App. 1987) (manufactured home is a prohibited mobile home). | [
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Per Curiam.
Picky Wallace appeals from an opinion rendered by the Workers’ Compensation Commission on September 4, 2003. However, in violation of Ark. Sup. Ct. R. 4-2(a)(8), the notice of appeal is not included in the Addendum. Pursuant to Ark. Sup. Ct. R. 4-2(b)(3), this court finds that the Addendum is deficient, and the appellant is granted fifteen days from the date of the entry of this order within which to file an amended Addendum. It is a practical impossibility for seven justices to examine a single transcript filed with this court. Villines v. Harris, 361 Ark. 111, 204 S.W.3d 520 (2005). Further, this court may affirm the judgment under Ark. Sup. Ct. R. 4-2(b)(3) if an amended Addendum is not filed within the fifteen days. | [
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Per Curiam.
Sandra Trotter Phillips, a full-time, state-salaried public defender for the Eleventh Judicial District, was appointed by the trial court to represent appellant, Rikko Smith, an indigent defendant. An appeal was filed, and a request for the transcribed record has been lodged in this court. This court denied the motion to be relieved that was submitted on December 8, 2005.
Ms. Phillips now moves again to withdraw as counsel on appeal based upon Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), which held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal. Since Rushing, the General Assembly had passed legislation providing that only those full-time, state-salaried public defenders who do not have state-funded secretaries may seek compensation for their work on appeal. See Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2003).
Ms. Trotter states in her motion and affidavit that she is provided with a full-time, state-funded secretary who maintains her office. We grant her motion to withdraw.
Mr. Chad Green will be substituted as counsel for appellant in this matter. The Clerk will establish a new briefing schedule.
A motion for extension of time was also filed. The motion is granted and the time is extended thirty days from the date of this order.
It is so ordered. | [
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Robert L. Brown, Justice.
Movant Jerome Allen Bargo moves to have his appeal reinstated following this court’s dismissal of his appeal in 1989. We deny the motion.
The facts are these. On March 18, 1988, Bargo was convicted of attempted capital murder, burglary, and theft of property, and was sentenced as a habitual criminal to sixty years’ imprisonment, forty years’ imprisonment, and forty years’ imprisonment respectively, to run consecutively. He was also fined a total of $45,000. A notice of appeal was filed on March 29, 1988.
Bargo escaped from custody in May 1988, and fled this jurisdiction. The record was lodged with this court on October 5, 1988, despite the escape. On December 1, 1988, the docket reflects that the appellant’s brief was served, and on December 20, 1988, the State filed a motion to dismiss the appeal and a motion to stay its brief time. On January 9, 1989, this court granted the State’s motion to dismiss the appeal of Bargo, who was still at large. On January 13, 1989, Bargo’s attorney tendered a response to the already-decided motion to dismiss, which this court deemed to be moot. Bargo’s attorney then filed a motion for reconsideration, which this court denied.
On April 14, 2005, Bargo filed his motion to reinstate his appeal. He asserts therein that he was apprehended in Ohio in 2003. He then asserts multiple arguments in support of his motion. He first claims that Arkansas has fashioned an automatic right of appeal in criminal cases and that this court has shied away from either adopting or creating a rule which mandates dismissal of an absconded criminal defendant’s appeal. He contends that despite the large temporal gap between the time his appeal was originally docketed and the present, his absence has had no materially prejudicial effect on the appellate process. For that reason, he claims that his appeal should not be forfeited. He urges that the record has presumably been preserved and that the same arguments raised on appeal remain viable.
He further contends that the fugitive-dismissal rule is inapplicable in cases where the once missing defendant has returned to the jurisdiction from which he originally absconded. He maintains that any ruling on appeal would not be ineffectual, because he stands ready to comply with any further orders of the court. In addition, he submits that because Arkansas has no standing statute or rule authorizing the dismissal of a fugitive criminal defendant’s appeal, the ultimate question his motion poses is soundly within the court’s discretion and dependent on the inherent power of the court.
Thirdly, Bargo maintains that for the appellate system to punish him for his escape by dismissing his appeal is inapposite to both law and logic. He contends that were this court to prohibit his appeal, it would be tantamount to imposing a second punishment for his escape, which already has criminal sanctions of its own. He further argues that were this court to deny his motion on the basis that he intentionally forfeited his right to appeal by escaping, it would be ascribing a level of understanding with respect to the judicial process to a man wholly unaware of the appellate consequences of his decisions.
Finally, Bargo contends that because Arkansas has created an appellate court system which serves an integral role in the final adjudication of a defendant’s rights, the procedures used by this state must accord with constitutional demands. He states that by dismissing his appeal, this court acted in derogation of his due-process rights. He contends that while he was provided the right to a jury trial before being sentenced to confinement, this court failed to present him with an opportunity to contest the dismissal of his appeal before summarily dismissing it. For that reason, he claims that this court violated his due-process rights.
Though this court has not considered the fugitive-dismissal rule or reinstatement of a dismissed appeal, such as we have before us, we have reviewed a multitude of cases from other jurisdictions. Many states do as this court did in January 1989 and have dismissed appeals where the appellant has escaped or absconded. See, e.g., State v. Bell, 608 N.W.2d 232 (N.D. 2000); State v. Larrea, 130 Idaho 290, 939 P.2d 866 (Ct. App. 1997); Fletcher v. State, 696 So. 2d 794 (Fla. Dist. Ct. App. 1997); State v. Dyer, 551 N.W.2d 320 (Iowa 1996); State v. Patten, 134 N.H. 319, 591 A.2d 1329 (1991); Ex parte Subel, 541 So. 2d 15 (Ala. 1989); State v. Tuttle, 713 P.2d 703 (Utah 1985); Derrick v. State, 406 So. 2d 48 (Miss. 1981); State v. Mosley, 84 Wash. 2d 608, 528 P.2d 986 (1974); White v. State, 514 P.2d 814 (Alaska 1973); Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967); Crum v. Commonwealth, 23 S.W.2d 550 (Ky. Ct. App. 1930); People v. Clark, 201 Cal. 474, 259 P. 47 (1927); State v. Dempsey, 26 Mont. 504, 68 P. 1114 (1902); State v. Johnson, 44 S.C. 556, 21 S.E. 806 (1895).
Some jurisdictions also provide that an appellant may present himself to the jurisdiction within a certain period of time after absconding and have his appeal heard. See, e.g., State v. Mosley, supra; Crum v. Commonwealth, supra; State v. Dempsey, supra. Other jurisdictions have held that such a dismissal is subject to reinstatement on motion by the appellant upon a showing of good cause. See, e.g., Derrick v. State, supra; Mitchell v. State, 294 So. 2d 395 (Fla. Dist. Ct. App. 1974); White v. State, supra. Still other jurisdictions have held that reinstatement should be granted unless the State can show prejudice stemming from the defendant’s absence and the lapse of time since the escape. See, e.g., State v. Tuttle, supra.
Bargo argues that his absence and the resultant lapse of time .have created no negative effect on the appeals process. We disagree. In Allen v. Georgia, 166 U.S. 138 (1897), the United States Supreme Court affirmed the Georgia Supreme Court’s dismissal of Allen’s writ of error against the Georgia court for dismissing his case because he had escaped. The Court found that “[i]t is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ than that the latter should dictate the terms upon which he will consent to surrender himself to its custody.” 166 U.S. at 141. That expresses this court’s reasoning exactly. Here, this court’s docket sheet reflects that not only had the record been lodged with this court’s clerk, but Bargo’s brief had been filed as well. Thus, the appellate process was well underway.
Bargo claims that his situation is similar to that in Marquez v. State, 795 S.W.2d 346 (Tex. Ct. App. 1990), but he is mistaken. In Marquez, the appellate court held that no appeal was pending at the time of Marquez’s escape due to the fact that the record was filed after he had been returned to custody. Bargo admits in his statement of the case that he absconded from the detention center in Russellville in May 1988. While he did escape prior to the lodging of the record, the record was lodged and his brief was filed while he was still an escapee. As a consequence, his escape did impact the appellate process which was already in motion. In addition, we agree with the State that Bargo’s prolonged absence is also detrimental to the appellate process due to the lack of finality.
Bargo argues that the rationale behind the fugitive-dismissal rule is no longer applicable to him, now that he is back in custody. Again, we disagree. Bargo is correct that the Iowa Supreme Court declined to dismiss an appellant’s appeal because he had been returned to the jurisdiction. See State v. Byrd, 448 N.W.2d 29 (Iowa 1989). It did so, however, because: (1) “no element of futility frustrates the force of our judgment;” (2) Byrd’s recapture and incarceration for failure to appear would deter others similarly inclined to flee while an appeal was pending; and (3) there was an absence of any statute or rule authorizing dismissal on the ground urged. Id. at 30. The issue in Byrd was whether his appeal should be dismissed in the first instance. Here, Bargo’s appeal has already been dismissed, and his motion for reconsideration of that decision was denied. He now simply seeks to have his appeal reinstated after his extended absence. For that reason, Byrd is inapposite and does not serve as authority for Bargo’s argument.
More persuasive to this court is the Florida District Court of Appeals’ decision in Mitchell v. State, supra. In Mitchell, the appellant escaped after the briefs were filed and the date for oral arguments had been set. The State moved to dismiss the appeal, and an order of dismissal was entered. Almost a year after the dismissal, Mitchell filed a petition for reinstatement of his appeal. No cause for reinstatement was alleged except that he was now back in custody. The appeals court denied his petition, holding that “upon the appellant escaping, and thereby rendering himself not amenable to the orders of this Court, he is taken to have abandoned his appeal and that therefore our prior order dismissing the appeal was proper.” 294 So. 2d at 397. The court then observed:
If legal points brought to this Court by an appellant are to remain here, the appellant must remain with them. When he withdraws himself from the power of the Court to enforce its orders and mandates, he also withdraws the points which he had submitted to the court for adjudication. When appellant escaped the points raised by his appeal evaporated so far as this Court’s power to deal with them was concerned because the rights and obligations of the appellant no longer depended upon their answer, he having chosen his own independent remedy of escape. Not to have dismissed the appeal would have meant that this Court’s handling of its docket would have to have awaited the eventual action and pleasure of appellant who, having invoked the Court’s jurisdiction, thereafter withdrew himself from our means of asserting and enforcing it.
Id. The court then concluded that Mitchell had not presented good cause for reinstatement of his appeal and denied his motion. We agree with that reasoning.
Bargo also asserts that he should not be punished twice for his escape, that is, once under the statutes setting forth the criminal offense of escape and once by this court’s denial of reinstatement. He argues that a permanent dismissal of his appeal would be seen as an additional punishment. But this argument does not negate the fact that Bargo must comply with this court’s rules of appellate procedure. He failed to do so when he absconded and thwarted the appellate process.
This court has also held similarly to the holding of the Florida District Court of Appeals with respect to motions for reinstatement. While not in the context of a fugitive appellant, we held in Tolbert v. State, 331 Ark. 136, 959 S.W.2d 402 (1998), that a petitioner whose appeal had been dismissed waives his right to have the appeal reinstated by failing to move promptly for its reinstatement with good cause. In Tolbert, we denied Tolbert’s motion to reinstate his appeal, because he failed to demonstrate that there was a satisfactory reason for the delay of four months in filing the motion, and he failed to provide good cause for reinstating the appeal.
Similarly, in the instant case, Bargo has failed to show good cause to reinstate his appeal. While he makes several arguments in support of his motion, he fails to give any satisfactory reason for an almost seventeen-year delay in filing his motion. This court, through Arkansas Rule of Appellate Procedure - Criminal 1, has provided a right of appeal. Nonetheless, neither our constitution nor our statutes nor our court rules provides any right to reinstatement of an appeal once it has been dismissed. This court presumably dismissed Bargo’s appeal due to the fact that he had escaped and was no longer able to comply with this court’s orders. Such dismissals have been recognized by the Supreme Court as permissible. See Ortega-Rodriguez v. United States, 507 U.S. 234 (1993).
While Bargo further claims that a denial of his reinstatement motion will violate his due-process rights, his argument is without merit. As already referenced, in Allen v. Georgia, supra, in 1897, the United States Supreme Court upheld the Georgia Supreme Court’s refusal to reinstate Allen’s appeal after he was brought back into custody. The Court noted that “[t]o justify any interference upon our part, it is necessary to show that the course pursued has deprived, or will deprive, the plaintiff in error of his life, liberty, or property without due process of law.” 166 U.S. at 140. The Court further observed that “[b]y escaping from legal custody, he has, by the laws of most, if not all, of the states, committed a distinct criminal offense; and it seems but a light punishment for such offense to hold that he has thereby abandoned his right to prosecute a writ of error, sued out to review his conviction[.]” Id. at 141. It also held that “if the supreme court of a state has acted in consonance with the constitutional laws of a state and its own procedure, it could only be in very exceptional circumstances that this court would feel justified in saying that there had been a failure of due legal process.” Id. at 140. This court has so acted.
Because we hold that Bargo’s delay in prosecuting his appeal is prejudicial to the appellate process and because Bargo presents this court with no good cause for his delay in seeking to reinstate his appeal, we deny the motion. As was the case with the Florida District Court of Appeals in Mitchell v. State, supra, we hold that Bargo abandoned his appeal.
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Jim Gunter, Justice.
This appeal arises from an order of the Clay County Circuit Court, granting a petition filed by appellee, Arkansas Department of Human Services (DHS), to terminate the parental rights of appellant, Randel Lewis, the father of four minor children, in a dependent-neglect action. Appellant’s counsel, Val Price, has filed a motion to withdraw and a no-merit brief, pursuant to Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 4-3(j)(1). DHS did not file a brief in response. We affirm the circuit court’s termination of appellant’s parental rights.
In November 2000, DHS opened a protective-services case on appellant’s family, including appellant, his wife, Christina, and his three children, A.L., J.L., and A.L., due to environmental neglect and unsanitary living conditions. The three children were ages four and under. When a DHS family-services worker visited the home, scissors and straight pins were found on the floor. Dirty dishes, dirty laundry, and trash were found throughout the house. The nine-month-old child was still sleeping in a bassinet, and the family-services worker had never seen the nine-month-old infant out of the swing or a bassinet. A knife was also found in the yard.
On July 26, 2001, DHS filed a dependency-neglect action because of the deplorable conditions of appellant’s home. After a probable-cause hearing was held on August 31, 2001, the circuit court allowed the children to remain in appellant’s custody and ordered parenting classes and DHS services. On January 9, 2002, a review of the matter was held, and DHS sought custody of the children. The court appointed an attorney ad litem and allowed DHS to amend its petition to include appellant’s newborn child, C.L.
On February 7, 2002, an adjudication hearing was held. Lori Hoggard, a DHS family-services worker, testified that the home was much cleaner at that time. Angela Bradshaw, a speech therapist for the children, testified that she had seen a difference in appellant’s children after they were involved in therapy programs. Christina Lewis, appellant’s wife, testified that she tried to maintain the home, and that she did not need any further services from DHS. The circuit court ordered that the children remain in the parents’ custody, and DHS was ordered to continue its services. The circuit court ordered an adjudication of dependency-neglect with regard to the youngest child, C.L., for environmental neglect.
In July 2002, all of the children were removed from the home. A probable-cause hearing was held on July 26, 2002, on a petition alleging medical neglect. John Bradshaw, a family-service specialist with DHS, testified that he conducted three child-maltreatment investigations concerning appellant. The first investigation involved environmental neglect, and the second investigation was instigated because appellant was arrested for driving while intoxicated while the children were in the vehicle. The third investigation involved allegations of medical neglect because appellant and his wife did not administer antibiotics for appellant’s child, A.L. Mr. Bradshaw testified A.L. had a foot infection that resulted from a toothpick being inside the child’s foot for an extended period of six weeks. The antibiotic medication, IV pole, pump, and equipment were found unused in the home. Mr. Bradshaw stated that the children were placed in foster care on July 10, 2002. He further testified that appellant’s wife left the home to stay with friends in Paragould.
Ms. Hoggard testified that A.L. was seen by an emergency room doctor after he stepped on the toothpick. According to Ms. Hoggard’s testimony, Christina Lewis objected to surgery, but agreed to physical therapy. A.L. was never taken to physical therapy, and the infection in A.L.’s foot caused bone loss. Appellant was incarcerated at the time of the probable-cause hearing because of his DWI charge. The circuit court found that probable cause existed for the emergency order to remain in effect, and ordered that the children remain in foster care. The court ordered appellant and Christina Lewis to maintain a clean house, stable employment, and drug and alcohol treatment.
An adjudication hearing was held on September 12, 2002. DHS recommended that the children remain in foster care with the agency’s discretion to place the children with the paternal grandparents once the foster-care training was completed. The parties agreed to the adjudication. A review hearing was then held on February 24, 2003. DHS recommended that the children remain in foster care, that Christina begin parenting classes, and that appellant complete a multiple offender’s class. The circuit court ordered appellant to pay child support of $120.00 per week and Mrs. Lewis to pay $50.00 per week in child support. The goal was reunification with a parent.
On June 27, 2003, a permanency-planning hearing was held. The circuit court returned all four children to appellant’s care for a thirty-day trial placement. The protective-services case remained open, and DHS was relieved of providing services to Mrs. Lewis. A six-month review was held on February 20, 2004, and a hearing was held on a motion for change of custody filed by DHS. Appellant wished to relinquish responsibility of the children, and the four children were returned to the custody of DHS. The two oldest children were placed in foster care with the paternal grandfather.
Another permanency-planning hearing was conducted on May 18, 2004. The court ruled that Christina Lewis made no progress toward reunification with the children, as she voluntarily moved to Illinois with her boyfriend and a new child. The court heard testimony from appellant that he had remained sober, gained employment, and acquired a one-bedroom apartment. The circuit court authorized the case plan to be changed to permanent relative placement with termination of parental rights.
On July 20, 2004, a termination hearing was held. On that same day, Christina Lewis filed a consent to the termination of her parental rights, and that consent has not been withdrawn. After the termination hearing, the court terminated appellant’s parental rights. On September 10, 2004, the circuit court entered an order terminating appellant’s parental rights and granting DHS the power to consent to adoption. Appellant timely filed his notice of appeal on September 16, 2004. On April 26, 2005, appellant’s attorney filed a motion to be relieved as counsel and a no-merit brief.
This case was certified to us from the court of appeals, pursuant to Ark. Sup. Ct. R. l-2(b)(3), as this case presents a significant issue that needs clarification under the law. The certification issue is whether appellant’s counsel in a no-merit brief must address adverse rulings in all the hearings or solely in the termination hearing. In Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), we considered for the first time whether counsel representing a parent in a termination proceeding should be required to file a no-merit brief re quired by an attorney representing a criminal defendant in Linker-Flores, supra, where there appears to be no meritorious grounds for appeal. We held:
Fairness requires that the indigent parent is entitled to a review of the record for any appealable issues, and we will not eliminate this step from the process. . .. Because we conclude that the benefits from the Anders protections to the indigent parent’s right to counsel outweigh the additional time such procedures require, the Anders procedures shall apply in cases of indigent parent appeals from orders terminating parental rights. Thus, we hold that appointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal.
Id. at 141, 194 S.W.3d at 747 (emphasis added).
Our holding in Linker-Flores comports with Ark. Sup. Ct. R. 4-3(j)(l), which provides in pertinent part:
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and Addendum. The brief shall contain an argument section that consists of a fist of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.
Ark. Sup. Ct. R. 4-3(j)(l).
Thus, the first question is whether “a list of all rulings adverse to the defendant” under Rule 4 — 3(j)(1) includes a review of all the hearings in the record or the termination hearing. This question is answered by our appellate rules. Under Ark. R. App. P. - Civil 2(c)(3), when an order results from an adjudication or disposition hearing in a juvenile case where an out-of-home placement has been ordered, such an order is final and appealable. The rule provides in pertinent part:
(c) Appeals in juvenile cases shall be made in the same time and manner provided for appeals from circuit court.
* * *
(3) In juvenile cases where an out-of-home placement has been ordered, orders resulting from the hearings set below are final, appealable orders:
(A) adjudication and disposition hearings;
(B) review and permanency planning hearings if the court directs entry of a final judgment supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. K. Civ. P. 54(b); and
(C) termination of parental rights.
Ark. R. App. P. - Civ. 2(c)(3).
Under Ark. R. App. P. - Civ. 2(c)(3), any party would have been entitled to appeal prior final orders from the adjudication hearing, review, and permanency-planning hearings. In this case, the parents did not choose to appeal from those final, appealable orders. Thus, we are precluded from reviewing any adverse rulings from these portions of the record. Appellant’s attorney, Val Price, stated in his motion to withdraw “[t]hat after reading the entire record, [I have] the opinion that this is a no-merit appeal and [have] filed a no-merit abstract, addendum, and brief pursuant to the law.” The record is now before us, and for purposes of appellate review, we apply a de novo standard of review. Based upon Ark. R. App. P. — Civ. 2(c)(3), our review of the record for adverse rulings is limited to the termination hearing, and we have determined that there are no errors with respect to rulings on objections or motions prejudicial to the defendant.
The second question involves what constitutes a “conscientious review of the record” under Linker-Flores. For purposes of reviewing the sufficiency of the evidence in this case, we must examine evidence from all hearings and proceedings in the case, as the circuit court took judicial notice and incorporated by reference into the record all pleadings and testimony in the case that occurred before the termination-of-parental-rights hearings. See Ark. Code Ann. § 9-27-341 (d)(2). We now review the argument raised by appellant’s attorney in his motion to withdraw and a no-merit brief. Appellant’s attorney argues that there was clear and convincing evidence that appellant did not comply with the case plan or the orders of the circuit court.
Our standard of review in cases involving the termination of parental rights is well established. Arkansas Code Annotated section 9-27-341(b) (3) (Repl. 2002) requires an order terminating parental rights to be based upon clear and convincing evidence. Camarillo-Cox v. Arkansas Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Gregg v. Arkansas Dep’t of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997). Such cases are reviewed de novo on appeal. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). However, we do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
The issue is whether the circuit court erred in finding clear and convincing evidence supported the termination of appellant’s parental rights. Appellant’s parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341, which states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence (1) that termination is in the best interest of the juvenile after considering the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child caused by continuing contact with the parent, and (2) that termination is founded based on one or more of the grounds for termination listed in section 9-27-341 (b)(3)(B).
In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Jones v. Arkansas Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005). This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well- being of the child. Id. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Id.
In Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004), we affirmed the trial court’s termination of the parental rights of a mother where she had not been stable for a sufficient amount of time to indicate reunification was possible. We held that to give the mother more time to comply would only ignore the fact that she had consistently failed to comply with the court’s order. Id. In Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005), we affirmed a trial court’s termination although the mother had shown significant improvement and had eventually met nearly all of the case-plan requirements, because those improvements were not made until the “eleventh hour” of the case. “[E]vidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place.” Id. at 355, 201 S.W.3d at 401.
With this precedent in mind, we turn to the present case. At trial, the following evidence was presented. First, Linda Dixon, the district court clerk in Piggott, testified that appellant owed $1,565.00 in fines. Appellant was to make payments of $25.00 per week starting in August 2001, but as of the date of the termination hearing, he only made one payment of $25.00 and a $300.00 jail credit. Second, Ray Noel, a human-resources manager for ARI where appellant was employed, testified that appellant’s 2003 employment was terminated for attendance reasons, while his 2004 employment was terminated because appellant tested positive for marijuana. Third, Brad Bolar, the jail administrator at Greene County Sheriffs Office, testified that he had booked appellant on numerous occasions for public intoxication, revocation of probation, failure to appeal, nonpayment of fines, hot checks, second-degree criminal mischief, illegal parking, and possession of marijuana. Fourth, Lori Hoggard, a DHS case worker who began working on the case when appellant’s children were placed in foster care, testified that the children were removed from the home in July 2002 for medical and environmental neglect. They were returned to appellant in July 2003 after twelve months. Ms. Hoggard also testified that the children were removed again on February 20, 2004, when appellant was incarcerated for a DWI. She further testified that DHS provided wood for heating, food, transportation, cash assistance, worker visits, SSA services, cleaning services, parenting classes, visitation, case management referrals, and medical services. Ms. Hoggard stated that the children had been in care for a total of seventeen-and-one-half months, and she recommended that the termination of parental rights was in the best interest of the children. Additionally, Liz Fitzgibbons, a DHS adoption specialist, testified that the children were age-appropriate for adoption.
Appellant testified on his own behalf at the termination hearing. On direct examination, appellant testified that he knew DHS was concerned about his housing, employment, drug rehabilitation, child support, and visitation. He admitted that he had not paid any child support. He testified that he lived with his dad and his children before they were removed from his care on February 20, 2002. He further testified that he had a drinking problem and had tried to overdose before going into rehabilitation, but that he cannot go to Alcoholics Anonymous meetings. He further stated that he did not have a job, did not have any income at the time of the termination hearing, and did not have a driver’s license.
Based upon this evidence, the circuit court found the applicable grounds were that the children had been adjudicated dependent-neglected and continued out of the custody of the parent for twelve months; that despite meaningful effort by DHS, the father failed to remedy the condition that caused removal; that the father failed to rehabilitate the condition of the home within a reasonable amount of time; and that the father manifested an incapacity and indifference to remedy the conditions causing removal.
We agree with the circuit court’s ruling. Here, there was clear and convincing evidence to support the circuit court’s termination of appellant’s parental rights. The children were adjudicated dependent-neglected and were out of the home for approximately seventeen months. Appellant lacked stable housing and stable employment. Because appellant was not employed, he lacked the financial ability to provide the day-to-day needs of the children, and he failed to comply with court orders to provide child support. According to Ms. Hoggard’s testimony, appellant received an income-tax refund, but he did not pay any fines or child support with the money. She also testified that DHS asked appellant to leave his father’s home after he slapped A.L. in the face. Although appellant completed alcohol and drug inpatient treatment, as well as parenting classes and visitation, he repeatedly failed to comply with the circuit court’s orders. Thus, his parental rights must give way to the best interest of the child when he seriously failed to provide reasonable care for his minor children. See Jones, supra.
Following the standard we have set out for no-merit briefs in criminal cases, no-merit briefs in termination-of-parental-rights cases “shall include an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.” See Ark. Sup. Ct. R. 4-3(j). In this case, our review of the record reveals four rulings adverse to appellant in the termination hearing that were not abstracted or included in the argument section. Generally speaking, if a no-merit brief fails to address all the adverse rulings, we will send it back for rebriefing. Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Mitchell v. State, 327 Ark. 285, 938 S.W.2d 814 (1997). However, as this is our first occasion to address the specific procedures for a termination-of-parental-rights no-merit brief and as the adverse rulings were clearly not meritorious, we decline to order rebriefing so as to avoid any further delay in this case.
The first and second adverse rulings in the termination hearing involved the circuit court’s denial of appellant’s request to grant a continuance and the circuit court’s proceeding with the trial, notwithstanding that appellant was late to the termination hearing. The circuit court announced that appellant had notice of the hearing, and these adverse rulings were cured by appellant arriving late to the hearing.
The third and fourth adverse ruling involved admitting the testimony of Mr. Bolar concerning appellant’s criminal convictions and his time served. The circuit court denied appellant’s motion to strike the testimony, and the circuit court further overruled an objection to Mr. Bolar’s testimony. The circuit court ruled that the testimony “goes to weight rather than admissibility.” Here, the circuit court’s reliance on appellant’s prior convictions and sentences goes to the weight to be given Mr. Bolar’s testimony and not its admissibility. Mr. Bolar testified to his observations as a jail administrator. See Ark. R. Evid. 701. Thus, we conclude that the circuit court did not err in admitting this testimony.
Based upon the foregoing reasons, as well as our standard of review, we hold that the circuit court did not err in concluding that there was clear and convincing evidence to terminate appellant’s parental rights under Ark. Code Ann. § 9-27-341. Accordingly, we grant appellant’s attorney’s motion to withdraw, and we affirm the circuit court’s rulings.
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Per Curiam.
Randall Thomas McArty was convicted of first degree murder and sentenced to life imprisonment in the Arkansas Department of Correction. This court affirmed the judgment. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994). McArty filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied. In an unpublished opinion, this court affirmed that order. McArty v. State, CR 94-1010 (Ark. April 10, 1995). In April of 2005, McArty filed a motion to set aside judgment in the trial court, attempting to challenge the order denying postconviction relief on his Ark. R. Crim. P. 37.1 petition, once again, through Ark. R. Civ. P. 60. The motion was denied.
Petitioner McArty has now lodged a partial record in this court for the proceedings concerning the denial of his motion to set aside the judgment, and, in the petition for writ of certiorari now before us, requests that we bring up the record below so that he may proceed with an appeal of that order. Petitioner avers that the circuit court clerk has incorrectly refused to prepare the record for him without charge. Petitioner has also filed a motion to amend the petition, in order to show that he has now made a timely request for an extension of time in the circuit court. Whether or not the clerk has committed error, it is clear that petitioner could not, in either case, prevail on any appeal from the order. Because we dismiss the appeal, the petition for certiorari and the motion to amend are therefore moot.
This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam). In this case, petitioner’s motion was clearly without merit.
While petitioner sought to challenge the order denying postconviction relief, which is civil in nature, the challenge is ultimately to the judgment of conviction, and a criminal matter. This court has recognized that postconviction relief proceedings are civil in nature and applied the Rules of Appellate Procedure - Civil when necessary. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). However, we have never applied the Rules of Civil Procedure to postconviction relief proceedings. Id. In fact, we have specifically declined to apply Ark. R. Civ. P. 60 in criminal cases. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000), citing McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). Petitioner has cited no authority and provided no convincing argument as to why we should make an exception here, so as to allow application of a rule of civil procedure in postconviction relief proceedings. This court will not consider an argument that presents no citation to authority or convincing argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
We have acknowledged that the theory behind Rule 60 has been applied in those criminal cases where we recognized a court’s power to correct a judgment nunc pro tunc to make it speak the truth. Dawson v. State, 343 Ark. 683, 38 S.W.3d 319 (2001). We do not, however, apply Ark. R. Civ. P. 60 in criminal cases, including those involving a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Sanders, 352 Ark. at 24, 98 S.W.3d at 40.
Appeal dismissed; petition and motion moot. | [
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LARRY D. VAUGHT, Judge
| TAppellants Aramark and Sedgwick Claims Management Services, Inc. (CMS) appeal the decision of the Arkansas Workers’ Compensation Commission (the Commission) affirming and adopting the administrative law judge’s (ALJ) award of additional medical benefits, to appellee Jackie Stone’s for the treatment of his compensable shoulder injury. We affirm.
Stone begah working for Aramark in 2003 as a sales representative. In 2012, while hanging smocks on.a rack, he felt pain in his neck, his right arm, and the back of his shoulders. He reported the injury to his employer, and was seen by Dr. Dustin Pope, who prescribed pain medication and referred Stone to Dr. Mark Allard, an orthopedist. An MRI revealed degenerative damage but no torn muscles.
Stone told Dr. Allard that he could not lift - his right hand above shoulder level without severe pain and weakness. He stated that, although he had previously experienced |2muscular pain, he had never had joint pain in his right shoulder of the severity that he was now experiencing after the injury.
Dr. Allard found that' Stone suffered from preexisting osteoarthritis in his right shoulder, which he had exacerbated twice, including the 2012 on-the-job injury at Ar-amark. Dr. Allard prescribed physical therapy (which Stone said made the pain worse) and an injection (which temporarily reduced the pain). Dr. Allard recommended that if the injections did not successfully resolve his pain, Stone would need distal clavicle resection surgery.
Stone received a change of physician and was seen by Dr. Chris Arnold in January 2014. Dr. Arnold found that Stone’s injury was work related. Dr. Arnold also recommended that Stone undergo a distal clavicle resection.' Appellants denied Stone’s request for-the operation.
' On October 27, 2014, a'hearing was held before the ALJ regarding Stone’s right to additional medical treatment, specifically the clavicle resection. The ALJ found that Stone had proved by a preponderance of the evidence that he was entitled to , the additional treatment. The Commission- affirmed and -adopted the ALJ’s- decision; and appellants filed a timely appeal. - .
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and wé affirm if the decision is supported by substantial evidence. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 404, 269 S.W.3d 391, 394 (2007); Jones v. Xtreme Pizza, 97 3Ark.App. 206, 245 S.W.3d 670 (2006). Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Parker, 100 Ark. App. at 404, 269 S.W.3d at 394. If reasonable minds could reach the same decision as the Commission, we must affirm. Id., 269 S.W.3d at 394.
Appellants argue that there was not substantial evidence to support the finding that a clavicle resection was reasonable and necessary treatment for Stone’s compensable shoulder injury. Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) states that “[t]he employer shall promptly provide for an injured employee such medical [treatment] ... as may be reasonably necessary in connection with the injury received by the employee.” The employee must prove by a preponderance of the evidence that medical treatment is reasonable and necessary, Butler v. Lake Hamilton Sch. Dist., 2013 Ark. App. 703, at 7, 430 S.W.3d 831, 835. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission to determine. Id., 430 S.W.3d at 835.
Appellants contend that Stone had a preexisting arthritic condition, that the proposed surgery is meant to address the preexisting condition, and that Stone’s admittedly-compensable injury was merely a temporary exacerbation of the preexisting condition. However, we have previously affirmed an award of reasonably'necessary additional medical treatment to address a preexisting condition that became symptomatic due to a compensable injury. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881. We hold that the Commission’s decision to award Stone additional medical benefits in the form of distal clavicle resection surgery was supported by substantial evidence. Both Dr. Allard and Dr. Arnold expressed opinions that the resection was necessary to address Stone’s work-jrelated4 injury. Stone testified that he had no problem performing his work duties prior to the 2012 injury and that he had never before experienced similar pain. As the Commission correctly noted, Stone would not have required the surgery but for the compen-sable injury. While appellants contend that the injury was temporary, the evi-. dence included the opinions of two doctors who agreed that the surgery would be necessary to address the injury. Therefore, we affirm the Commission’s finding that Stone was entitled to additional medical benefits.
Affirmed.
Abramson and Gruber, JJ., agree. | [
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BRANDON J. HARRISON, Judge
h Ciera Robinson appeals the Conway County Circuit Court’s termination of her parental rights to her children D.D. and S.D. She argues that termination was not in her children’s best interest and that it does not fulfill the purpose of termination under Ark.Code Ann. § 9 — 27—341(a)(3) (Repl. 2015). We affirm.
I. Facts
The case began on 1 January 2014 when Robinson called the police to report that Bobby Ray Simmons, Jr., a celebrity, raped her in her sleep and was punishing her and other women. She also said, among other things, that she and Bobby Ray had a child together named Elijah but he was not born yet. She told the police that she had thought about ending her life. After police officers arrested Robinson for marijuana possession, the | ¡Arkansas Department of Human Services (DHS) took emergency custody of D.D. and S.D. because ■ the children lacked a caregiver. Robinson told the caseworkers that the children’s father, Montana Dean, lived in Ohio and that she had obtained a protection order against Dean for allegedly molesting D.D. and S.D.
The circuit court adjudicated the children dependent-neglected in February 2014. Robinson was not present for the adjudication hearing. Robinson was present for a May 2014 review hearing. In the May review order, the circuit court wrote: “The court agreed to change the goal today based upon the testimony presented and the fact that mom has not complied since the children were removed on 1/1.” The “concurrent plan of this case shall continue to be reunification. The goal is adoption or placement with a legal guardian/permanent custody.” The court noted that Robinson had not visited the children since February and also observed:
Ciera does not have an identification card. Ciera testified she is homeless and has been kicked 'out' of shelters because Nicki Manaj [sic] is trying to kill her. She was in a mental, hospital in Ohio. Admits she is bipolar and sees spirits.
The father, Montana Dean, is not part of the case and has no significant contacts with his children.
In October 2014 the court entered an order terminating DHS’s obligation to provide reunification services to Robinson. The court noted the testimony of the children’s father, Montana Dean, that “Ciera sees spirits and has sudden mood swings,” that they fought in the past, and that he was convicted of domestic abuse against her. According to Dean, Robinson left Ohio and did not contact him to tell him where the children were, and he recently found out the children were in DHS custody and came down for the hearing. The court wrote:
IsThe Court found specifically that there is little likelihood that services will result in reunification due to the mother’s'mental instability in continuing to believe that nationally-known entertainers are trying to get her and rape her and that she is off her medication' and believes that she does not need- any. She has been without stable housing for most of the case and 'has been discharged from multiple shelters and spent two months in jail. She has had district court criminal cases in three separate counties since the case' opened. The Court noted the therapist’s statement that when the children are permanently placed somewhere, they will need long-term, intensive care with structure and stability and the Court believes Ci-era cannot provide this. The Court also found that [the] children were subjected to aggravated circumstances due to abandonment. Ciera abandoned her children since the case has been opened for ten months and she has not visited her children since February and up until very recently, she made no attempts to reunify with them.
In short, the circuit court found that there was little likelihood that services would result in reunification and concluded that aggravated circumstances were present.
In a permanency-planning order entered the same day the court explained that:
mindful of the available permanency planning dispositions and accordance with the best interest, health and safety of the juveniles does hereby determine the goal of the case shall be: authorizing a plan to place custody of the juveniles with a parent, guardian, or custodian. The court finds the parent, guardian, or custodian, is complying with the established case plan and orders of the Court, making significant measurable progress toward achieving the goals established in the case plan, and diligently working towards reunification or placement in the home of the parent, guardian, or custodian. Placement of the juveniles in the home of the parent, guardian, or custodian shall occur within a time frame consistent with the juveniles’ developmental needs but no later than three (3) months from the date of the permanency planning hearing. The concurrent goal is adoption.
The Court finds the case plan, services and placement in therapeutic foster home does meet the special needs and best interest of the juveniles, with the juveniles’ health, safety and educational needs.
An ICPC home-study from Ohio was approved for Timothy and April Moore. Timothy is the uncle of Ciera. The court was very concerned about the family’s low income level and that the father has criminal history fourteen years ago. The Court is concerned that the Moore’s may not be financially able .,. to add two more children to their household due to their low income and since one of their own children is disabled and that takes a deep commitment from the [4family. The home study did not include any mention of what type of services that will be provided to the juveniles and the Dean children’s therapist stated they will need long-term services.
Montana Dean testified that he wants custody of the children but is not in a position to have custody of them. He lives with his mother in Toledo, Ohio, and makes $500.00 a week as an apprentice steel worker in Ohio. He said it may take two months to get stable housing. Montana has a criminal history.... The Court ordered ADHS to conduct a background check [on him].... The Court also stated that if the Moore family is being pursued for custody, then Timothy Moore needs to come to Arkansas and meet with the children to develop a relationship and to understand their long-term counseling needs.
A second permanency-planning order was entered in February 2015. The circuit court determined the “goal of the case shall be adoption. Mother has not followed the case plan. She recently attempted suicide and is not receiving any help with her mental health issues.” The court also explained:
The Father Montana Dean was not present at this hearing. His ICPC referral has been sent, but his criminal background checks have come back and he has extensive criminal convictions in his past.- Among others, since 2008 he has been convicted on Disorderly Conduct, Menacing, Domestic violence against a family member, Reckless violation of a temporary protection order, and Resisting arrest. The caseworker testified Mr. Dean has not remained in touch with her since the last hearing. He contacted the referred therapist one time, but has not followed up since. The caseworker further testified that based on these issues, the Department will not recommend placing the juveniles with their father.
In April 2015, DHS filed a petition for termination of parental rights against Robinson and Dean, alleging several statutory grounds for termination were present, that DHS was “seeking to clear the juveniles for adoption,” and that the children faced potential harm if custody was returned to their parents. The court held a termination hearing in July and August 2015; DHS abandoned its termination petition against Dean, but pursued the petition against Robinson.
|BThe circuit court entered an order terminating Robinson’s parental rights in September 2015. The court found, among other things, that the testimony of adoption specialist Monica Spencer was credible and that D.D. and S.D. “are highly adoptable.” It reasoned that termination was in the children’s best interest because the children had remained out of Robinson’s custody for seventeen months and that Robinson’s only contact with the juveniles was at a 27 April 2015 family-therapy session. In finding that clear and convincing evidence supported its decision to terminate Robinson’s parental rights, the court wrote that Robinson’s “refusal to acknowledge her mental illness, her refusal to take any prescribed medications, her arrest record, her continued bizarre claims and behaviors, and her suicide attempt during the case” showed that she was an unfit parent. The court explained that “although this is not the exclusive permanency planning option available, as the father’s parental rights are not being terminated ... the facts demonstrate how [D.D. and S.D.] would be at risk of potential harm if returned to the mother.”
Robinson has appealed the termination order “and all adverse rulings made therein.”
II. Discussion
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest and a statutory ground for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(A)-(B) (Repl. 2015). “Best interest” includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the juvenile to the parent. Donley v. Ark. Dep’t of Human Servs., 2014 Ark. App. 335, at 1, 2014 WL 2443031.
|fiWe review cases involving the termination of parental rights de novo. Griffin v. Ark Dep’t of Health & Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006). While we review the factual basis for terminating parental rights under a clearly erroneous standard, no deference is given to the circuit court’s decision with regard to errors of law. Id.
Arkansas Code Annotated section 9-27-341 is titled “Termination of Parental Rights.” Subsection (a)(3) states:
The intent of this section is to provide permanency in a juvenile’s life in all instances in which the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.
Our court has interpreted this statute to allow termination of an unfit parent’s rights when the children remain or return to the “family home” of a fit parent. See Ross v. Ark Dep’t of Human Servs., 2010 Ark. App. 660, 378 S.W.3d 253.
Other cases have interpreted “family home” narrowly. For example, in Donley, a mother argued that the circuit court should place her child permanently with her sister, who had custody of her child’s younger sibling, instead of the court terminating her parental rights. 2014 Ark. App. 335, 2014 WL 2443031. In other words, the circuit court had a less, drastic measure of relative placement that could still fulfill the legislative goal of permanency for the child. But we rejected this argument holding that the termination statute (Ark.Code Ann. § 9-27-341) contains no preferential consideration for relative placement and that the termination statute should not be reád “in conjunction with other statutory provisions of the juvenile code.” Id.
In Lively v. Arkansas Department of Human Services, we reversed a court’s order terminating a- father’s rights when the child remained in the mother’s custody and the case closed. There, we wrote that the circuit court considered that the father’s “drug use, mental instability, and criminal convictions posed a risk of harm to the children should they be. returned to his custody” but it “did not address whether termination (rather than a less-drastic alternative, such as a no-contact order or supervised visitation) was in the children’s best interest” given that the children benefited significantly from their father’s financial support. 2015 Ark. App. 131, at 8-9, 456 S.W.3d 383, 389.
In Crowley v. Arkansas Department of Human Services, we rejected a father’s argument that permanency could be achieved through a no-contact order instead - of terminating his parental rights when the children were placed permanently' with their mother. 2016 Ark. App. 66, 482 S.W.3d 360. We reasoned that when a parent has subjected his children to violence and abuse, termination of that parent’s rights fulfills the purpose of Ark. Code Ann. § 9-27-341(a)(3). •
Robinson does not challenge any statutory ground or the court’s prior finding that her mental instability, delusions, and abandonment of the children constituted aggravated circumstances. She instead contends that termination is unnecessary and not in her" children’s best interest. According to Robinson, “the children were poised to be returned to their father’s custody, and their mother, while suffering from mental illness, had not harmed them, had been diligent in her efforts to maintain a relationship with them, and had a very positive impact on the girls’ otherwise negative behavior when she had contact with them.” Permanency for her children need not be achieved “by employing the draconian approach of termination” but instead “should be handled as countless others like it are | ^handled, through an order of visitation, or even an order of no contact, which could be lifted at a later date.” She argues that the state’s termination of her parental rights does not fulfill the purpose the General Assembly intended under Ark. Code Ann. § 9-27-341(a)(3).
We affirm the circuit court’s decision that termination of Robinson’s parental rights was in the children’s best interest and necessary to provide permanency for them. While Montana Dean’s parental rights' were not terminated at the hearing, there was no certainty that the children were going to be placed permanently with him. At the hearing’s close, the court said, “I cannot do that [place the children with Dean] until I have a report, we are ahead of ourselves, until I have a report from the therapist, I don’t know what’s going on with these kids and that I know that dad — well, we are going, I am not going to do that at this time.” Later it again said:
The children can’t be monitored I know in another state, but, I do not know what shape the children are in, whether they are physically ready [to go] ... I know there is going to have to be services in place for them before I can consider dad as a placement^] ... He is going to have to have a plan in place up in Toledo such as in counseling, baby sitting arrangements, et cetera. I think he is an appropriate placement. The only thing holding back right now other than if the children are ready to go is this home study.... [I]f there is a domestic battery, you never can be placed or do we know? ... [W]e will just see where we are in four months. We are not going to make any promises to anybody about anything.
The court was actively considering how it might place the children safely in their father’s care, but there was no guarantee that permanency would be achieved by that means.
Robinson has no quarrel with the court’s finding that her children are “highly adoptable” because she believes that “they will not need to be cleared for adoption in order to achieve permanency.” She instead argues that she can help care for the children while they are in their father’s custody. But it is not at all certain, that the children would be Rplaced in their father’s custody, and the court concluded that the children faced future harm if Robinson’s rights were not terminated.
Robinson’s therapist, Sharon Cummins, testified that Robinson faithfully attended therapy every other week for nine months. But, importantly, Cummins agreed that Robinson lacked insight and made no progress in recognizing the extent of her mental illness. While Robinson testified that she had lived in the same shelter for eight months, done hundreds of hours of community service, paid off large amounts of criminal fines, and bought presents for the children, she did not have a stable home to which the children could return. She was living in a temporary shelter at the time of termination. DHS could not find her during periods of the case. She did not visit the children for long stretches of time either. She started, but never finished, the court-ordered psychological examination and parenting classes. Her obsessions and/or hallucinations about celebrities continued throughout the case, and she would not take medication prescribed for her bipolar condition. Medical records were entered into evidence showing that Robinson had several severe mental-health diagnoses and that she had been in and out of inpatient mental-health facilities since she was a teenager.
Robinson may not have intentionally harmed her children, and could act as a competent parent at times, but overall she could not successfully engage in the case plan and guarantee her children’s return. Her inability to recognize the dangers her mental illness posed supports the circuit court’s conclusion of potential harm— meaning that there was no way to know with sufficient confidence that D.D. and S.D. would be safe in Robinson’s custody. See Rossie-Fonner v. Ark. Dep’t of Human Servs., 2012 Ark. App. 29, 388 S.W.3d 11038 (affirming termination where parent had a lifelong history of serious mental illness and the nature of this illness was permanent and unpredictable and would therefore continue to present a serious risk of harm to children). Therefore the circuit court’s conclusion that a termination of Robinson’s parental rights was necessary and in her children’s best interest was not clearly erroneous.
III. Conclusion
We affirm the termination of Robinson’s parental rights to D.D. and S.D.
Affirmed.
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LARRY D. VAUGHT, Judge
11 Appellant Kirk Douglas Harris, Jr., was charged in the Stone County Circuit Court with attempted first-degree murder for allegedly stabbing and cutting Michael “Mike” Pringlemeir. Following a jury trial, Harris was convicted of attempted second-degree murder and sentenced to serve twenty years’ imprisonment in the Arkansas Department of Correction and to pay a $15,000 fine. On appeal, Harris argues that the trial court, in limiting the cross-examination of Mike’s wife, Rebecca “Becky” Pringlemeir, violated his right to confront his accuser and abused its discretion. We affirm.
Because Harris is not challenging the sufficiency of the evidence, only a brief summary of the facts is required. On June 25, 2013, Harris, Mike, and Becky were at the home of Melvin England drinking alcohol. Becky testified that Harris was on the phone with his girlfriend when Mike said, “Get off the phone with the whore.” Becky saw Harris jump out of his chair and scuffle with Mike. Becky separated the men. She next saw Harris leave |2the room, return with a large knife, and head toward Mike. Becky witnessed Harris stab Mike in the chest and back with the knife and cut his face from his mouth to his earlobe.
Harris raises one point on appeal— that the trial court erred in limiting his cross-examination of Becky. During her cross-examination, Becky stated that she started drinking alcohol around 6:00 p.m. and stopped drinking around 9:00 p.m. She stated that she was not intoxicated at any point during the night and that alcohol did not cloud her judgment or perception. She also testified that before the stabbing, she and Harris had sex while Mike watched. Defense counsel continued:
Defense Counsel: I don’t mean to harp on this issue but I just — I really want to know the extent of the drinking that was there, okay? ' Were you guys — were you drunk whenever you had sex [with Harris]?
Witness: No.
State: Judge, we’d object. Can we approach?
[Sidebar]
State: Judge, she’s asked [Becky] this question once. She’s answered. She answered again.... This is the third time. This is repetition. She’s answered the question. It’s done. It’s clearly repetition.
Defense Counsel: I haven’t asked her if she was drunk when she had sex.
State: Judge, she’s asked her what she’s been drinking, it was established she was drinking beer. She had a couple of shots, she was drinking tea, she [was] pouring it down the drain, they’ve established the timeframe that she’s been drinking. There is no longer a drinking question that she can ask. It’s repetition at this point. This is the third time. I let it go once.
IsDefense Counsel: I don’t think it’s cumulative or redundant or anything to ask were you drunk when you were having sex. She’s — I mean that’s a legitimate question.
State: I would objéct to relevance.
Defense Counsel: Is your judgment — is your judgment impaired on your having sex with another man in front of your [husband]. I mean, were you drunk then? ...
State: I would object to relevance on that. The fact that she’s drinking or not while she’s having sexual intercourse with another individual has no bearing of guilt or innocence on this defendant.
Defense Counsel: Well, it doesn’t hurt credibility.
State: She’s admitted that she had sexual relations with [Harris]. She’s not denying it.
Defense Counsel: She’s said she was sober, you know. And — I mean, and we talked about how alcohol affects your judgment. Well, I don’t believe — you know, it’s — I think it’s a legitimate question to say were you drunk when you were having sex with another man in front of your husband. I mean, were you not impaired or what were you thinking?”
She says she wasn’t drunk and now— I mean, who [has] sex with — I mean, something was going on in her mind. I think it’s a legitimate question whether or not she was functioning.
CouRt: The Court sustains the objection.
On appeal, Harris first argues that the trial court violated his Sixth Amendment right to confront Becky by limiting her cross-examination. We cannot reach the merits of this argument, however, because Harris did not raise a Confrontation Clause argument below; accordingly, there was no ruling from the trial court on the issue. It is well settled that a party pis bound by the nature and scope of the objections and arguments made at trial and may not enlarge or change those grounds on appeal. Stewart v. State, 2012 Ark. 349, at 8, 423 S.W.3d 69, 74. Thus, we hold that Harris’s Confrontation Clause argument is not preserved for our review. See also Woodward-Kuhn v. State, 2013 Ark. App. 757, at 3, 2013 WL 6686318.
Harris next argues that the trial court abused its discretion in limiting Becky’s cross-examination in violation of Arkansas Rules of Evidence 602 and 611. Specifically, he contends that limiting his cross-examination of Becky violated these rules because she “was the only witness who claimed to be sober and capable of accurate perception at the time her husband, the victim, was stabbed.” Therefore, according to Harris, she became the most important witness in the case, making her credibility, the extent of her sobriety, and her ability to perceive events critical issues. He points out that because Becky claimed she was not intoxicated when the stabbings occurred, in an effort to discredit her, he should have been able to ask her whether she was drunk when she had sex with Harris while Mike watched, which took place one hour before the stabbings.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Marks v. State, 375 Ark. 265, 269, 289 S.W.3d 923, 926 (2008). We will not reverse an evidentiary decision by the trial court in the absence of prejudice. Id,, 289 S.W.3d at 926.
| ^Arkansas Rule of Evidence 611(b) (2015) provides that the scope of cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The crux of Harris’s argument is that the trial court abused its discretion in limiting his cross-examination of Becky because he was seeking to discredit her. The scope of cross-examination extends to matters of credibility. Jones v. State, 349 Ark. 331, 339, 78 S.W.3d 104, 110 (2002) (citing Ark. R. Evid. 611). A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. Id. at 339-40, 78 S.W.3d at 110. Proof of bias is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.” Id. at 340, 78 S.W.3d at 110 (citing United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)). In other words, matters affecting the credibility of a witness are always relevant. Id., 78 S.W.3d at 110.
While the State argues that the trial court’s decision to limit Becky’s cross-examination was not an abuse of discretion because the questioning was irrelevant, matters affecting the credibility of a witness are always relevant. Jones, 349 Ark. at 339, 78 S.W.3d at 110. And attacking Becky’s credibility was at the heart of the questioning sought by Harris’s counsel. Counsel was attempting to counter Becky’s testimony that she was not intoxicated or impaired by questioning her about the sexual encounter she had with Harris while her husband watched, attempting to draw the inference that she had to have been intoxicated or impaired in order to engage in such conduct. Because Harris’s efforts to discredit Becky during her cross-examination were limited by the trial court as irrelevant, we hold that the trial court abused its discretion.
|fiThe State also argues that the trial court’s decision to limit Becky’s cross-examination was not an abuse of discretion because the questioning was repetitive. The record reveals it was not. Becky was asked only one time whether she was intoxicated when she had sex with Harris. The question immediately drew an objection from the State (set forth above). Accordingly, to the extent the trial court limited Becky’s cross-examination because it was repetitive, ,we hold that the trial court abused its discretion.
Despite the trial court’s abuse of discretion in limiting Becky’s cross-examination, we must affirm because Harris cannot establish prejudice. Marks, 375 Ark. at 269, 289 S.W.3d at 926. Contrary to Harris’s argument, Becky’s testimony was not the only evidence of Harris’s guilt. Mike testified that Harris stabbed him twice and cut him once. Also, a portion of Harris’s recorded statement was played to the jury, wherein he admitted stabbing Mike twice and cutting him once. Because there was overwhelming evidence of Har ris’s guilt, independent of Becky’s testimony, he did not suffer prejudice as a result of the trial court’s error in limiting her cross-examination. Accordingly, we affirm.
Affirmed.
Abramson and Gruber, JJ., agree.
. The testimony at trial revealed that England was passed out on the couch during the incident and that he was not called as a witness at trial. Mike did testify; however, Harris argues that Mike "remembered very few details because he was very drunk and[,] after he was stabbed[,] he lapsed in and out of consciousness.”
. Becky was asked several times whether she had been drinking the night in question, how long had she been drinking that night, and how much alcohol had she consumed. Additionally, she was asked more than once about her sexual encounter with Harris. While the State asked generally whether Becky felt that she was intoxicated at any point during the night, she was asked only once whether she was intoxicated when she had sex with Harris. | [
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LARRY D. VAUGHT, Judge
| íAppellants Brooke and Brent Newman appeal from the orders entered by the Circuit Court of Sebastian County terminating their parental rights to their son C.N. (a member of the Cherokee Nation who was born on July 7, 2012) and denying their posthearing motion to set aside the termination decision or for new trial. The Newmans raise three issues on appeal. They first argue that the trial court abused its discretion in denying their motion to dismiss the termination petition because appellee, the Arkansas Department of Human Services (DHS), filed the petition outside the fifteen-month timeline required by Arkansas Code Annotated section 9-27-359(c) (Repl. 2015). Second, they argue the trial court clearly erred in finding that clear and convincing evidence supported the termination decision. And finally, they argue that the trial court abused its discretion in denying their motion to set aside |2the termination decision or for new trial based on the trial court’s failure to enter a timely termination order as required by Arkansas Code Annotated section 9-27-341(e). We affirm.
On May 19, 2013, DHS obtained a 72-hour hold on C.N. after medical professionals reported to police that he had a one-week-old broken arm and that the Newmans failed to provide a sufficient account as to how the injury was caused or why they delayed in seeking medical treatment. DHS filed a petition for emergency custody on May 28, 2013, which was granted that same day. Following an adjudication hearing, an order finding C.N. dependent-neglected was entered on September 10, 2013. In the adjudication order, the court credited the testimony of Dr. Chris Bell and registered nurse Jeanne Losurdo, who testified that the Newmans allowed C.N. to suffer through significant pain for several days before seeking medical attention for him and that C.N. would not have been pain free and using his broken arm in the manner described by the Newmans. The trial court also noted evidence of domestic violence, much of which occurred in the presence of C.N.; violation of no-contact orders and orders of protection; lying to police officers; the Newmans’ volatile relationship; and Brent’s criminal history involving assault and battery of household members. The court set the goal for the case as reunification and ordered the New-mans to visit C.N.; attend marriage counseling; obtain and maintain stable housing, employment, and transportation; remain drug and alcohol free; submit to random drug testing; undergo drug-and-alcohol assessments; and submit to psychological evaluations. Brent was ordered to complete a domestic-violence course.
A permanency-planning hearing was held on April 30, 2014, wherein the court found that it was not in C.N.’s best interest to return to the custody of his parents because it would hplace him at risk of harm. The trial court also found that concurrent goals of reunification and adoption were appropriate.
A fifteen-month review hearing was held August 24, 2014. While the trial court found that the Newmans had completed many of the requirements of their case plan, it further found that C.N. was in need of DHS services and that returning him to the custody of his parents was contrary to his welfare. The trial court noted that the representative of the Cherokee Nation and C.N.’s attorney ad litem agreed that C.N. should not be returned to the Newmans at that time. The court also pointed out that DHS had expressed an intent to file a petition to terminate the Newmans’ parental rights to C.N. The trial court continued the concurrent goals of reunification and adoption.
On January 12, 2015, DHS filed a petition to terminate the Newmans’ parental rights, alleging three grounds: (1) the failure-to-remedy ground pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a); (2) the subsequent-factors ground pursuant to section 9-27-341(b)(3)(B)(vii)(a), and (3) the aggravated-circumstances ground pursuant to section 9-27-341(b)(3)(B)(ix)(a )(S )(A).
The termination hearing was held on March 13, 2015. Brent Newman testified his relationship with Brooke was great, although he conceded that they had gone through some “rocky points” in the past and that they both “ha[d] tempers.” He admitted that he had been convicted of battering Brooke, that she had called the police “quite a few times” accusing him of mistreating her, and that he had been arrested three times following Brooke’s calls to the police. He described two of his arrests. One arrest occurred after he and Brooke used a baseball bat to destroy each other’s belongings. Another occurred on Christmas Eve 2014. He |4said that he had been asleep when he was told that someone was knocking at his door and looking into the window. He opened the door, identified himself to the officer as “Puddin Tañe,” and turned around to go back into his apartment. He said that the officer assaulted him, grabbing him from behind and ripping his shirt. Brent denied drinking alcohol that night.
As for the incident that gave rise to DHS’s custody of C.N., Brent testified that he did not cause C.N.’s arm injury. However, he stated that approximately one week before they took C.N. to the doctor, he (Brent) rolled over on the floor to get up, and his “knee was on” C.N.’s arm.
Brent conceded that he was an alcoholic and had a problem with methamphetamine; however, he added that he last drank alcohol and used meth in October 2014. He further testified that he had maintained housing for the past year and had maintained employment for the past two .years. He stated that he attended domestic-violence classes, regularly attended AA/NA meetings, completed drug-and-alcohol assessments, attended individual and marriage counseling, had a psychological evaluation, and attended parenting classes. He stated that he visited C.N. regularly and that the visitations had gone well.
Brooke testified that her six-year relationship with Brent suffered from problems because of Brent’s alcohol problem and his temper. She admitted that she had told the caseworker that she feared Brent when he drank alcohol and that shé wanted “out of the marriage” in November 2014. However, according to Brooke, since that time things with Brent had improved. Brooke stated that she did not know how C.N.’s arm was broken and that she did not believe that Brent intentionally broke C.N.’s arm. She admitted that she and Brent should have realized that it was broken.
IfiBrooke conceded that she was a drug addict. She said that during the DHS case she and Brent used methamphetamine,' she smoked marijuana, and they had positive drug tests. She also stated that Brent attempted to defeat drug tests. However, she said that she 'attended parenting classes, a drug assessment, AA/NA meetings, a psychological evaluation, and individual and marriage counseling. She also said that she attended every visit with C.N.
Several Fort Smith police officers testified at the termination hearing. Officer Matt McHam testified that on April 9, 2014, he responded to a disturbance call made by the Newmans’ neighbor. McHam stated that Brooke reported that she and Brent had gotten into a fight about a sandwich and that both of theta used a baseball bat to destroy each other’s personal items. McHam said that he arrested both parties. Officer Andrew Adams testified that on April 10, 2014, Brent wanted to file charges against Brooke for throwing a potted plant through the window of their apartment. On May 16, 2014, Officer Jeffrey Lum responded to a disturbance call placed by Brent. Brent reported that Brooke had thrown a rock through the window after they had gotten into an argument.
The fourth and final police officer to testify was Nathan Sosebee. He said that on December 24, 2014, he responded to a disturbance call made by the Newmans’ neighbor. ‘ Sosebee testified he knocked on the Newmans’ apartment door, and Brent aggressively opened it. Sosebee said that Brent and Brooke were yelling and cursing at him. Sosebee asked for Brent’s name, to which Brent responded, “Puddin Tane.” Brent then said, “F* * * you,” turned around, and tried to go back into the apartment Sosebee grabbed Brent’s wrist and told him he was under arrest. Brent pulled away, and Sosebee grabbed Brent’s shirt, which ripped. Sosebee testified that Brent’s breath smelled strongly of alcohol and that he believed |fithat Brent was intoxicated. Sosebee, who had his Taser out, said that-he and Brent argued back and forth before Brent eventually exited the apartment, provided his name, and was arrested. A portion of the incident was recorded by the Taser, and the recording was played at the hearing.
DHS caseworker Rebecca Newton said that DHS had. offered parenting classes, psychological ' evaluations, counseling, drug-and-alcohol assessments, random drug testing, hair-follicle testing, marriage counseling, and visitation. Newton testified that Brooke was cooperative with drug testing and admitted , her meth and marijuana use. Brent was not cooperative. Newton stated that he shaved his body to avoid hair-follicle testing and that once he provided a cold urine sample. Newton testified that' the Newmans both tested positive for meth in April or May 2014 and that Brent tested positive for meth in February 2015.
Newton testified that DHS -recommended that the Newmans’ parental rights to C.N. be terminated. She said that C.N. was removed from their custody as a result of medical neglect and failure to protect and that those situations had not been remedied. She said that neither party took full responsibility for C.N.’s injury. Newton also had concerns about the New-mans due to the complaints made by their neighbors, Brent’s temper, Brent’s and Brooke’s violence toward each other, their aggressive response to the police in December 2014, and their continued drug- and-alcohol use. She noted that they were not honest with their therapist because they denied having drug-and-alcohol addictions. Newton believed that the Newmans represented a serious risk of harm to C.N. because he could get caught in the “crossfire.” She 17aIso testified that C.N. was adoptable and that someone had expressed an interest in adopting him.
Tad Teehee, the tribe representative for the Cherokee Nation, testified that he had attended every hearing in the casé and had interacted with the Newmans. He stated that DHS had provided reasonable and active services to the Newmans in an effort to give them the greatest chance at having C.N. returned safely, to them'. He said that after twenty-two months, it was his opinion that C.N. could not safely return to the Newmans and that he would likely suffer serious emotional or physical damage if returned to them; Teehee cited the Newmans’ very volatile relationship, their drug use, Brent’s angry temper, and the fact that they had not learned anything in their classes. He stated that the Taser video demonstrated their inability to make competent and appropriate decisions. He also stated that C.N. was adoptable and that the Newmans’ parental rights should be terminated.
Therapist Joanie Henry .testified that she had provided individual and marriage counseling to the Newmans. Henry acknowledged that the Newmans had an abusive relationship that was triggered by drugs and alcohol. She said that Brooke and Brent did not know how C.N.’s arm was broken. However, it was her belief that the Newmans had made, progress, individually and in their relationship, as a result of counseling. She further testified that she did not believe that the Newmans posed a serious risk of harm to C.N.
At the conclusion of the hearing, the trial court orally granted the termination petition. No termination order was entered. On July 8, 2015, the Newmans filed a motion to set aside |8the termination decision or for new trial. They argued that because the trial court did not enter a termination order within thirty days of its oral termination decision,- the decision should be set aside to prevent a miscarriage of justice pursuant to Arkansas Rule of Civil Procedure 60(a), or alternatively, they should receive a new trial because the irregularity in the proceedings prevented them from having a fair trial pursuant to Arkansas Rule of Civil Procedure 59(a)(1).
On August 12, 2015, the trial court entered an order terminating the Newmans’ parental rights. The trial court found beyond a reasonable doubt that DHS had proved all three grounds alleged,.that termination was in C,N,’s best interest, that C.N. was adoptable, and that continued custody of C.N. by his parents would result in serious physical or emotional harm. The court found that DHS, had made ac-, five efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and that a Cherokee Nation representative had been present throughout the case and had provided the necessary expert testimony to support the termination decision.
Two weeks later, on August 26, 2015, a hearing was held on the Newmans’ motion to set aside the termination decision or for new trial. At the hearing, Brooke testified that on June 10, 2015, Brent was arrested, and wag still incarcerated, for assaulting and battering her. She said that she left her job the next day due to emotional stress. On August 28, 2015, the trial court entered an order denying the Newmans’ motion to set aside the termination decision or for new trial. This appeal followed.
The Newmans’ first point on appeal challenges the trial court’s denial of their motion to dismiss the termination petition. Our standard of review for the denial of a motion to dismiss is whether the trial court abused its discretion. Ark Dep’t of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, at 5, 455 S.W.3d 294, 298. The Newmans contend that the trial court abused its discretion in denying their motion because DHS untimely filed it in violation of Arkansas Code Annotated section 9-27-359(c), which provides: “If the court determines the permanency goal to be adoption, the department shall file a petition to terminate parental rights no later than the fifteenth month of the child’s entry into foster care.” Based on this language and the undisputed fact that the termination petition was filed after C.N.’s fifteenth month in foster care, the New-mans contend that the trial court was divested of subject-matter jurisdiction to hear the termination petition.
A similar argument was made and rejected by our court in Hill v. Ark Dep’t of Human Servs., 2012 Ark. App. 108, 389 S.W.3d 72. There, the appellant argued that the trial court erred in denying her motion to dismiss for failing to hold the termination hearing within ninety days after the filing of the termination petition in violation of Arkansas Code Annotated section 9-27-341(d). The appellant argued that because of the violation, the trial court lost jurisdiction to hear the petition after the ninety-day period had expired. Id. at 4-5, 389 S.W.3d at 74-75. We disagreed, holding that while the applicable statute spoke in mandatory terms, a loss of jurisdiction did not follow because the General Assembly did not provide a sanction for an untimely filing and because there was no evidence that such a result was intended. Id. at 5, 389 S.W.3d at 75. Accordingly, we held that the failure of the trial court to hold the termination hearing within ninety days of the filing of the petition did not deprive the trial court of jurisdiction. Id. at 6, 389 S.W.3d at 75. We also concluded that reversal was not appropriate in the absence of a showing of prejudice resulting from the delay. Id., 389 S.W.3d at 75.
| mWe hold that the same analysis applied to section 9-27-341 in Hill applies to section 9-27-359(c). Although section 9-27-359(c) is mandatory, the General Assembly did not provide a sanction for the failure to file a termination petition within the prescribed time, and there is no statutory language that a loss of jurisdiction follows from an untimely filing. Further, the Newmans failed to demonstrate prejudice suffered because of the delay in the filing of the termination petition. To the contrary, the delay was a benefit to the Newmans because they were afforded an additional five months to work the case plan and receive DHS services. Accordingly, wé hold that the trial court did not abuse its discretion in denying the New-mans’ motion to dismiss.
For their second argument, the Newmans challenge the sufficiency of the evidence supporting the trial court’s termi nation decision. We review termination-of-parental-rights cases de novo. Ford v. Ark Dep’t of Human Serv., 2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Id., 434 S.W.3d at 380 (citing Ark.Code Ann. § 9-27-341). In making a best-interest determination, the trial court is required to consider two factors: (1) the likelihood .that the child will be adopted, and (2) the potential of harm to the child if custody is returned to a parent. Id., 434 S.W.3d at 380. Adopta-bility is not an essential element but is rather a factor .that the trial court must consider. Id., 434 S.W.3d at 380. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Id., 434 S.W.3d, at 380. The potential-harm |, t analysis is to be conducted in broad terms. Id., 434 S.W.3d at 380. The best-interest finding must be supported by clear and convincing evidence. Id., 434 S.W.3d at 380.
Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Id., 434 S.W.3d at 380. ' The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id., 434 S.W.3d at 381. .Credibility determinations are left to the factfinder, here the trial court. Id., 434 S.W.3d at 381.
The trial court found that DHS met its burden of proving all three statutory grounds alleged in the termination petition. Only one ground is necessary- to terminate parental rights, Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 345, 285 S.W.3d 277, 282 (2008), and we hold that the trial court did not clearly err in finding that DHS proved the failure-to-remedy ground. C.N. had been out of the Newmans’ home for twenty-two months and had. been adjudicated dependent-neglected. The trial court found that despite the services provided by DHS, the New-mans had not remedied the conditions that caused removal of-the child. The trial court found that C.N.’s injury was caused by a violent act and not someone “rolling] over on th[e] child.” The evidence demonstrated that, the parties’ pattern of domestic violence continued. There were four calls to police reporting the parties’ violent behavior. As a result, Brent was arrested twice and Brooke was arrested once. The Taser video, which the trial court specifically referenced in its order, demonstrated their continued violent behavior and inappropriate decision making. After the termination hearing, Brent had assaulted Brooke again and remained incarcerated for that offense. The parties’ pattern of drug use and Brent’s 112alcohol use continued. Finally, there was evidence that the parties failed to accept responsibility for C.N.’s injury.
This same evidence supports the trial court’s finding that termination of the Newmans’ parental rights was in C.N.’s best interest. There was evidence that C.N. was adoptable. And we cannot say that the trial court clearly erred in finding that the combination of the long-standing pattern of physical abuse and substance abuse created an environment that posed a serious and unreasonable risk of harm to the health and safety of C.N. A parent’s past behavior is often a good indicator of future behavior. Ford, 2014 Ark. App. 226, at 3, 434 S.W.3d at 381.
The Indian Child Welfare Act, 25 U.S.C. § 1912(f), provides in pertinent part that
[n]o termination of parental rights maybe ordered in such proceeding in the absence .of a determination, supported by evidence beyond a reasonable doubt, including testimony by qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
Thus, in this case it must also be shown by proof beyond a reasonable doubt that continued custody with the Newmans is likely to result in serious emotional or physical damage to their child. Burks v. Ark. Dep’t of Human Servs., 76 Ark.App. 71, 76, 61 S.W.3d 184, 187 (2001).
DHS met its burden under section 1912(f). In its termination order, the trial court stated that DHS had proved its case “beyond a reasonable doubt.” Moreover, the court found that the Cherokee Nation tribe representative testified that continued custody by the Newmáns would result in serious physical or emotional harm to C.N. and that DHS made active efforts to provide remedial services', and rehabilitative programs to prevent the breakup- of the Indian family.
| TSWe note that the Newmans’ challenge to the sufficiency of the evidence seeks to have our court reweigh the evidence. They contend that they did assume responsibility for C.N.’s injury, that not all of their encounters with law enforcement resulted in arrests or convictiohs, that the Taser video showed that Brént did not attempt to interfere with the officer, that the findings of violence were based on outdated information,' that the drug-test results established that the Newmans had not' used drugs since October 2014, and that their counselor opined that they had made progress. However, we cannot reweigh the evidence. Credibility determinations are left to the trial court. Ford, 2014 Ark. App. 226, at 2, 434 S.W.3d at 381. For all of these'reasons, we hold that the trial court did not clearly err in terminating the Newmans’ parental rights to C.N.
For their final argument, the Newmans contend that the trial court abused its discretion in denying their motion to set aside the termination, order under Arkansas Rules of Civil Procedure 59, or alternatively, for a new trial under Rule 60.' Their motion was based on the trial court’s failure to enter a timely termination order as required by Arkansas Code Annotated section 9-27-341(e), which provides that “[a] written order shall be filed by the' court ... within thirty (30) days of the date of the termination hear-ing_” " There is no dispute that the termination order was not filed within thirty days of the termination hearing. The Newmans contend that the delay constituted either an'irregularity in the proceedings that prevented them from receiving a fair trial or a miscarriage of justice.
• We review the denial of motions to set aside judgments pursuant to Rule 59 and motions for new trial pursuant to Rule 60 under an abuse-of-discretion, standard. Jones v. Double “D” Properties, Inc., 352 Ark. 39, 48, 98. S.W.3d 405, 410 .(2003) (Rule 60 standard of review); \UNobles v. Tumey, 2010 Árk, App. 731, at 12, 379 S.W.3d 639, 647-48 (Rule 59 standard of review).
The record reveals no explanation for the five-month delay between the oral decision handed down at the termination hearing and the trial court’s' entry of the termination order. The violation of the time constraint set forth in section 9-27-341(e) is, arguably, an irregularity in the proceeding. And clearly, the best practice would have been for the trial, court to timely enter its termination decision.
Nevertheless, there is no evidence in this case that the trial court’s failure to timely file the termination order had the effect of making the termination proceeding unfair or that it constituted a miscarriage of justice. The timing of the filing of the termination order had no effect on the termination proceeding whatsoever. The Newmans received a fair opportunity to litigate their substantial rights. And the Newmans failed to present any evidence that in the five months following the termination hearing they improved their positions in regard to the case plan. To the contrary, the only evidence in the record of the Newmans’ posthearing status was that they had regressed — Brent assaulted and battered Brooke again, he was incarcerated, and she was unemployed. Accordingr ly, we hold that the trial court did not abuse its discretion in denying the New-mans’ motion to set aside the termination order or for new trial.
Affirmed.
Abramson and Gruber, JJ., agree.
. Because C,N. is of Cherokee Indian descent, the Indian Child Welfare Act, 25 U.S.C. § 1901 etseq., applies.
. Lydia Dorr testified that she had been C.N.’s foster parent since May 20, 2014, that C.N. was a great child, that she had a strong bond with him, and that she wanted to- adopt him. ‘ ■ | [
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Jim Gunter, Justice.
Appellant, Billy Dale Johnson, appeals from an order of the Greene County Circuit Court, granting summary judgment in favor of the appellees: Greene Acres Nursing Home, Paragould Nursing & Rehabilitation Center, Dr. Mack Shotts, and Dr. Dwight Williams. The circuit court’s order dismissed appellant’s complaint, which involved allegations of medical malpractice in the care and treatment of his mother, Gracie Mears, prior to her death. The circuit court determined that appellant was not the executor of the estate at the time the complaint was filed; therefore, the complaint was a nullity. Because no complaint was filed by a person vested with authority to act on behalf of the estate within the two-year statute-of-limitations period, the court granted summary judgment and dismissed the case. We affirm.
We set forth our standard of review of a circuit court’s order granting summary judgment in Jordan v. Diamond Equipment & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005), stating:
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Riverdale Development Co. v. Ruffin Building Systems Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. George v. Jefferson Hosp. Ass’n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). We view the evidence in the light most favorable to the non-moving party, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
Jordan, supra.
The following facts in this case are undisputed. Gracie Mears died on November 23, 2001. Her two sons survived her. On March 22, 2002, appellant, one of her sons, was appointed as the executor of her estate. On October 25, 2002, upon appellant’s petition, the probate division of the circuit court entered an Order Approving Final Accounting or Waiver of Final Accounting, Distribution and Discharging Executor. In the order, the court stated that
the Executor and his sureties be and the same are hereby released and discharged from their trust herein and any and all liability or accountability thereunder, and the administration of the estate is closed subject to the payment of the claims as filed herein represented to be paid from proceeds of private sale after set off as herein provided.
This estate shall remain open pending a determination of potential litigation of personal injury and/or mal-practice claims pending, etc.
On July 8, 2003, appellant filed a petition to re-open the estate in order to file this lawsuit. On July 25, 2003, before an order reappointing him as executor was entered, appellant, in his capacity as the executor of Ms. Mears’s estate, filed a complaint against the appellees, alleging that Ms. Mears’s death was the result of the individual and combined acts of negligence of the appellees. Each of the appellees filed a motion for summary judgment, arguing that appellant lacked standing to bring the cause of action, as he was not the administrator or executor of Ms. Mears’s estate, and that no valid complaint had been filed within the applicable statute of limitations. The circuit court granted the motions, holding that appellant had been discharged as executor before he filed the complaint. Therefore, the court held that the complaint was a nullity. Moreover, the court found that no valid complaint had been filed before the expiration of the applicable statute of limitations.
For purposes of this appeal, the parties agree that the only complaint filed before expiration of the applicable statute of limitations is the complaint filed by appellant on July 25, 2003, and dismissed by the summary-judgment order being appealed in this case. The parties also agree that appellant was not the sole heir at law of Ms. Mears. Therefore, unless appellant was the personal representative, or executor, of the estate of Ms. Mears at the time of filing, he had no authority to file the complaint. See Ark. Code Ann. § 16-62-102(b) (Supp. 2005); Ark. Code Ann. § 16-62-101(a)(1) (Supp. 2005); Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001) (holding that wrongful-death action must be brought by personal representative or, if there is no personal representative, by all of the heirs at law). Thus, the question before us is whether appellant was the executor of the estate of Ms. Mears at the time he filed this complaint.
Appellant argues that, while the probate court’s order appeared to discharge him as the executor, the estate was left open for the express purpose of pursuing a wrongful-death action. Because this “contingency” was never met, he argues that the estate remained open and he remained the executor. He relies on the court of appeals’ holding in Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997), to support his argument. In Skaggs, the personal representative in a wrongful-death case argued on appeal that the circuit court erred in finding that the estate had been closed. The court of appeals agreed, relying on the language in the probate court’s order approving final distribution, which stated that the court was approving final distribution, discharge of the personal representatives, and closing of the estate “upon report of such payments and distributions.” Id. at 54, 941 S.W.2d at 444-45. The court of appeals found, first, that no such “reports” were ever filed and, second, that the probate court acknowledged that the estate remained open in a memorandum opinion dated over a year later, by directing one of the personal representatives to complete the “ministerial duties” of the administrator and close the estate within thirty days. Id.
Appellees distinguish the probate order in Skaggs from the probate order in this case. They argue that the probate order in Skaggs approved final distribution, discharge of the personal representative, and closing of the estate “upon reporto/such payments and distributions.” Id. (emphasis added). This language made it clear that the closing of the estate and the discharging of the personal representative were contingent upon the occurrence of an event: the filing of a report. Because the report was never filed and because the probate court itself acknowledged in a subsequent order that the estate was open, the appellees argue, the court of appeals held that the estate was still open. Appellees argue that the probate order in this case contains no such contingency. While appellees admit that the order in this case stated that the estate was left open for the possibility of tort litigation, they claim that the probate court did not make its plain order discharging the executor contingent upon whether tort litigation was or was not pursued. If tort litigation was pursued, then appellant was required to petition the court, as he did, to be reappointed as personal representative to pursue it.
We agree with the appellees. The language in the court’s order clearly discharges the executor, stating as follows:
[T]he Executor and his sureties be and the same are hereby released and discharged from their tmst herein and any and all liability or accountability thereunder, and the administration of the estate is closed subject to the payment of the claims as filed herein represented to be paid from proceeds of private sale after set off as herein provided.
While it is arguable that the closing of the estate was “subject to the payment’ ’ of certain claims, the record indicates that those claims have been paid, and appellant has not suggested otherwise. In any case, he does not argue that his discharge was subject to such payments, but argues instead that his discharge was contingent upon the filing of a wrongful-death action.
Although not specifically citing any statute in its order, the court’s order appeared to be pursuant to Ark. Code Ann. § 28-53-104 (Repl. 2004), which governs orders of final distribution. Section 28-53-104(a) requires a court to make certain statements regarding claims, notices, and other matters in an order of final distribution. The probate court did so in this case. Section 28-53-104(b) states that the order shall discharge the personal representative and the surety on his or her bond “[i]f there has been a determination that there is no liability to the estate by the personal representative or his or her surety and if the order approves a final distribution previously made[.]” Id. In accordance with this statute, the court stated, “distribution previously made or to be made hereunder is hereby approved and the Executor and his sureties be and the same are hereby released and discharged from their trust herein and any and all liability or accountability thereunder . . . .” Nothing in the court’s statement discharging the executor indicated that the discharge was subject to a lawsuit being filed. The court’s subsequent paragraph — stating that “[t]his estate shall remain open pending a determination of potential litigation of personal injury and/or mal-practice claims pending, etc.” — does not state that the executor shall not be discharged pending such a determination. We will not rewrite the court’s order to include such a provision.
We hold that the probate court’s order entered on October 25, 2002, discharged appellant as the executor for the estate of Ms. Mears. Therefore, he had no standing to file a lawsuit on behalf of the estate, and the complaint that he filed against the appellees on July 25, 2003, was a nullity. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002). We affirm the judgment of the circuit court.
Affirmed.
The parties mentioned in the summary-judgment hearing that this petition was eventually granted, but it was granted after the statute of limitations had run. The order is not in the record.
This court has long held that the two-year statute of limitations period for medical-malpractice actions set forth in Ark. Code Ann. § 16-114-203 applies to all causes of action for medical injury, including survival actions under Ark. Code Ann. § 16-62-101 and wrongful-death actions under Ark. Code Ann. § 16-62-102. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002); Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996). | [
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Per Curiam.
Kingrale Collins appeals the denial of his petition for postconviction relief under Ark. R. Crim. P. 37.5. Collins was convicted of capital murder and sentenced to death. He raises five issues on appeal, including issues that require reference to events at trial. However, the brief on appeal contains no abstract of the relevant portions of the trial giving rise to his claims of ineffective assistance of counsel. We note that Collins includes in the record a copy of his brief, including the abstract, from his direct appeal in 1999. However, this fails to meet the requirements of our rules for two reasons. First, as we have repeatedly stated, we will not pass a record among seven justices. Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (2002). Second, Ark. Sup. Ct. R. 4-2(a)(5) sets out specific requirements for the abstract:
The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or empha sis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.
An abstract that served on direct appeal may not necessarily fulfil the requirements of an abstract on a rule 37 petition. Proper abstracting is the obligation of Collins’s attorney. Dansby, supra. Therefore, we order counsel to refile this brief within thirty days in compliance with Ark. Sup. Ct. R. 4-2(a)(5). See Dansby, supra. In Dansby, we ordered rebriefing because of our heightened standard of review in death cases, our longstanding rule that we do not go to the record to reverse a trial court, and our conclusion that an affirmance of the trial court because of an abstract deficiency in a death case would be too harsh. Id.
Collins is given thirty days to revise the abstract and submit to this court a substitute brief. The argument section of the brief shall remain the same as that currently included in the brief before this court. Because the argument portion of the appellant’s brief will be unchanged, a response by the State should be unnecessary, unless the State objects in some way to the abstract provided.
Rebriefing ordered. | [
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Donald L. Corbin, Justice.
Appellant Todd Elsner, D.C., appeals the order of dismissal granted by the Benton County Circuit Court in favor of Appellee Farmers Insurance Group, Inc. On appeal, Appellant raises a single argument for reversal: that he is an intended beneficiary of the insurance contract between his client and Appellee. Specifically, the issue before the court is whether or not a health-care provider who provides services to a patient, pursuant to a personal injury protection (PIP) provision in that patient’s policy, can be considered a third-party beneficiary to the extent that the provider has standing to litigate the question of the reasonableness and necessity of medical services provided to the insured. As this is an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We find no error and affirm.
Appellant is a chiropractic physician who began treating Mrs. Allison Langley in September 2003 for acute traumatic injuries suffered in an automobile accident. At the time of the accident, Mrs. Langley was covered by her husband’s insurance policy with Appellee. The insurance policy contained PIP coverage which stated that the insurance company will “pay for all reasonable and necessary medical and hospital expenses incurred within twenty-four (24) months from the date of the accident which cause the bodily injury.” Appellant had submitted a bill to Appellee for payment in regards to Mrs. Langley’s treatment. Appellee refused to pay part of the bill claiming that some of the charges were not reasonable nor necessary for diagnosing and treating Mrs. Langley’s injuries.
On June 14, 2004, Appellant filed a complaint against Appellee for breach of contract. Appellant claimed that he was a third-party beneficiary to the insurance contract. Appellee responded by filing a motion to dismiss. Specifically, Appellee stated that Appellant had no privity of contract and was not a third-party beneficiary. The trial court granted the motion to dismiss and entered its order on December 7, 2004. This appeal followed.
Appellant claims that the trial court erred in granting Appellee’s motion to dismiss. Specifically, he argues that the trial court incorrectly relied upon Ludmer v. Erie Ins. Exch., 295 Pa. Super. 404, 441 A.2d 1295 (1982), in finding that he could not proceed against Appellee because he was not a third-party beneficiary to the contract. In constructing his argument, Appellant claims that Appellee’s policy contemplated that disputes may arise over the reasonableness and necessity of treatment thus implicating that the resolution of those disputes would occur between the doctors and the insurance company. Consequently, Appellant maintains that he is an intended third-party beneficiary and, therefore, has standing to proceed against Appellee. This argument is without merit.
In reviewing a dismissal order pursuant to Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004); City of Dover v. City of Russellville, 352 Ark. 299, 100 S.W.3d 689 (2003). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff s favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
This appeal also requires us to determine the intent of two parties in creating an insurance contract. We have repeatedly held that the presumption is that parties contract only for themselves and, thus, a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995); Howell v. Worth James Constr. Co., 259 Ark. 627, 535 S.W.2d 826 (1976). If a contract is made for the benefit of a third party, then it is actionable by such third party if there is substantial evidence of a clear intention to benefit that third party. Id. Furthermore, “[i]t is not necessary that the person be named in the contract, and if he is otherwise sufficiently described or designated, he may be one of a class of persons if the class is sufficiently described or designated.” Little Rock Wastewater Util., 321 Ark. at 307, 902 S.W.2d at 763 (citing Howell, 259 Ark. at 630, 535 S.W.2d at 829). With this in mind, we now turn to the present case.
In this case, Appellant was not a party to the insurance contract. The policy lists coverage of two individuals — Mr. and Mrs. Langley. Appellee is the other party to the making of that contract. The presumption is that the insurance contract was created to benefit only those parties listed. There is nothing within the contract that clearly indicates that the contract was also made for the benefit of a third party, such as Appellant. While it is true that Appellant is a member of a class of individuals — health-care providers — who would provide the services contemplated by the PIP policy, there is no reference to these providers within the policy itself. There is nothing to indicate that the Langleys or Appellee intended Appellant to be a third-party beneficiary. Consequently, he does not have standing to bring suit directly against Appellee for breach of contract.
Although there is no Arkansas law regarding whether a health-care provider has standing as a third-party beneficiary to bring suit against an insurance company, other jurisdictions have examined the issue. Those cases, as discussed below, involved similar fact patterns to the present case, and support the finding that a health-care provider is not an intended third-party beneficiary. The trial court relied upon one such case, Ludmer, 295 Pa. Super 404, 441 A.2d 1295. There, a doctor claimed third-party beneficiary status under an insurance contract after he provided services to the insured. The Pennsylvania Superior Court explained that the wording of the contract indicated that the “[obligation runs directly to the entitled, covered person” and in no way implied that the insurance company was obligated to pay out to a third party. Id. at 408, 441 A.2d at 1297. Consequently, the court found that a service provider did not become a third-party beneficiary “merely upon the allegation that he has rendered services to the insured and presented a bill for those services to the insurer.” Id. at 409, 441 A.2d at 1297.
Further support for the conclusion that a doctor is not a third-party beneficiary to an insurance contract is found in Parrish Chiropractic Ctrs. P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049 (Colo. 1994) (Parrish II). There, the Colorado Supreme Court held that “a private provider of chiropractic services which provided treatment to a patient insured under a No-Fault policy is not a third-party beneficiary of the No-Fault policy and thus is not entitled to recover in a direct action to enforce the terms of that policy.” Id. at 1051 (emphasis added) (citing Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 857 P.2d 540, 542 (Colo. Ct. App. 1993) (Parrish I)). There, as here, the health-care provider sought payment from the insurers as a third-party beneficiary to a PIP contract. The court relied upon two findings to reach its conclusion that the doctor was not a third-party beneficiary: (1) the doctor was “only one of many health care providers” that the insured could choose from, and (2) the doctor was “not obliged under any statutory scheme to provide medical treatment to” the insured individuals. Id. at 1056. Thus, the court concluded that the doctor was “only an incidental beneficiary of the [insurance company’s] PIP policy and, as such, [was] not entitled to recovery in a direct action to enforce the terms of that policy.” Id. at 1056-1057.
The present case is virtually identical to the Ludmer and Parrish cases. In both instances, there was no support for a finding that the health-care provider was an intended third-party beneficiary. In this case, Appellant was a member of a large class of health-care providers who could provide services to Mrs. Langley. There is nothing in the contract to indicate that he was an intended third-party beneficiary and, if anything, he was merely an incidental beneficiary who does not possess the right to bring a direct action against Appellee. Consequently, the trial court correctly granted Appellee’s motion to dismiss.
Affirmed.
The court based these findings upon two other cases. See Kelly Health Care, Inc. v. Prudential Ins. Co. of America, Inc., 226 Va. 376, 309 S.E.2d 305 (1983) (finding that a medical provider was only a potential and incidental, but never an intended, beneficiary of the insurance contract); United States v. Criterion Ins. Co., 198 Colo. 132, 596 P.2d 1203 (1979) (limiting its finding that the United States, acting as a health-care provider, had standing to bring suit against the insurance company to that specific fact pattern because it was the legislative intent that this provider be a third-party beneficiary). | [
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Annabelle Clinton Imber, Justice.
Appellant Denise Wilson (“Wilson”) and two of her sons, Charles Stevenson and Alphonso Wilson, were charged with capital murder for the murder of their landlord, William Cunningham. Wilson was convicted of capital murder and sentenced to life imprisonment. She now brings an appeal claiming that the trial court erred in refusing to give a non-model jury instruction and in denying her motions to suppress. We affirm.
The facts in this case are not disputed on appeal. On January 14, 2004, ninety-two-year old William Cunningham was found dead in the kitchen of his home. Police investigated the case as a homicide. An investigator on the case first made contact with Wilson during a canvass of the neighborhood. She originally identified herself as “Stephanie Stevenson” and told the investigator of two unknown individuals she had seen in the area on the night of Mr. Cunningham’s murder. On January 19, the investigator spoke with Wilson’s neighbor, Jackie Bunting, who witnessed an argument on the day of Mr. Cunningham’s death between Mr. Cunningham, Wilson, and her two sons. On January 20, the investigator returned to Wilson’s home and asked her and her son Charles to accompany him to the Sheriffs department for questioning. Wilson agreed to go and commented that she was glad to see the investigator because she believed her other son Alphonso might have been involved in the murder. Later that day, Wilson gave two taped statements. In the first statement, she said that her son Charles told her that he and Alphonso had killed Mr. Cunningham.
That afternoon, due to Wilson’s statement that her sons were involved in Mr. Cunningham’s murder, the police conducted a search of Wilson’s home and the surrounding property. The search revealed a bag of clothing in the woods near the Cunningham house. One of the items found in the bag was a small pair of shoes — shoes too small to be worn by Wilson’s sons. Moreover, the search of her house revealed papers with the name “Denise Wilson” on them. Until this point in the investigation, the police believed Wilson to be “Stephanie Stevenson.”
Later that day, the police officers confronted Wilson about using the name “Stephanie Stevenson.” She admitted that her name was “Denise Wilson,” at which point Miranda warnings were given to her. She then gave a second statement. In that statement, she said she was part of a plan to rob Mr. Cunningham, but that she had no intention of killing him. According to Wilson, her part in the intended robbery was only to act as the look-out. She also denied participating in the acts that caused Mr. Cunningham’s death.
Prior to trial, Wilson moved to suppress all of the statements she made to law enforcement officers. Those motions were denied by the circuit court, and the statements were introduced into evidence at trial. The circuit court also denied Wilson’s request that the court give a non-model jury instruction based on Ark. Code Ann. § 5-2-406 (Repl. 1997). The jury found Wilson guilty of capital murder, and she was sentenced to life imprisonment. Wilson now appeals the judgment of conviction. We have jurisdiction of this case as it is a criminal appeal where the sentence of life imprisonment has been imposed. Ark. Sup. Ct. R. l-2(a)(2) (2005).
For her first point on appeal, Wilson claims that the circuit court erred when it declined to give a non-model jury instruction on accomplice liability that incorporated the provisions of Ark. Code Ann. § 5-2-406. Instead, the circuit court instructed the jury on accomplice liability in accordance with the Arkansas Model Jury Instructions — Criminal:
AMI Crim. 2d 401
In this case the state does not contend that Denise Wilson acted alone in the commission of the offense of capital murder. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or who, with the purpose .of promoting or facilitating the commissions of an offense:
Solicits, advises, encourages, or coerces the other person to commit an offense; or
Aids, agrees to aid, or attempts to aid the other person in planning or committing an offense.
“Purpose.” A person acts with purpose with respect to this conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
AMI Crim. 2d 404
Mere presence, acquiescence, silence or knowledge that a crime is being committed in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore if you find that Denise Wilson was only present while a crime was being committed and did not have a legal duty to act, then she is not an accomplice.
In addition to the above-cited model jury instructions, Wilson proffered Ark. Code Ann. § 5-2-406 as a non-model jury instruction. Section 5-2-406 provides:
When two (2) or more persons are criminally liable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that is consistent with his own mental culpability or with his own accountability for an aggravating factor or circumstance.
Our case law is clear that a party is entitled to a jury instruction when it is a correct statement of law and when there is some basis in the evidence to support giving the instruction. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Moreover, a trial court is required to give a jury instruction if there is some evidence to support it. Id. A trial court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. Id.
One of the issues addressed by this court in Jones v. State, supra, is similar to the first point of error raised here. In the Jones case, the defendant proffered section 5-2-406 as a non-model jury instruction to be substituted in place of Arkansas Model Jury Instruction — Criminal 401. The trial court refused to give the requested non-model jury instruction. In affirming the trial court’s decision, we stated: '
This court has previously held that although [Ark. Code Ann. § 5-2-406] is a correct statement of the law, it is not a model jury instruction and, further, that it is unnecessary to give it when its substance is covered by other instructions. See Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990) (citing Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980)); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).
We do not view [section 5-2-406] as being relevant to this case. Section 5-2-406 addresses the situation where two or more defendants are charged and tried together and where the degree of each defendant’s culpability may differ. See, e.g., Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985) (no error in finding one codefendant guilty of being an accomplice to a lesser included offense while holding another guilty of the greater offense). Haire andjones were not tried together and so far as we know the liability of Haire has not been decided.
Jones v. State, 336 Ark. at 205, 984 S.W.2d at 439. Thus, we have limited Ark. Code Ann. § 5-2-406’s application to instances where two or more defendants are being tried together or where the criminal liability of the other codefendants has previously been decided. See Jones v. State, supra.
Here, Wilson was tried alone, and as far as we know, the liability of her two sons has not been decided. Accordingly, under our holding in the Jones case, the circuit court correctly refused to give the proffered non-model jury instruction based on Ark. Code Ann. § 5-2-406.
Despite this court’s decisions in Jones v. State, supra, and Branstetter v. State, supra, Wilson nonetheless cites the case of Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970), as authority for the proposition that section 5-2-406 may be given as a jury instruction where codefendants are not tried together. In the Bosnick case, Bosnick waited in the car while his codefendants robbed a store. The codefendants killed a police officer who had arrived at the scene of the robbery. The trial court refused to instruct the jury on any lesser degrees of homicide, and Bosnick was convicted of premeditated first-degree murder. We held that, under the circumstances, the trial court erred by failing to instruct on lesser offenses so that the jury could determine the degree of Bosnick’s culpability with respect to the murder. Id. at 852, 454 S.W.2d at 315. Notwithstanding Wilson’s argument to the contrary, Bosnick does not stand for the proposition that section 5-2-406 applies where codefendants are tried separately; rather, that case simply recognizes Arkansas’ departure from the model penal code, whereby an accomplice is liable to the same extent as his or her principal. In Arkansas, an accomplice is entitled to a jury instruction on the lesser-included offenses, allowing the jury to judge an accomplice’s mental state separately from that of his or her principal. Bosnick v. State, supra. Yet, section 5-2-406 is not applicable until a court determines whether “two (2) or more persons are criminally liable,” which necessarily means that this statute is not applicable until the criminal liability of the accomplice codefendants has been decided. Accordingly, we conclude that because Wilson was tried alone and because the criminal liability of Charles and Alphonso had not been determined as of the date of her trial, the circuit court correctly refused to give Ark. Code Ann. § 5-2-406 as a non-model jury instruction.
For her second and final point on appeal, Wilson argues that the circuit court erred in denying her motions to suppress the statements she made to law enforcement officers during their investigation of Mr. Cunningham’s death. Specifically, prior to trial, Wilson filed two motions to suppress the statements. Subsequent to the circuit court’s denial of those motions, Wilson filed a motion to reconsider. The circuit court orally denied the motion to reconsider, and the statements were later admitted at trial.
As set out earlier in this opinion, Wilson’s first statement was taken when a law enforcement officer approached her during an initial canvass of the neighborhood. In that statement, she originally identified herself as “Stephanie Stevenson” and told the investigator about two unknown individuals she had seen in the area on the night of Mr. Cunningham’s murder. The admission of this statement has not been challenged on appeal. On January 20, the investigator returned to Wilson’s home and asked her and her son, Charles, to accompany him to the Sheriffs office for questioning. Wilson agreed to go and commented that she was glad to see the investigator because she believed her other son, Alphonso, might have been involved in the murder. Later that day, Wilson gave two additional statements. In the first statement, she said that her son, Charles, told her that he and Alphonso, her other son, had killed Mr. Cunningham. After a search of the home and the surrounding area, the police confronted Wilson about using the name “Stephanie Stevenson.” She admitted that her name was in fact “Denise Wilson.” Thereafter, Miranda warnings were given to her. Wilson then proceeded to give a final statement. In that statement, she acknowledged that she was part of a plan to rob Mr. Cunningham, but that she had no intention of killing him. According to Wilson, her part in the intended robbery was only to act as the look-out. She denied any involvement in the acts that caused Mr. Cunningham’s death.
On appeal, Wilson advances three reasons why the circuit court should have suppressed the statements made on January 20:
First, officers failed to advise her, when they went to her home, that she did not have to speak with them, and thus violated the principles enunciated in State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). Second, Rule 2.2 of the Arkansas Rules of Criminal Procedure was violated when officers implied that [Wilson] would have to speak with them at some point, if not at that time. . . . Third, [the last statement] should be suppressed because in faffing to advise [Wilson] of Miranda warnings before asking any questions once he determined that she was a suspect, Lt. Dixon lured [Wilson] into making an unwarned admission followed by a warned admission in violation of Missouri v. Seibert, 542 U.S. 600 (2004).
In reviewing a trial court’s refusal to suppress a confession, we make an independent determination based on the totality of the circumstances. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The ruling will only be reversed if it is clearly against the preponderance of the evidence. Id. Any conflict in the testimony of different witnesses is for the trial court to resolve. Id. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Id. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id.
In determining whether a confession was voluntary, this court considers the following factors: age, education of the accused, lack of advice of constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). It must be demonstrated that the activity of the police had a particular effect upon the accused. Id. There must be an essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. Id. Thus, courts cannot speculate as to a defendant’s motivation for speaking or acting as he did without some sort of indication from the defendant himself. Id. The nexus between any conduct of the police, coercive or otherwise, and the statement given by the accused, must be established to consider the remedies that flow from the Miranda warnings. Id. The proper inquiry is whether the defendant’s will has been overborne or her capacity for self-determination critically impaired. Id. See also Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
Beginning with the first subpoint of her suppression argument, Wilson suggests that our recent decision in State v. Brown, supra, is authority for the proposition that the police were prohibited from approaching her at her home to discuss the investigation of Mr. Cunningham’s murder without properly advising her that she did not have to talk. In Brown, supra, we described the “knock and talk” procedure as follows:
The procedure has become fashionable as an alternative to obtaining a search warrant when police officers do not have sufficient probable cause to obtain a search warrant. What generally occurs is that several law enforcement officers accost a home dweller on the doorstep of his or her home and request consent to search that home. If an oral consent is given, the search proceeds. What is found by police officers may then form the basis for probable cause to obtain a search warrant and result in the subsequent seizure of contraband. It is the intimidation effect of multiple police officers appearing on a home dweller’s doorstep, sometimes in uniform and armed, and requesting consent to search without advising the home dweller of his or her right to refuse consent that presents the constitutional problem.
State v. Brown, 356 Ark. at 466, 156 S.W.3d at 726. The Brown court held that the Arkansas Constitution requires law enforcement officers to advise home dwellers of their right to refuse consent to search. Id. Clearly, in this case, the investigator did not return to Wilson’s home on January 20 for the purpose of requesting her consent to search the home; rather, he went to her house for the purpose of asking her and her son to go to the sheriff s office for questioning. In fact, no search of Wilson’s home occurred until a search warrant was obtained; that is, the police officers did not conduct a search of her home until they had sufficient probable cause to obtain a search warrant. Under these circumstances, we conclude that State v. Brown, supra, is inapposite.
In conjunction with her Brown argument, Wilson claims that the police violated Rule 2.2 of the Arkansas Rules of Criminal Procedure. Specifically, she asserts that the officers violated Rule 2.2(b) when they failed to advise her that “she was not legally obligated to talk to the officers at all.” Rule 2.2 states:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of the crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
Ark. R. Crim. P. 2.2 (2005). Under Rule 2.2, we have stated that an officer may approach a citizen much in the same way a citizen may approach another citizen and request aid or information. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Our case law has consistently held that Rule 2.2 authorizes an officer to request information or cooperation from citizens where the approach of the citizen does not rise to the level of being a seizure and where the information or cooperation sought is in aid of an investigation or the prevention of crime. Id.
With regard to an officer’s request that a person go to or remain at the police station for questioning, Ark. R. Crim. P. 2.3 provides as follows:
If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
Ark. R. Crim. P. 2.3 (2005). In interpreting Rule 2.3, we follow the Supreme Court’s holding in United States v. Mendenhall, 446 U.S. 544 (1980), that the question of whether or not one’s consent to accom pany police officers is voluntary or the product of duress or coercion is to be determined by the totality of the circumstances. Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002). In that same vein, we have recently reiterated our statement in the Shields case that “Rule 2.3 does not require an explicit statement that one is not required to accompany the police; rather, the police only need to take such steps as are ‘reasonable to make clear that there is no legal obligation to comply’ with the request to come to the police station.” Anderson v. State, 357 Ark. 180, 197, 163 S.W.3d 333, 341 (2004)(citing Shields v. State, 348 Ark. 7, 14, 70 S.W.3d 392, 395 (2002)).
Here, the testimony offered at the suppression hearing supports the conclusion that the officers made it reasonably clear to Wilson that she was not “legally obligated to furnish information or otherwise cooperate.” The officers did not display weapons or otherwise restrain Wilson. In fact, they made it clear she could go to the sheriffs office at her own convenience. Just as Rule 2.3 does not require an explicit warning by law enforcement that one is not required to accompany the police, the plain language of Rule 2.2 does not include a requirement that law enforcement give a warning that one is not legally obligated to furnish information. Likewise, the question of whether one’s consent to furnish information is voluntary, or the product of duress or coercion, must be determined under the same standard as that used for determining voluntariness under Rule 2.3 — the totality of the circumstances. Anderson v. State, supra; Shields v. State, supra.
Finally, Wilson states that the police violated the principle set forth by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004). In that case, the interrogating officer made a conscious decision to resort to an interrogation technique in which he would first elicit a prewarning statement from the defendant, then give the Miranda warnings, and then obtain a second statement that would be “ ‘largely a repeat of information . . . obtained’ prior to the warning.” Missouri v. Seibert, 543 U.S. at 606. The Supreme Court concluded that in such circumstances a midstream recitation of warnings after interrogation and unwarned confession rendered the Miranda warnings ineffective. Id. at 604. More specifically, as explained by the Supreme Court, “[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” Id. at 617.
The facts in this appeal are significantly different from the facts in Missouri v. Seibert, supra. In Seibert, the police elicited a confession, followed with the Miranda warnings, and then obtained a second statement from the suspect by covering the same ground a second time. Here, the statements given by Wilson before she was Mirandized did not implicate her in the murder of Mr. Cunningham; rather, her prewarning statements implicated her sons as suspects in the murder. It was only after the police confirmed her true identity as a result of information discovered during the search of her home and the surrounding area that Wilson became a suspect in the murder of Mr. Cunningham. At that point, the police Mirandized her, and she proceeded to give her first incriminating statement — that she was part of a plan to rob Mr. Cunningham, but that she had no intention of killing him. These facts differ markedly from Seibert, where the defendant incriminated herself prior to receiving Miranda warnings, and the second statement was merely an attempt to elicit those same statements lawfully. Accordingly, Seibert does not support Wilson’s argument that her postwarning statement should have been suppressed. We therefore affirm the circuit court’s denial of her motions to suppress.
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Wilson, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
Hannah, C.J., concurs.
Although Wilson suggests that Jones is distinguishable because that case involved a “charge of capital felony murder, not premeditated and deliberated murder,” we have previously held that, even when the charge is capital murder, Section 5-2-406 is not relevant where the defendant is tried alone. See Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001).
We recognize that the question of voluntariness and the question of knowing and intelligent waiver are distinct and separate inquiries. See Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). At issue here is the voluntariness of Wilson’s statements, not whether Wilson knowingly and intelligently waived her constitutional rights.
The State is mistaken in contending that this argument was not preserved for appeal and that, even if it was preserved, the trial court did not issue a ruling on this issue. Wilson raised Seibert in a motion to reconsider the motion to suppress, and the circuit court denied the motion orally.
In the transcript of the last statement, Wilson admits that Miranda warnings were given before she made the incriminating statement:
Officer: [Denise] After I, After I found out about that you told us what your real name was, I told you I wanted to talk to you about this homicide a little bit further, and I read you your rights is that correct?
Wilson: Yes Sir. | [
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Donald L. Corbin, Justice.
Appellants Glen Bashaw, Harold D. Goffin, Sr., and the Monticello Social Club, Inc., appeal the judgment and order of the Drew County Circuit Court finding that the Club was a public nuisance and enjoining its operation. The trial court further ordered the premises to be closed, unless and until it is demonstrated that compliance with the injunction has been made. On appeal, Appellants argue that the trial court erred in holding that (1) the activities of the Club constituted a public nuisance; and (2) the trial court had jurisdiction for the issuance of an injunction abating the operation of the Club as a public nuisance. This case comes to us by certification from the court of appeals; thus, jurisdiction is proper under Ark. Sup. Ct. R. l-2(b)(l) and (b)(4), as this case involves an issue of first impression and substantial public interest. We find no error and affirm.
Appellant Goffin is the operator of the Club, a non-profit corporation. The Club is licensed by the Arkansas Alcohol Beverage Control Board (ABC) as a private club. The Club is located at 111 North Conley Street, Monticello, Arkansas, on property owned and leased by Appellant Bashaw. The Club has been the site of numerous alcohol-related violations, as well as other criminal activity. Specifically, ABC Agent Roger Archie testified that Goffin and the Club had been cited for multiple violations, fined $500.00, suspended for two weeks, and placed on probation. These violations include the selling of unauthorized alcohol; selling alcohol in unauthorized containers; allowing minors on the premises without food service; gambling on the premises; and allowing an unauthorized weapon. Archie further testified that during the Club’s suspension, the Club continued to violate the rules by dispensing alcohol, failing to cooperate with law enforcement, and failing to be a good neighbor by allowing altercations on the premises.
In addition to the ABC violations, on February 14, 2003, the Monticello Police Department executed a search warrant and raided the Club. The police found club patrons engaged in a dice game for money. The police seized $7,172.25 and arrested Goffin for operating a gambling house. Following Goffin’s arrest, Bashaw terminated the Club’s lease but he has allowed the Club to continue using the premises on a month-by-month basis.
Lastly, the Club has been the site of at least forty disturbances, ranging from vandalism to theft to homicides. Based upon the alcohol violations, the gambling, and the numerous public disturbances, the State filed a complaint for abatement of a nuisance. On February 19, 2004, the trial court issued an order finding that the operation of the Club constituted a public nuisance, enjoining Goffin from operating the Club, and finding that Bashaw has the obligation to not knowingly allow illegal activity to occur on his property. This appeal followed.
I. Public Nuisance
Appellants’ first argument can be broken down into three sub-parts: (1) that the Club is not a public nuisance; (2) that Bashaw, an owner of the premises who is not a participant in the alleged misconduct, cannot be subject to an injunction; and (3) that the allowance of police investigation reports was hearsay. We initially note that the hearsay argument is not preserved for appeal, because the objection was withdrawn below. This court has held that when an objection is withdrawn, it is as though the objection was never made. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). This court will not consider arguments raised for the first time on appeal. Id. Consequently, we will not address the hearsay argument.
Appellants’ public nuisance argument is essentially a challenge to the sufficiency of the evidence to support the trial court’s finding. Specifically, they challenge the trial court’s finding that the operation of the Club was a common-law public nuisance.
This court has repeatedly held that the operation of a gambling house is a public nuisance. See Masterson v. State, 329 Ark. 443, 949 S.W.2d 63 (1997); Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943). Additionally, this court has found that the illegal sale of alcohol is a public nuisance. Click v. State, 206 Ark. 648, 176 S.W.2d 920 (1944). There, this court found that even if an appellant is not convicted of the unlawful sale of alcohol, “it does not follow that his place of business did not become a nuisance for other unlawful practices and conduct, as disclosed by the evidence.” Id. at 652, 176 S.W.2d at 922. Moreover, a public nuisance can exist where the place of business or activities that occur on the premises constitute a threat to public health and safety. See Masterson, 329 Ark. 443, 949 S.W.2d 63; State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). In reviewing the trial court’s decision, we will not reverse its findings and conclusions unless they are clearly erroneous. Masterson, 329 Ark. 443, 949 S.W.2d 63. With this in mind, we now turn to the present case.
In the present case, the trial court based its finding that the Club constituted a public nuisance upon a multitude of factors. Specifically, the trial court found that the Club was (1) unlawfully selling and dispensing alcoholic beverages; (2) permitting organized gambling on the premises; (3) selling alcohol in half-pints; (4) allowing minors into the Club; (5) selling alcohol for a flat fee; (6) allowing a shotgun to be accessible to patrons; and (7) advertising free alcohol. The court also noted that the Club and its immediate area have been the scene of numerous disturbances and breaches of the peace. Relying on this evidence, the court concluded that this unlawful activity in and around the Club constituted a threat to public health and safety and, thus, the Club was a public nuisance. This evidence is more than sufficient to support the trial court’s finding that the Club was a public nuisance.
Appellants’ remaining argument is that the trial court could not include Bashaw in its injunction because he was simply the owner of the premises and not a participant in the activities that created the public nuisance. While there is no Arkansas law directly on point, other jurisdictions have faced the issue of allowing an injunction in cases such as this.
In Armory Park Neighborhood Ass’n v. Episcopal Community Servs., 148 Ariz. 1, 712 P.2d 914 (1985), the Arizona Supreme Court explained that “[u]nder general tort law, liability for nuisance may be imposed upon one who sets in motion the forces which eventually cause the tortious act; liability will arise for a public nuisance when ‘one person’s acts set in motion a force or chain of events resulting in the invasion.’ ” Id. at 7, 712 P.2d at 920 (quoting Restatement (Second) of Torts § 824 cmt. b). Furthermore, in Packett v. Herbert, II, 237 Va. 422, 377 S.E.2d 438 (1989), the Virginia Supreme Court explained that property owners “cannot avoid responsibility for the maintenance of a nuisance upon or near their property” because the activities complained of were not their own. Id. at 425, 377 S.E.2d at 441. These two cases indicate that an owner, even though not a party to the nuisance activities, can be enjoined by the court to abate a nuisance. See also City of Rochester v. Premises Located at 10-12 South Washington Street, 180 Misc.2d 17, 687 N.Y.S.2d 523 (1998) (finding that the fault of the owner is not an issue if a nuisance is found to exist).
These cases indicate that a property owner, such as Appellant Bashaw, can be enjoined from allowing the public nuisance activities to continue on the premises. Furthermore, the evidence in the present case indicates that Bashaw was at least aware of some of the activities occurring at the Club. Specifically, he spoke to the Monticello Chief of Police and received information about complaints filed against the Club. He also was aware of the gambling charges filed against Goffin, and although he can-celled the lease, he allowed the Club to continue operating on the premises. Thus, it is clear that he was at least knowledgeable of the activities surrounding the Club. Accordingly, the trial court did not err in finding that the Club constituted a public nuisance and in enjoining Bashaw as the owner.
II. Jurisdiction
For their second point of appeal, Appellants claim that the trial court erred when it held that it had jurisdiction to issue an injunction for the abatement of nuisance activities that also constitute a crime. This court has repeatedly held that equity has always had the authority to abate a public nuisance. Masterson, 329 Ark. 443, 949 S.W.2d 63; State v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945). When dealing with an activity that is criminal, as well as a nuisance, this court has found that there are narrow circumstances in which equity will enjoin the activity. Masterson, 329 Ark. 443, 949 S.W.2d 63; Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990). Specifically, “equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the public nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief.” Karston, 208 Ark. at 712, 187 S.W.2d at 331. See also Masterson, 329 Ark. 443, 949 S.W.2d 63.
In this case, the trial court correctly found that the Club was a public nuisance. As such, it had jurisdiction to issue an injunction in order to abate the nuisance. While it is true that the illegal activities, i.e., gambling and liquor law violations, could be remedied through the criminal courts, it is clear from the evidence that this would be an inadequate and incomplete remedy. Specifically, Goffin, as operator of the Club, does not appear to be deterred from continuing to engage in the illegal activities. As demonstrated by Agent Archie’s testimony, Goffin continued to violate the Alcohol Control Act during the Club’s suspension by dispensing alcohol. Additionally, shortly before trial, Archie wrote up Goffin and the Club for failure to cooperate with law enforce ment and failure to be a good neighbor by allowing altercations on the premises. This failure to comply with the conditions of the administrative sanctions against it demonstrates that the remedies in place do not deter Goffin and the Club from continuing to engage in these criminal activities. The trial court said it best: Goffin is contemptuous of criminal laws and therefore the remedy at law is ineffectual.
Finally, the State claims that the problems with the Club were broader in scope than the criminal prosecution for gambling activity, thus warranting the civil-nuisance-abatement action. The trial court clearly agreed with the State and found that the Club was a public nuisance on many levels, both criminal and as a threat to public health and safety. Consequently, the trial court properly found that it had jurisdiction to abate the nuisance, and the Club’s argument is without merit.
Affirmed.
Although the trial court based its decision on common-law public nuisance, it noted that the illegal sale of alcohol also statutorily constitutes a public nuisance. Ark. Code Ann. § 16-105-204 (1987). Within this chapter, the jurisdiction to abate this public nuisance is also given. Ark. Code Ann. § 16-105-205 (Supp. 2005). | [
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Per Curiam.
Appellant Lorenzo Benitez, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Thomas H. Johnson, states in the motion that the record was tendered late due to a mistake on his part.
This court clarified its treatment of motions for rule on the clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney fifing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Johnson has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Tom Glaze, Justice.
In this child-custody case, this court is asked to review the decision of the circuit court modifying custody based on a determination that there had been a substantial change in circumstances. Appellant Nina Alphin Surber (Nina) and appellee David Paul Alphin (Paul) were married in July of 1997; the couple had a daughter, Megan, in January of 1998. Nina and Paul divorced on June 3,1999. In the divorce decree, the chancellor found that both Nina and Paul were fit parents, and awarded joint custody of Megan to both parents. However, the court awarded primary physical custody of Megan to Nina; Paul was granted visitation for one week a month, plus two separate three-week periods each summer, and one week each Christmas holiday. The trial court held that Paul should not be required to pay child support at the time of the divorce, and ruled that each party was responsible for the payment of their own attorney’s fees and costs.
On January 7, 2003, Paul filed a petition for modification of the custody decree. In his petition, he alleged that, since the date of the decree, there had been a substantial change of circumstances that warranted awarding him sole custody. Following a hearing on Paul’s petition, the trial court concluded that such a substantial change of circumstances had occurred, and entered an order on September 24, 2003, placing custody with Paul. Nina filed a timely notice of appeal, and appealed to the court of appeals. The court of appeals affirmed the trial court, see Alphin v. Alphin, 363 Ark. 566, 215 S.W.3d 586 (2005), and Nina petitioned this court for review, which we granted.
When this court grants a petition for review of a decision by the court of appeals, we review the appeal as though it had originally been filed in this court. Jones v. Billingsley, 363 Ark. 96, 211 S.W.3d 508 (2005); Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). In reviewing cases that traditionally sound in equity, we consider the evidence de novo, but will not reverse a trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004); Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Hamilton, supra.
At the hearing on Paul’s petition to modify custody, the trial court heard the following evidence. Nina’s first marriage was to Sean Zoerner. Nina and Sean, who divorced in 1994, had two children, Tyler and Kristen. Nina later married Paul in July of 1997; they had Megan in January of 1998, and divorced in 1999. Following their divorce, Nina moved to Tyler, Texas, where she lived with a boyfriend, Rob Stephens, from the spring of 1999 until the fall of 1999. In the fall of 1999, Nina and Rob broke up, and Nina called her former mother-in-law, Bessie Makepeace, to come pick her up in Texas. Bessie went to get Nina and Megan, and brought them back to El Dorado, where Nina and Megan resumed living with Paul from November of 1999 until March of 2001. During this time, Nina and Paul discussed reconciling, and even became engaged to be remarried, but the relationship failed again.
In March of 2001, Nina moved to Milford, Illinois, with Megan, where they first lived with Nina’s sister until Nina could find a place of her own, which was an apartment where she and Megan lived for almost a year. Nina subsequently found a larger duplex and she and Megan moved again. In July of 2002, Nina’s boyfriend, Todd Surber, moved in with Nina and Megan. Todd was the chief of police in Milford at that time. Nina, Megan, and Todd moved into yet another apartment about three or four months after they began living together. Todd was later hired as a patrol officer in Paxton, Illinois, about thirty-five miles away from Milford. His new job involved a pay raise and additional benefits, including insurance that would cover Megan.
Nina and Todd began discussing marriage, and decided to get married in late September of2003. However, when they found out about the date of the custody hearing, they changed their wedding date to September 3, 2003, two days before the hearing. Both Nina and Todd testified at the custody hearing that they moved up the wedding because they believed the court would “frown upon [them] not being married,” but both asserted that they would have gotten married anyway, and the only thing changed as a result of the hearing was the timing.
Meanwhile, on September 10, 2002, Paul Alphin married his new wife, Michelle, who was three months’ pregnant with Paul’s child; that child, a daughter named Breanna, was born in February of 2003. Michelle also has two children from her former marriage to Bruce Darden, and these two boys live with Michelle, Paul, and Breanna in a three-bedroom trailer in El Dorado. Michelle testified that, although there would be room for Megan if they were able to get custody, they would probably buy a larger trailer with four bedrooms.
The trial court heard additional testimony about Nina’s background and relationships. Nina testified that she had lived with her boyfriend, Rob Stevens, in Texas from the spring of 1999 to the fall of 1999, and that they engaged in sexual activity when Megan was in the home, although not in the same room. Nina stated that she saw nothing wrong with that conduct. She also averred that she believed it was okay to live with Todd Surber out of wedlock in the presence of her daughter, because they lived together as a couple. Nina denied that she only married Todd because of the court’s disapproval of their living arrangement, stating that they had planned for months to get married in late September, and only moved the wedding date up when they learned the date of the hearing.
Regarding her employment, Nina testified that prior to her moving to Illinois, she worked at Wal-Mart in El Dorado. In March of 2001, she took a transfer to a Wal-Mart in Illinois so she could be closer to her home. Nina worked at that Wal-Mart for about five months, then took a job working full time at a Dairy Queen. After working briefly at a convenience store, Nina began working as a waitress at a restaurant; her schedule varied from week to week, and she generally worked Friday and Saturday nights. Todd, a police officer, worked different shifts from month-to-month, but he would come home every night, regardless of his schedule, to tuck Megan in. Nina noted that if neither she nor Todd could be home to take care of Megan, Nina’s mother would look after the child. When Nina had to work nights, her mother would keep Megan; if Nina did not get off until after Megan’s bedtime, Nina’s mother would take Megan home, put her to bed, and wait for Nina to come home from work. Nina also agreed that she and Todd were going to have to move from Milford, Illinois, to Paxton because of Todd’s job there.
Nina also discussed her relationship with her two children from her first marriage to Sean Zoerner. She conceded that it had been over two years since she had seen those children, but explained that Sean refused to let her see them. When questioned about her opinion of Paul’s ability to care for Megan, Nina said that he was a good father, but she also asserted that Paul had not provided medical insurance for Megan, nor had he paid for half of the child’s medical bills, as he was required to do under the divorce decree. Of Megan’s relationship with Todd, Nina said that Todd helped Megan with her schoolwork and taught her how to write her name; Nina stated that Megan would “love on” Todd, and that they would go for bike rides and walks together. Nina also claimed that Megan got along well with Todd’s child from his first marriage (although Todd did not have custody of that child, a ten-year-old son who lived with his mother in St. Louis).
Upon re-direct examination, Nina asserted that she thought her conduct of living with two separate men out of wedlock “was okay,” and that if Megan told her that she wanted to live with her boyfriend, she would tell her daughter that she was an adult and that it was her decision to make. She also pointed out that Paul had never voiced an objection to her living with Todd.
Other witnesses also testified about the circumstances and events that had transpired since the initial custody order had been entered. Paul’s mother, Bessie Makepeace, testified about Nina’s abilities as a parent. Bessie stated that sometimes Nina was fine, “but she was not very patient” and sometimes was “not careful about what she would say in front of Megan.” Bessie asserted that she believed Paul’s home provided a more stable environment and more structure for the children.
Michelle Alphin testified that she and Paul did not live together prior to their marriage, although she conceded that she was three months pregnant with Paul’s child when they married. Michelle, who was employed at a hair and nail salon in El Dorado, stated that her hours varied, but she tried to get off early to pick the children up from school every day. She further said that Megan and her two children from her first marriage got along very well, and that Megan would have her own room if she came to live with Michelle and Paul. On cross-examination, Michelle agreed that Paul initiated the change-of-custody petition only after Nina sought child support from him, saying that the child-support petition was “one of the factors that caused him to file for custody.”
Paul Alphin also testified at the hearing. He agreed that he never voiced an objection when Nina was living with Rob Stevens in Texas or with Todd Surber in Illinois. However, he claimed that he did, in fact, object to it. Paul asserted that the reason he sought the change of custody was that he had been having difficulty seeing Megan at the appointed times for visitation; he also noted that Nina had moved so many times in recent years, and stated that he “just [felt] that Megan would be better off in a more stable environment[.]” Paul noted that he still lived in the same location as he had at the time of the divorce. Paul agreed that Nina loved Megan, but said it was “hard to say if she does the best she can for her.”
The next witness at the hearing was Todd Surber. Todd recalled meeting Nina about three years prior to the hearing, and said that they had dated continuously until they married. He noted that he had spent some nights with Nina before they moved in together in July of 2002, but asserted that they never had sexual relations in Megan’s presence. On cross-examination, Todd agreed that, when they moved to Paxton for his new job, it would be the fourth move for Nina and Megan since they had moved to Illinois. Todd also conceded that he did not see anything morally wrong with living with Nina out of wedlock, stating that he did not believe Megan was affected in any way by his and Nina’s living arrangements. He also stated that he and Nina got married because he “thought it would please the judge,” although he said they had been planning on marrying for months.
In deciding to award custody to Paul, the trial court relied primarily on the “illicit sexual relationship” between Nina and Todd prior to their marriage. The court ruled from the bench as follows:
[Nina] readily admits her cohabiting with Rob Stevens in Texas and Todd Surber in Illinois without the benefit of marriage. Both she [and] her new husband, Mr. Surber, . . . announce that they see nothing wrong with this. ... [T]he courts in the State of Arkansas . . . look upon such conduct as nothing short of an illicit sexual relationship. The recent marriage of [Nina] to [Todd] is nothing but a ruse. Both she and her husband have said as much. Both she and her husband have told us today that they did this at this point in time so it would not look bad.... Whether or not [Paul] objects to the illicit sexual relationship of his ex-wife is irrelevant. Simply engaging in such a relationship constitutes a change of circumstances in this state sufficient for the court to make such a finding of change of circumstances, and this goes without even considering the number of moves and whether or not there have been some problem with visitation, or even whether the dysfunctional relationship that [Nina] has with her children by Sean Zoerner should be considered. So, I am not even going to go there. Simply, the relationship is sufficient for me to get to what is in the best interest of Megan. When I view the fife styles over the last several years of the parties, and particularly, their stability and most importantly, what I heard today about their availability, then I can reach no other conclusion but that it would be in Megan’s best interest that she be placed with her father.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Hamilton, 337 Ark. at 466; Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reasons for requiring these more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child, and to discourage the repeated litigation of the same issues. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). The party seeking modification has the burden of showing a material change in circumstances. Campbell, 336 Ark. at 384.
It is true that this court and the court of appeals have held that extramarital cohabitation in the presence of children “has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a material change of circumstances warranting a change of custody.” Word v. Remick, 75 Ark. App. 390, 396, 58 S.W.3d 422, 427 (2001); see also Hamilton v. Barrett, supra; Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003) (noting that this court has held that “a parent’s unmarried cohabitation with a romantic partner, or a parent’s promiscuous conduct or lifestyle, in the presence of a child cannot be abided”); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001).
In addition, we may consider other testimony and conclude that there was sufficient evidence to support the trial court’s transfer of custody. See Campbell v. Campbell, supra; Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). In addition, we can affirm the trial court when it has reached the right result, even though it has announced the wrong reason. See, e.g., Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002). As noted previously, a judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). In this case, there was evidence of changed conditions that the trial court could not have known at the time of the original custody order. Specifically, at the time of the initial decree, the court was unaware that Nina would have six or seven different residences in the span of six years. By contrast, Paul had lived in the same home since the time of the parties’ divorce.
There was also testimony regarding the stability of Paul and Michelle’s schedules and their ability to establish a regular routine around picking the children up from school and being home when they went to bed. For example, Michelle testified that she made a point of leaving work every day in time to pick the children up; Paul’s mother, Bessie Makepeace, testified that the children in Paul and Michelle’s home had a regular routine and a fixed schedule. Nina testified that neither she nor Todd had a fixed schedule, and she agreed that there were nights when neither of them was able to be home at Megan’s bedtime.
In sum, there was sufficient evidence regarding the lack of stability that had developed in Megan’s life on which the trial court could conclude that the circumstances had changed since the original decree and custody order. It is true that this court has held that a change of circumstances of the noncustodial parent, including a claim of an improved life because of a recent marriage, is not sufficient, standing alone, to justify modifying custody. See Jones v. Jones, 326 Ark. at 490. However, a noncustodial parent’s remarriage may be considered as a factor in determining whether there has been a sufficient change in circumstances affecting the best interest of the child. See Hamilton, 337 Ark. at 467-68 (limiting Jones to the facts of that case ); see also Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). Here, not only has Paul remarried and developed a stable family life, but Nina has, during the same time period, moved frequently and has been unable to establish a regular schedule and routine for her daughter. Paul, on the other hand, has maintained a stable environment that has been enhanced by his remarriage. Given the facts of the case, we affirm the trial court’s order changing custody of Megan from Nina to Paul.
Dickey, J., dissents.
Sean testified that he had made no efforts to keep Nina from seeing her children, and that it was Nina who had not attempted to contact them.
It should be noted, however, that the Hamilton case and the 2001 Taylor case involved situations where the divorce decree and custody agreement contained a specific order by the chancellor that the custodial parent should not allow members of the opposite sex to stay overnight in his or her home when the children were present. See Hamilton, 337 Ark. at 463; Taylor, 345 Ark. at 304 (noting that the trial court had used the non-cohabitation restriction as a material factor in considering custody issues). The trial court made no such non-cohabitation order in the instant case.
The Hamilton court noted that, in Jones, there was evidence that the noncustodial parent’s remarriage was reasonably contemplated at the time he entered into the custody agreement and, thus, could not have constituted a change in circumstances arising since the entry of the prior order. Hamilton, 337 Ark. at 468. | [
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Donald L. Corbin, Justice.
Appellant Jerry James Ellis appeals the jury verdict and order of the Pulaski County Circuit Court convicting him of rape, burglary, and terroristic threatening. As a result of his convictions, and pursuant to the trial court’s finding that he was a habitual offender, Appellant was sentenced to life imprisonment on the rape charge, fifteen years’ imprisonment on the terroristic threatening charge, and forty years’ imprisonment on the burglary charge. On appeal, he raises three arguments for reversal: that the trial court erred when it failed to (1) grant his motion for directed verdict on the rape charge when there was insufficient evidence of “forcible compulsion”; (2) grant his motion for directed verdict on all charges against him when there was insufficient evidence as to the identity of the alleged attacker; (3) suppress the pretrial identification of the appellant when the procedure used for conducting the identification involved a photograph of only one person, the person making the identification was not the victim, and the detective did not retain the photograph used for identification purposes. Because Appellant received a fife sentence, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm.
S.A., the victim, is a fifty-six-year-old woman who has serious problems with her legs and, consequently, has trouble getting around. At around 7:30 a.m. on December 24, 2002, S.A. heard a knock at her Lynn Lane apartment door. When she answered the door, a black male, later identified as Jerry James Ellis, asked to use her phone to call a cab. S.A. testified that when she let him in, he grabbed her by the throat, took her into her bedroom, and threw her on the floor. She screamed for one of her neighbors, but he told her to “shut up” and that “he would kill [her]” if she did not. She explained that she was scared to death. He then took off both of their clothes. She explained that while he was taking off his clothing, she was on the floor and could not get up because of her legs. After he finished undressing them both, he forcibly had sex and oral sex with S.A. She testified that “He just, he stuck — He stuck it in.” After he was finished, he went into the bathroom and cleaned himself up. Then, he helped up S.A. and told her to clean herself up. At that time, S.A. noticed she was bleeding. The man then wiped things down in the apartment and asked to use the phone again. Before leaving, he told her that if she called the police, “I will come back to get you or one of my friends will.”
After he left her apartment, she went to her window and motioned for her neighbor, Pamela Holland, to come over. S.A. told Holland that she had been raped, and Holland convinced S.A. that she needed to call the police. After the police came, they told her that she needed to go to the hospital. An ambulance arrived and took S.A. to the hospital. At the hospital, S.A. was examined by Lori Farmer, a registered nurse. Nurse Farmer testified that she spoke to S.A. about the rape and performed the rape exam. After the exam was finished, it was sent to the police.
Another neighbor, Lindsey Carter, testified that he was in his apartment when he heard an EMT vehicle and police vehicles outside his window. He explained that when he stepped outside and asked other neighbors what had happened, he learned that S.A. had been hurt. At that time, Carter approached the police to tell them about an earlier encounter with a suspicious man. Carter explained that earlier that morning he was approached by a man, who asked him questions about where a white lady stayed and pointed in the direction of S.A.’s apartment. Carter said that he told the man he did not know, but that he knew the man was pointing in S.A.’s direction. He told police that he could identify the man if he saw him again. A few days later, Officer David Pettit visited Carter and showed him a picture of Appellant’s identification card. Carter identified the man in the picture as the man that approached him the morning of the rape.
Additionally, Mary Robnett, a forensic biologist at the Arkansas State Crime Lab, testified that she performed DNA analysis of the rape kit on November 24, 2003, using known samples from S.A. and Appellant. She stated that she was able to make a match of the DNA from Appellant to the DNA found in S.A.’s underwear and vagina.
At the close of the State’s case, Appellant moved for a directed verdict. The trial court denied this motion. Appellant then testified that he had visited S.A. between 9:00 p.m. and 10:00 p.m. on the night of December 23, 2002. He claimed that S.A. owed him some money, but that she did not have any. Because she did not have the money, he stated that he exchanged consensual sex for “dope,” as he had on other occasions with S.A. Appellant claimed that this was the reason that his DNA was found, but that he did not talk to or visit Carter or S.A. on December 24th. After Appellant’s testimony, he renewed his motion for directed verdict. This was again denied. The jury then returned a verdict finding Appellant guilty of rape, residential burglary, and terroristic threatening. This appeal followed.
I. Forcible Compulsion
Appellant argues that the trial court erred in denying his motion for a directed verdict on the rape charge. Specifically, he claims that there was insufficient evidence of “forcible compulsion” as required by Ark. Code Ann. § 5-14-103(a)(l)(A) (Supp. 2001).
This court has repeatedly held that motions for a directed verdict are treated as challenges to the sufficiency of the evidence. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005); Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003); Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. Circumstantial evidence can be used to provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001). On appeal, this court reviews the evidence in the light most favorable to the appellee and considers only the evidence that supports the verdict. Id.
As noted above, Appellant was convicted of rape by forcible compulsion. Section 5-14-103(a)(l)(A) states: “A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: ... By forcible compulsion.” “ ‘Forcible compulsion’ means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Supp. 2001). This court has defined physical force as “ ‘any bodily impact, restraint or confinement, or the threat thereof.’ ” Sublett, 337 Ark. at 377, 989 S.W.2d at 912 (quoting Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998)). The test this court uses to determine if there was physical force is “ ‘whether the act was against the will of the party upon whom the act was committed.’ ” Sublett, 337 Ark. at 377, 989 S.W.2d at 912 (quoting Freeman, 331 Ark. at 133, 959 S.W.2d at 401). Furthermore, this court has continually held that a rape victim’s testimony alone is sufficient and is substantial evidence to support a rape conviction. See Martin, 354 Ark. 289, 119 S.W.3d 504; Sublett, 337 Ark. 374, 989 S.W.2d 910. With this standard in mind, we now look to the present case.
In this case, S.A. testified that she was raped by a black male who came to her apartment door asking to use the telephone. She explained that he grabbed her around the throat, took her into the bedroom, and pushed her onto the floor. When she screamed for one of her neighbors, he told her to shut up and that he would kill her if she did not. It was at this time that the attacker forced her to have sex and oral sex with him. After the attack was over, he told her that if she called the police, he or one of his friends would come back and get her. Moreover, she stated that she was afraid he would kill her if she did not do as he said.
The events described by S.A. are more than sufficient to maintain the element of forcible compulsion. As this court has repeatedly held, the uncorroborated testimony of a rape victim alone is substantial evidence of guilt. In this case, S.A.’s testimony indicates that the acts occurred against her will. Consequently, Appellant’s argument that there is insufficient evidence to support a finding of forcible compulsion necessary to sustain a rape conviction is without merit.
II. Identity
Next, Appellant again claims that the trial court erred in denying his motion for directed verdict on all charges. In this instance, he argues that there was insufficient evidence as to the identity of the alleged attacker, thus mandating that the convictions be overturned. As noted above, this court has repeatedly held that motions for a directed verdict are treated as challenges to the sufficiency of the evidence. Hall, 361 Ark. 379, 206 S.W.3d 830; Martin, 354 Ark. 289, 119 S.W.3d 504; Sublett, 337 Ark. 374, 989 S.W.2d 910.
While Appellant claims that there was insufficient evidence as to the identity of the alleged attacker, he cited no authority which supports his contention but rather focuses on the person who made the identification. Appellant contends that since S.A. never identified him as the attacker and since Carter could not place Appellant in S.A.’s apartment, there is not sufficient evidence to support all of his convictions. Furthermore, Appellant attempts to rationalize why and how his DNA was found in S.A.’s underwear and vagina. He explains that on December 23, 2002, the night before the attack, he and S.A. engaged in consensual sex and oral sex. Thus, according to Appellant, it was because of these consensual acts prior to the morning of the rape that his DNA was found by the rape exam performed by Nurse Farmer. Appellant’s argument is without merit.
This court has consistently accepted DNA evidence as proof of guilt. Engram, 341 Ark. 196, 15 S.W.3d 678. Furthermore, “[w]hile the DNA evidence is substantial standing alone, it is undeniably sufficient when considered with the additional circumstantial evidence adduced at trial.” Id. at 202, 15 S.W.3d at 681. In this case, the State produced DNA evidence identifying Appellant as the contributor of the sperm found in S.A.’s person and underwear. This alone is sufficient evidence identifying Appellant as the attacker.
Additionally, the State offered testimony linking Appellant to the vicinity in which the crimes occurred. Carter testified that about an hour or two before the rape, Appellant was suspiciously hanging around the Lynn Lane apartments. Carter testified that the following interaction between himself and Appellant took place:
Q. Okay. This individual started asking you questions?
A. Yes, ma’am
Q. And what did they ask you?
A. He asked me did I know where a white lady stayed at over here.
Q. Okay.
A. I told him no.
A. And then he asked me again. This time when he asked me he pointed, and he pointed towards where she stayed at.
Q. And who are you referring to?
A. [S.A.]
Q. Okay. So, he’s pointing to where she stays?
A. Yes, ma’am.
After this exchange, Carter entered his own apartment. Shortly thereafter, S.A. was raped.
After hearing police cars outside his window and learning from neighbors that S.A. was hurt, Carter approached the police and told them about a suspicious guy asking about her. Furthermore, he said he could identify this man if he saw him again. A few days later, Carter was shown Appellant’s identification photo by Officer Pettit. Carter stated that the man in the photo was the man asking about S.A. Carter’s identification places Appellant in the vicinity of the crime. This, coupled with the DNA evidence, is more than sufficient to support a finding that Appellant was the attacker. Thus, the trial court did not err in denying the motion for directed verdict.
III. Suppression of Pretrial Identification
For his final point of appeal, Appellant argues that the trial court erred by denying his motion to suppress the pretrial identification of Appellant. Specifically, he argues that Carter’s identification of him was a result of an unduly suggestive, police-orchestrated identification procedure. Nevertheless, we cannot examine Appellant’s argument because it was not preserved for appellate review.
This court has held that a challenge to an out-of-court photographic identification is not preserved for review where, despite challenging the photo identification prior to trial, the appellant failed to object to the victim’s in-court identification. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003). Furthermore, “[t]o preserve a challenge to a pretrial photographic identification, we require a contemporaneous objection to in-court identification at trial.” Id. at 363, 123 S.W.3d at 893. There, as here, the defendant made a motion to suppress the photo identification which was denied during a pretrial hearing. However, because Lewis did not object to the in-court identification at trial, this court found that the argument was procedurally barred. Similarly, in this case, Appellant did not object during the trial to Carter’s testimony nor to Officer Pettit’s testimony regarding the photo used for identification. Consequently, just as in Lewis, this point of appeal is procedurally barred.
Lastly, because this argument is barred from review, Appellant’s constitutional arguments regarding the identification procedure are moot and we decline to address them. See Lewis, 354 Ark. 359, 123 S.W.3d 891.
IV 4-3 (h) Review
In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for adverse rulings objected to by the Appellant but not argued on appeal. No reversible errors were found.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant Regions Bank appeals from the judgment of the Union County Circuit Court denying its motion for a new trial on the inadequacy of damages awarded on its fraud claim against Appellee Todd Griffin. Regions argues that the undisputed proof showed that it was entitled to damages in the amount of $2,608,216.12 and that, accordingly, the trial court erred in upholding the jury’s award of only $10.00. Regions had initially also appealed the judgment upholding the jury’s vetdict in favor of separate Appellees Faith Forest Partners, L.P.; Griffin Chipping, Inc.; Faith Forest Products, Inc.; J.L. Griffin; Billy Griffin; Mike Griffin; Jerry Griffin; Gary Griffin; and Ricky Griffin. One of the points in that appeal was whether the trial court erred in admitting into evidence a suspicious activity report filed by Regions as mandated by federal banking laws. Our jurisdiction was pursuant Ark. Sup. Ct. R. l-2(b)(5), as the appeal presented a significant issue oflaw requiring further development or clarification. Prior to the appeal being submitted, however, we granted Regions’s motion to dismiss the appeal against the separate Appellees. The remainder of the appeal is solely against Appellee Todd Griffin, who has elected not to file a brief or otherwise make an appearance in this court. We affirm.
At the heart of this case are a series of unauthorized draws on a line of credit secured by Griffin Chipping, Inc., and Faith Forest Products, Inc., collectively “the chip mill,” from Regions in March 2000. Corporate resolutions for the chip mill, which were made part of the loan agreement, provided that three people were authorized to make draws on the line of credit: J.L. Griffin, CEO; Billy Griffin, President; and Kevin Martin, Secretary and Treasurer. On five separate occasions beginning in late June and continuing through late July 2000, Appellee Todd Griffin made draws on the chip mill’s line of credit totaling $2,608,216.12. Todd is the son of Billy Griffin and the nephew ofJ.L. Griffin. At the time of the draws, Todd owned shares in the chip mill, but he was not an officer or a person otherwise authorized to make such draws.
During this time, Todd and his partner Gerald Barr had two outstanding loans with Regions. One was for the purchase of a sawmill located in Texas and the other was for the purchase of timber land in Louisiana, which Todd intended to sell immediately to another buyer at a profit. At the time of the draws, the sawmill was in financial trouble, and Todd was unsuccessful at obtaining a buyer for the timber land. Thus, he had little income to pay the loans that he had obtained from Regions. Some of the money that he obtained through his unauthorized draws on the chip mill’s line of credit was ultimately used to pay for debts associated with the sawmill and the timber land.
The unauthorized draws were discovered by Kevin Martin when he was performing a banking reconciliation in July 2000. When he contacted Regions to inquire about the draws, he was informed that they had been made by Todd. Martin then contacted J.L. Griffin and informed him of Todd’s actions. When confronted by his uncle, Todd confessed that he had taken the money.
Thereafter, talks began between Regions’s personnel and the Griffins to resolve the situation. J.L. Griffin demanded that Regions put back the money Todd had been allowed to withdraw. Regions agreed to do so, after concluding that Todd had not been authorized to make the draws. Regions then attempted to get the Griffin brothers to buy Todd’s failing sawmill and run it as part of their business. In exchange, Regions indicated that it would not pursue civil or criminal action against Todd. The Griffin brothers ultimately rejected Regions’s proposal, as they concluded that the tax advantages were not that great.
Regions filed suit against Todd and the Griffin brothers on June 20, 2002. Specifically as to Todd, Regions asserted claims for breach of contract and fraud. Todd filed a pro se answer to Regions’s complaint, but did not otherwise defend against the claims. However, Todd appeared at trial and was called as a witness by attorneys for the Griffin brothers. He testified that he had, on five separate occasions, obtained draws on the chip mill’s line of credit in the amounts of $502,000; $258,995.12; $1,032,217; $299,004; and $516,000. He admitted that he was not authorized to make any of those draws and that he was solely responsible for taking the money.
At the conclusion of the trial, the jury found against Regions on its claims against the Griffin brothers, but found in favor of the bank on both its fraud and breach-of-contract theories against Todd. The jury assessed damages in the amount of $2.6 million for breach of contract and $10.00 for fraud. Regions filed a timely motion for new trial under Ark. R. Civ. P. 59(a)(5), asserting that the amount of damages assessed on the fraud claim was erroneous. The trial court denied the motion, and this appeal followed.
For its sole point for reversal, Regions argues that the trial court abused its discretion in denying a new trial pursuant to Rule 59. It asserts that the undisputed proof showed that the amount of damages on the fraud claim was $2,608,216.12, which was the total amount of money obtained by Todd through his unauthorized draws on the chip mill’s line of credit. While we do not disagree that the proof of the amount of damages was undisputed, we disagree that Regions is entitled to a judgment in this amount for the fraud claim.
As stated above, the jury was instructed on two theories of recovery for Regions’s suit against Todd: breach of contract and fraud. The jury returned verdicts for the bank on both theories, awarding damages of $2.6 million for breach of contract, but only $10.00 for fraud. Pursuant to the doctrine of election of remedies, the jury should only have been instructed on one of these theories, as the damages and injury claimed on both were the same.
Under the doctrine of election of remedies, a plaintiff may proceed to trial on multiple theories of recovery for the same injury and may pursue multiple remedies up until the time that the jury is instructed, at which time it must be made clear that the jury is required to choose one or the other. Pennington v. Harvest Foods, Inc., 326 Ark. 704, 934 S.W.2d 485 (1996); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). The doctrine applies to remedies, not to causes of action, and bars more than one recovery on inconsistent remedies. Wilson v. Fullerton, 332 Ark. 111, 964 S.W.2d 208 (1998); Smith, 314 Ark. 591, 864 S.W.2d 817. Thus, even though the theories of recovery may not be inconsistent, such as those in contract and tort, recoveries on both theories are not allowed. Smith, 314 Ark. 591, 864 S.W.2d 817; Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). In short, a plaintiff may pursue different theories of recovery; however, recovery on more than one theory for the same injury is not permitted. Id. “Such a double recovery would be unconscionable.” Id. at 498, 763 S.W.2d at 654.
Based on the foregoing, we affirm the trial court’s denial of Regions’s motion for new trial. To accept the bank’s argument would be to condone double recovery for the same injury, which we will not do. Allowing Regions to have a second judgment for the approximate $2.6 million in damages would constitute double recovery. While the trial court’s order does not contain a specific reason as to why it denied Regions’s motion, it is of no consequence, as this court has repeatedly held that it will affirm the trial court if it reached the right result, even if for the wrong reason. See, e.g., State Farm Fire and Casualty Co. v. Andrews, 363 Ark. 67, 210 S.W.3d 896 (2005); Warr v. Williamson, 359 Ark. 234, 195 S.W.3d 903 (2004); Bright v. Zega, 358 Ark. 82, 186 S.W.3d 201 (2004). We thus affirm the trial court’s order in this case.
We do not reverse that part of the trial court’s judgment upholding the jury’s verdict of $10.00 damages on the fraud claim. To do so would be to grant affirmative relief to Todd, who did not file a cross-appeal on this issue. See Aycock Pontiac, Inc. v. Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998); Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). | [
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Robert L. Brown, Justice.
Appellant Steven Pinell appeals from his convictions for violation of a minor in the first degree and rape. On April 19, 2002, judgment was entered which contained a sentence of thirty-six months’ imprisonment for violation of a minor and ten years’ probation for rape. The State appealed the probation for rape. In State v. Pinell, 353 Ark. 129, 114 S.W.3d 175 (2003) (Pinell I), we reversed Pinell’s probation and remanded the case, because the circuit court erred in sentencing him to probation for the crime of rape. Following our remand, the circuit court entered an amended judgment and commitment order in which it sentenced Pinell to 120 months’ imprisonment. Pinell has appealed and his sole point on appeal is that there was insufficient evidence to sustain the rape conviction. We affirm the judgment of conviction.
S.L., the victim in this matter, testified at trial that she resided at the Vera Lloyd Presbyterian Home in Monticello during the spring of 2001. She was fifteen years old at the time and lived in the Barton house at Vera Lloyd with several other girls. Pinell and his wife served as the house parents at Barton and lived in the house as well.
In late February 2001, S.L. experienced a change in her relationship with Pinell. She testified that at that time, Pinell’s physical and verbal actions toward her altered, and specifically, that he began making “dirty” comments to her. She further testified to three nonconsensual sexual encounters with Pinell.
The first encounter occurred when S.L. returned to the house during school hours to retrieve her art project and some books for another resident. S.L. testified that while upstairs, Pinell came into her room, grabbed her by the arms, took off her pants and underwear, and raped her. She testified that before and afterwards, Pinnell told her that if she told anyone, they would not believe her, that he and she would both go to jail, and that he would lose his family.
The second encounter took place after S.L. finished visiting with her mother. S.L. testified that she had fallen asleep on a bean-bag chair in the family room at the Barton house. She said that it was getting dark and that Pinell came into the room, put his hand over her mouth, and like the time before, told her to be quiet and not to tell anybody. He then forced her to have sex with him.
The third encounter took place days later while the other residents were out. She testified that she was half-way up the stairs and going to her room when Pinell stopped her and told her to come back down. She said that he grabbed her arms as he had in the past and pushed her into the family room. He next pushed her onto the couch and raped her. Following the rape, Pinell told her to go to her room and go to bed.
Pinell testified in his defense and denied the charges. At the conclusion of the jury trial, the jury convicted Pinell as set forth above.
Pinell contends as his sole point on appeal that there was insufficient evidence to support his conviction for rape. He asserts that his conviction was based solely on the inconsistent testimony of S.L. He further alludes to the fact that there was no evidence in support of S.L.’s testimony, and he contends that S.L.’s testimony about her return visit back to the house conflicts with the testimony of Vera Lloyd employees as to the procedures that are in place at the home. He also points to the fact that S.L. told no one about the alleged attacks.
The State responds that Pinell’s insufficiency-of-the evidence challenge is untimely in that he should have pursued an appeal from the judgment of conviction entered on April 19, 2002. In addition, the State avers in a footnote that Pinell’s current appeal is barred by the law-of-the-case doctrine, because his sufficiency challenge could have been litigated in the prior appeal and because any failure to resolve that issue results in piecemeal litigation which this court steadfastly avoids. In the alternative, the State argues that Pinell’s sufficiency claim that the victim’s testimony was not worthy of belief and thus insufficient to support his conviction fails for two reasons: (1) the argument is not preserved due to the lack of specificity of Pinell’s motion for directed verdict at trial; and (2) his argument regarding lack of substantial evidence is wholly without merit. Pinell does not reply to the procedural points raised by the State.
We first address the State’s procedural points. In this regard, a chronology of the two appeals is necessary. As already pointed out in this opinion, judgment was entered for first-degree violation of a minor and rape on April 19, 2002, and Pinell was placed on probation for rape. On May 9, 2002, the State filed a notice of appeal pertaining to the probation. On May 20, 2002, Pinell filed a notice of appeal, appealing “all issues[.]” On May 28, 2002, the State amended its notice of appeal to include also an appeal from the denial of the motion for resentencing, and on May 30, 2002, the State cross-appealed from Pinell’s notice of appeal of the April 19, 2002 judgment and commitment order on the same grounds.
The same day as the entry of the amended judgment of conviction for ten years’ imprisonment for rape, which was June 9, 2003, Pinell filed a notice of appeal “of the sentencing entered by the Circuit Court of Drew County[.]” No record was filed following this notice of appeal. On November 16, 2004, Pinell filed a pro se motion to proceed with his appeal, which we treated as a motion for rule on clerk and granted on January 27, 2005. We further directed Pinell’s counsel of record, B. Dale West, to file a petition for writ of certiorari to bring up the remainder of the record for his appeal. Because we concluded that Mr. West was at fault in not perfecting the appeal, we forwarded a copy of our per curiam to the Committee on Professional Conduct. See Pinell v. State, CR041240 (Ark. Jan. 27, 2005) (per curiam).
What concerns us about this case are the multiple procedural deficiencies that have worked to Pinell’s disadvantage. Counsel first filed a notice of appeal from the first judgment on “all issues” but did not pursue it. Instead, the State persevered in its appeal that related only to sentencing, and specifically to the probation for rape. We agreed with the State and reversed the probation and remanded for resentencing in Pinell I. Counsel for Pinell remained quiet after filing the notice of appeal on Pinell’s behalf on “all issues.”
It subsequently came to light, based on Pinell’s pro se motion for belated appeal which we treated as a motion for rule on clerk, that Pinell did want to follow through on his appeal from “his conviction.” We allowed his appeal to continue in our per curiam order dated January 27, 2005. We note, however, that Pinell’s notice of appeal, following resentencing, relates only to the sentence — not to the merits. Specifically, his notice of appeal from the amended sentence reads: “Comes the defendant, Steven Pinell, and gives notice of his appeal to the Arkansas Court of Appeals of the sentencing entered by the Circuit Court of Drew County, Arkansas, in the above cause on the 9th day of June, 2003.” It is signed by defense counsel.
The State argues abandonment, untimeliness, and law of the case as grounds for affirmance. We note an additional procedural defect owing to Pinell’s 2003 notice of appeal, which relates only to sentencing and not to the merits. What strikes this court, nonetheless, is that since his 2002 judgment of conviction, Pinell has shown a desire to appeal his conviction. Why his appeal was not fully perfected early on is unclear to this court. We do know that in January of this year, we ordered counsel for Pinell to pursue the matter at Pinell’s behest, referred to counsel’s failure in this regard, and sent the matter to the Committee on Professional Conduct. See Pinell v. State, CR04-1240 (Ark. Jan. 27, 2005) (per curiam).
Our dilemma now is that Pinell, by his notice of appeal, appealed only his sentence following the circuit court’s amended sentence, whereas he has filed an appellant’s brief in this appeal which addresses only whether substantial evidence supports the issue of guilt. This raises the appearance that error occurred in the preparation of the notice of appeal which limited Pinell’s appeal just to matters related to sentencing. This seems especially so since Pinell stated in his pro se motion for belated appeal that he wanted to appeal “his conviction.” And, of course, his brief filed by counsel does address sufficiency of the evidence supporting the conviction.
All this being the case, we choose to address the merits of Pinell’s appeal which, again, is related to whether- substantial evidence supports the judgment of conviction for rape. We conclude, however, that Pinell is procedurally barred from mounting this challenge on appeal. Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Ark. R. Crim. P. 33.1 (a, c) (2005).
This court has held that to preserve an issue for appeal from a decision on a motion for directed verdict, the issue must be stated clearly and specifically to the circuit court. See Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005). The reasoning underlying this holding is that when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. See id. A further reason that the motion must be specific is that this court may not decide an issue for the first time on appeal. See id.
Here, counsel for Pinell made the following directed-verdict motion after the State rested its case, which the circuit court denied:
Defense Counsel: I’d like to make a motion for directed verdict because of the insufficiency of the evidence.
He then made the following renewal of his motion at the close of his defense, which the court again denied:
Defense Counsel: Your Honor, I would like to renew my motion on Count Three. The only evidence here has been force. Count Three, there’s no force involved.
Counsel’s initial motion at the close of the State’s case was manifestly a general challenge to the sufficiency of the evidence. It failed to point to any specific flaw in the State’s case, nor did it specify any elements of the criminal acts which had not been proven. This court has held that Rule 33.1 is to be strictly construed. See Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004). Because Pinell’s directed-verdict motion was nonspecific, it is not preserved for this court’s review. Accordingly, we affirm the judgment of conviction.
Affirmed.
Dickey, J., not participating. | [
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BART F. VIRDEN, Judge
h India Bishop appeals the Pulaski County Circuit Court order awarding summary judgment to Farm Bureau Insurance Company of Arkansas, Inc. We reverse and remand for the entry of judgment consistent with this opinion.
I. Facts
On March 11, 2011, Ronnie Wardlaw decided to bum the grass in a ditch located near the northwest corner of the 175-acre property owned by his ex-wife, India Bishop. Wardlaw lost control of the fire, and it spread onto neighboring property owned by Charlotte Hardin. The fire destroyed Bishop’s commercial property, which Bishop rented to a tenant who operated a business (Lavender Bar) in the building. The fire also destroyed | aa building owned by Hardin and rented by Troy Guthrey for his business, American Tire & Truck. At the time of the fire, India Bishop held a current homeowner’s insurance policy issued by Farm Bureau Mutual Insurance Company of Arkansas, Inc. (“Farm Bureau”). The declaration page of the policy listed 310 Lavender Lane in Pine Bluff, Bishop’s home, as the insured property.
Hardin and Guthrey filed a negligence suit against Bishop and Wardlaw. Farm Bureau subsequently filed a complaint for declaratory judgment against Bishop, Hardin, Guthrey, and Wardlaw. In the declaratory action, Farm Bureau stated that the policy did not cover damage stemming from any incident that occurred away from Bishop’s residence premises, and that the policy’s personal-liability coverage was specifically limited to incidents occurring within five acres of the residence premises listed on the declarations page; therefore, Farm Bureau requested that the circuit court declare that it owed no duty under the insurance policy to defend or indemnify Bishop or Wardlaw for any losses claimed by Hardin or Guthrey.
Bishop filed a separate answer in which she requested that the declaratory action be dismissed. In her answer Bishop stated that the policy- contained ambiguous terms, and the ambiguity precluded Farm Bureau from denying coverage. Farm Bureau followed up its declaratory action by filing a motion for summary judgment against Bishop on July 30, 2014. Bishop filed her response to the motion for summary judgment on August 19,2014.
Is A hearing on the matter was held 'on October 16, 2014. At the hearing, Farm Bureau argued that the policy did not cover the fire damage because the fire began at a location on Bishop’s property that was not covered by the policy. Farm Bureau also argued that even if the property where the fire started was coveréd by the policy, the fire began as the result of a business pursuit and therefore was excluded from coverage.
In response, Bishop argued that the policy coverage was transitory, meaning that the policy covered incidents that occurred away from the insured property. Bishop also argued that the method of determining the parameters of the five-acre restriction was undefined; therefore the policy contained an ambiguous term, and the clause should be construed in her favor. Bishop also argued that the business pursuits exception was another source of ambiguity within the policy and should also be construed in her favor.
In an order dated October 21, 2014, the circuit court granted summary judgment to Farm Bureau. In its order the circuit court found that Farm Bureau owed no duty to defend or indemnify Bishop or Wardlaw for damage to Hardin and Gu-threy’s property. Bishop filed a timely notice of appeal. Hardin and Guthrey also filed a notice of appeal; however, on January 28, 2015, Hardin’s attorneys requested to be removed as the attorneys of record, and the request was granted. Neither Hardin nor Guthrey has pursued an appeal related to this case.
On appeal, Bishop argues that genuine issues of material fact existed concerning Farm Bureau’s duty to indemnify and/or defend Bishop against suit. Bishop also argues |4that the ambiguous terms in the policy should be construed in her favor; thus, the circuit court erred when it awarded summary judgment to Farm Bureau.
We hold that the circuit court did not err in determining that summary judgment was appropriate; however, we also hold that the terms “residential premises” and “business exception” are ambiguous and that the ambiguity in the insurance policy should have been resolved in favor of Bishop; therefore, the circuit court erred in awarding summary judgment in favor of Farm Bureau. We hold that the circuit court erred as a matter of law when it found that Farm Bureau owed no duty to defend or indemnify Bishop for the damage caused to Hardin and Guthrey’s property, and we reverse and remand for further consideration in light of this opinion.
II. Standard of Review and Applicable Law
A. Summary Judgment
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demon strate the existence of a material issue -of fact. Id.
On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact .unanswered, Campbell v. Asbwry Auto., Inc., 2011 Ark. 157, 381 5S.W.3d 21. We view the evidence in the light most favorable to the party against whom, the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the" parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701.
We agree with the circuit court’s determination that neither party demonstrated a genuine issue of material facts. Both parties agree that Wardlaw started the fire on Bishop’s property, and they agree as to the location of where the fire began. Farm Bureau and Bishop agree that Wardlaw started the fire as a means of clearing a ditch on Bishop’s land. Both parties attest to the fact that Wardlaw was a tenant of Bishop. With the underlying facts relating to the case undisputed, the circuit court did not err in finding that summary judgment was proper; however, because of the ambiguous terms in the insurance policy, we hold that the circuit court erred in finding that summary judgment should be awarded in favor of Farm Bureau.
B. Ambiguous /Terms
The fact that a term is not defined in a policy does not automatically render it ambiguous. Zulpo v. Farm Bureau Mut. Ins. Co. of Arkansas, 98 Ark. App. 320, 323, 255 S.W.3d 494, 497 (2007). Language is ambiguous if there is doubt or uncertainty as to its meaning, and it is fairly susceptible to more than one equally reasonable interpretation. Id. Ordinarily, the question of whether the language of an insurance policy is- ambiguous is one of law to-be resolved by the court. Id. The construction and legal effect of written |fícontracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Id. Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract, itself,, it is the circuit court’s duty to make such a determination as a matter of law. Id. Provisions, of an insurance policy are construed most strongly against the insurance company, which prepared it. Id. If the language of the policy is susceptible to two interpretations-one favorable to the .insured and one favorable to the insurer, then the interpretation most favorable to the insured must be adopted. Id.
1. “Residential premises”
Section II of the policy, which covers personal liability,’ defines “residential premises” as: “Any premises shown on the Declaration page as an insured premises. This includes vacant land, not to exceed five acres.”
The policy describes Bishop’s personal liability coverage:
[W]e will pay all sums ... arising out of any loss which you become legally obligated to pay as damages because of ... property damage covered by this policy. If a claim is made or suit is brought against you for damages because ,of ... property damage covered by this policy, we will defend you at our expense, using lawyers of our choice.
The exclusions to Bishop’s personal liability coverage are also described in the policy:
[C]ertain types of losses are not covered by your policy. Under Personal Liability Coverage, ... we do not cover: ... 3.... property damage arising out of your business pursuits. 4.... property damage arising out of any residence premises owned, rented or controlled by you which is not an insured residence premises specified on your policy Declaration.
| ./Though the definition of “residence premises” specifies that five acres of vacant land is to be included in the policy coverage, the policy does not direct how the five acres is to be measured. Thus, there is an ambiguity inherent in the personal-liability coverage provision concerning whether or not the fire started within five acres of the residence premises covered in Bishop’s policy. We follow the general rule that because the policy language is ambiguous, and thus susceptiblé to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. See Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). No disputed extrinsic evidence was offered in connection with the motion for summary judgment in the present case. Applying the general rule, and construing the ambiguous term in Bishop’s favor, we conclude that the circuit court erred in granting Farm Bureau’s motion for summary judgment in their favor on this issue.
2. “Business pursuits”
Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates coverage. McGrew v. Farm Bureau Mut. Ins. Co. of Ark, 371 Ark. 567, 570-71, 268 S.W.3d 890, 895 (2007). Bishop’s policy provides that Farm Bureau will not pay for property damage that arises out of “business pursuits.” Exclusionary endorsements such as this must adhere'to-the same general requirements that the insurance- terms must be expressed in clear and unambiguous language. Id: If a provision is unambiguous, and only- one reasonable interpretation is possible, this court will give effect to the plain language of the policy without resorting to |sthe rules of construction. Id. If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id.
Bishop’s policy provides that Farm Bureau will not pay for property damage that arises out of “business pursuits.” The compound term “business pursuits” is not defined by the policy. The policy defines “business” as “a trade or professor or occupation, including farming whether full or part-time. It does not include part-time or seasonal activities that are performed by minors.” Landlord-tenant agreements are not specifically identified within this definition. Moreover, the term “pursuit” is not defined .within the policy. For the plain meaning of the word “pursuit”, we look to Webster’s Third International Dictionary, at (2002), which defines it as “an activity that one engages in as a vocation, profession, or avocation[.]”
Thus, in order for Bishop’s activities to be excluded from coverage, her activities must have constituted a business pursuit. It is undisputed that Wardlaw-engaged in burning vegetation on Bishop’s land. This court must consider whether these undisputed facts fall within the exclusionary language; put more simply does Bishop’s landlord-tenant status constitute a business pursuit within the policy language, and were Wardlaw’s actions of burning vegetation on Bishop’s land pursuant to Bishop’s profession, trade or occupation? We cannot discern from the definition presented in the policy whether property rental is an activity to be included in the definition of business. Neither can we discern whether |9Wardlaw’s burning of vegetation was related to- or undertaken in the pursuit of any landlord-tenant relationship.
III. Conclusion
Because the definition of the terms “residential premises” and “business” are so vague as to render the policy ambiguous, we reverse and remand for further consideration in light of this opinion.
Reversed and remanded.
Gladwin, C.J., Abramson, Harrison, Kinard, and Whiteaker, JJ., agree.
. Wardlaw also lived on the property in a trailer home owned by Bishop. | [
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HOWARD W. BRILL, Chief Justice
11Appellant Trozzie Lavelle Turner appeals the order of the circuit court denying his petition for postconviction relief. Turner was found guilty by a Columbia County jury of possession of cocaine with intent to deliver, possession of methamphetamine with intent to deliver, and maintaining a drug premises, for which he was sentenced to an aggregate total of eighty-six years in the Arkansas Department of Correction. Turner appealed, and the court of appeals affirmed. See Turner v. State, 2009 Ark. App. 822, 2009 WL 4673794.
Thereafter, counsel , for Turner filed a timely petition for' postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The circuit court denied the petition without a hearing. Turner contends on appeal that the circuit court erred in denying his petition for postcon-viction relief because (1) trial counsel was ineffective in failing to object to certain statements made by the prosecutor during closing argument, and (2) trial counsel was | ^ineffective in failing to make a motion to dismiss for lack óf a speedy trial and in failing tc make an adequate record that the time for speedy trial had run before the trial started. We affirm’ in part and reverse and remand in part.
This court- does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Taylor v. State, 2015 Ark. 339, at 4, 470 S.W.3d 271, 275. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id., 470 S.W.3d at 275.
On review of claims of ineffective assistance of counsel, this court follows the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors^ so -serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S.Ct. 2052.
Unless a defendant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
| ¡,1. Prosecutor’s Comments During Closing Argument
Turner contends that trial counsel was ineffective in failing to object to certain statements made by the prosecutor in his rebuttal to trial counsel’s closing argument. First, Turner claims that, during rebuttal, the prosecutor improperly shifted the burden of proof and implied that a defendant has an obligation to refute evidence. The prosecutor stated,
If I had been defending this case and I knew that I was going to come in here and tell twelve folks that I lived down in Emerson, do you know what I - would have given you folks? I’d have given you stacks of utility bills from Emerson, stacks and stacks of phone bills and electric bills and gas bills and cable bills. I’d have gotten my neighbors in here and said, “Yeah, I see him there every day.”
The State responds that the prosecutor’s remarks were not improper because they were directly connected to both the testimony elicited by trial counsel and trial counsel’s closing argument. We agree.
Turner’s charges stemmed from the execution of a search warrant on a residence in Magnolia, Arkansas, during which law enforcement officers seized cocaine and methamphetamine. Part of Turner’s defense was that he, did not live at the Magnolia residence from which illegal drugs were being sold. During the trial, trial counsel elicited testimony from Turner’s brother, among others, that Turner lived in Emerson, Arkansas, when the drugs were discovered. In closing argument, trial counsel reiterated that Turner lived in Emerson, not Magnolia. In closing argument, counsel may argue any plausible inference that can be drawn from the testimony at trial. See, e.g., Jackson v. State, 368 Ark. 610, 615, 249 S.W.3d 127, 130 (2007). Moreover, this court has held that the State is allowed to comment on matters raised by the defense in its closing argument. Biggers v. State, 4317 Ark. 414, 426, 878 S.W.2d 717, 723 (1994). In making his statement, the prosecutor did not improperly shift the burden to Turner. Failure to make a meritless objection is not an instance of ineffective assistance of counsel. Decay v. State, 2014 Ark. 387, at 10, 441 S.W.3d 899, 907.
Second, Turner claims that trial counsel was ineffective in failing to object to the following comment by the prosecutor: “You folks know there’s a lot more going on that you didn’t get to hear.” In support of his claim, Turner makes conclu-sory allegations that the prosecutor’s statement suggested that there was inadmissible evidence favorable to the State, and he provides a string cite to cases from other jurisdictions. This court does not consider assignments of error that are unsupported by convincing argument or authority. E.g., Young v. State, 370 Ark. 147, 156, 257 S.W.3d 870, 878 (2007); see also Hester v. State, 362 Ark. 373, 386, 208 S.W.3d 747, 754 (2005) (stating that this court does not research or develop arguments for appellants).. Accordingly, we do not address this claim.
Third, Turner contends that trial counsel was ineffective in failing to object when the prosecutor made a veiled reference to his failure to testify at trial:
If you find this man guilty, remember the suggestion in this case is that, “I wasn’t there. It ain’t my house:' I don’t live there. It’s my sister’s furniture, but it doesn’t matter, because the police planted the dope anyway. That’s his case.”
(Emphasis added.)
An allegedly improper comment on the defendant’s failure to testify usually occurs during the prosecutor’s closing argument when the evidence is closed and the defendant’s opportunity to testify has passed. Decay, 2014 Ark. 387, at 8, 441 S.W.3d at 907. Under Rthose circumstances, a comment that draws attention to the defendant’s failure to testify is improper because it creates the risk that the jury will surmise that the defendant’s failure to testify was an admission of guilt. Id. at 8-9, 441 S.W.3d at 907. Consequently, the comment has the effect of making the defendant testify against himself in violation of the Fifth Amendment. Id. at 9, 441 S.W.3d at 907. In determining whether a prosecutor has improperly commented on a defendant’s failure to testify, this court conducts a two-step review. Id., 441 S.W.3d at 907. First, we determine whether the comment itself is an improper comment on the defendant’s failure to testify. Id., 441 S.W.3d at 907. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant’s failure to testify. Id., 441 S.W.3d at 907. A veiled reference to the defendant’s failure to testify is improper, as well. Id., 441 S.W.3d at 907. If we determine that the prosecutor’s closing argument statement did indeed refer to the defendant’s choice not to testify, we then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id., 441 S.W.3d at 907.
Closing’ arguments must be confined to questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions that can be drawn therefrom. E.g., Leaks v. State, 339 Ark. 348, 357, 5 S.W.3d 448, 454 (1999). When an attorney’s comment during closing arguments is based on, or may be inferred from, testimony at trial, there is no error. See Hendrix v. State, 2011 Ark. 122, at 10-11, 2011 WL 1177219. Further, when the defense, by adopting a particular strategy, opens the door for the prosecution to respond to evidence submitted or statements made by defense counsel, statements ‘made by the prosecution to rebut the defense | (¡strategy are not necessarily impermissible references to the defendant’s failure to testify’. See Rounsaville v. State, 2011 Ark. 236, at 3-4, 2011 WL 2062321 (per curiam). Here, through witness testimony and arguments of trial counsel, the defense maintained that Turner did not live at the Magnolia residence. The prosecutor’s statement during rebuttal was not a veiled reference to Turnér’s choice not to testify; rather, the statement was a challenge to the defense’s theory of the case.
Moreover, the jury was instructed that opening statements, remarks of counsel during the trial, and closing arguments of the attorneys were not evidence and to disregard any argument, statements, or remarks of attorneys that had no basis in the evidence. The jury was also instructed that Turner had an absolute constitutional right not to testify and the fact that he did not testify was not evidence of his guilt. This' court presumes that jurors follow the circuit court’s instructions. E.g., Dunlap v. State, 292 Ark. 51, 65, 728 S.W.2d 155, 162 (1987).
Finally, even if Turner has demonstrated that trial counsel’s performance was deficient when he failed to object to the comments, Turner has failed to demonstrate prejudice. Before a petitioner can prevail on an allegation that counsel failed to object during closing argument, he must establish that he was denied a fair trial by counsel’s failure to object. See, e.g., Hayes v. State, 280 Ark. 509, 509-F, 660 S.W.2d 648, 653 (1983). Turner has not done so in this case. The circuit court did not err in ruling that trial counsel was not ineffective 17in failing to object to the prosecutor’s comments during rebuttal.
II. Speedy Trial
Turner contends that trial counsel was ineffective in failing to move for dismissal for lack of a speedy trial and in failing to make an adequate record that the time for speedy trial had run before the trial started. Pursuant to Arkansas Rule of Criminal Procedure 28.1 and 28.2, a defendant must be brought to trial within twelve months of the date of his arrest unless there are periods of delay that are excluded under Rule 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R.Crim. P. 28.1(c), 30.1.
Turner was arrested on March 9, 2006. He was brought to trial on October 8, 2008, which was 944 'days after the-time for speedy trial had begun to run. Accordingly, if trial counsel had moved for a dismissal, he would have made • a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay. Camargo, 346 Ark. at 126, 55 S.W.3d at 261. Whether counsel was ineffective, therefore, depends on whether the State would have been able to prove that there were excluded periods sufficient to bring Turner’s trial within the twelve-month period. . Id., 55 S.W.3d at 261.
In its order denying postconviction relief, the circuit court found no merit in Turner’s argument that trial counsel was ineffective in failing to make a motion to dismiss for lack of a speedy trial and in failing to make an adequate record that the time for speedy trial had run before the trial started. The court stated,
, | sThe record is clear the Defendant agreed to continuances with extended periods for speedy trial purposes and he specifically agreed for the time to be excluded until the date of his jury trial. The matter was set for trial several times; the. majority, if not all, of the continuances were at the request of the Defendant.
Turner asserts that the circuit court’s order is deficient because it did not include specific factual findings regarding periods excludable for speedy trial, but merely determined, in conclusory fashion, that the majority, if not all, of the continuances were at the request of the defendant. We agree. When no hearing is held on a Rule 37.1 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Camacho v. State, 2011 Ark. 235, at 1, 2011 WL 2062328 (per curiam); see also Ark. R.Crim. P. 37.3. In doing so, the court shall specify “any parts of the flies, or records that are relied upon to sustain the court’s findings.” Ark. R.Crim. P. 37.3.
This court has affirmed the denial of a Rule 37.1 petition notwithstanding the circuit court’s failure to make sufficient findings under Rule 37.3(a) only in two circum-. stances: (1) when it can be determined from the record that the petition is wholly without merit, or (2) when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Davenport v. State, 2011 Ark. 105, at 5, 2011 WL 835180 (per curiam). However, it is not incumbent on this court to scour the record to affirm. Id. Sufficient written findings by the circuit court are required to demonstrate to this court that Turner was entitled to no relief on his speedy-trial-ineffectivé-assis-tance claim. See Walden v. State, 2014 Ark. 10, at 2, 2014 WL 197824 (per cu-riam). The circuit court’s findings are insufficient for our review. Accordingly, we reverse and remand the dismissal of the speedy-trial-ineffective-assistance claim for compliance with Rule 37.3. On remand, the circuit court shall make specific findings as to |flwhich periods of delay are excludable under our speedy-trial rules and shall specify the parts of the files or record relied upon to sustain those findings.
Affirmed in part; reversed and remanded in part.
Baker, Goodson, and Wood, JJ.,.dissent.
. Turner contends that, standing alone, the prosecutor’s comments are egregious, but when taken together, they are even more egregious and prejudicial. Inasmuch as Turner is making a cumulative-error argument, we do not address it because this court does not recognize cumulative error in allegations of ineffective assistance of counsel. E.g., Noel v. State, 342 Ark. 35, 42, 26 S.W.3d 123, 128 (2000). | [
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JOSEPHINE LINKER HART, Associate Justice
11 Richard H. Ashley and J.D. Ashley, Jr., as the personal representatives of the estate of J.D. Ashley, Sr.; Candace Baughman; and the estate of Charolette Ashley, deceased (the Ashleys) appeal from the circuit court’s nunc pro tunc order addressing deficiencies in an earlier order it had issued granting an extension of time for lodging the record in Todd H. Ashley’s appeal. On cross-appeal, Todd Ashley appeals from the circuit court’s probate order approving a settlement agreement among the Ashleys. Also pending before us is the Ashleys’ motion to dismiss Todd’s appeal, in which they argue that Todd failed to timely lodge the record for ■ his appeal. The Ashleys have also asked for sanctions against Todd Ashley for filing a frivolous appeal. On direct appeal, we affirm the circuit court’s nunc pi'o tunc order. On cross-appeal, |2we affirm the circuit court’s order approving the settlement agreement. Further, we deny the Ashleys’ motion to dismiss and their motion for sanctions. •
On direct appeal, the Ashleys challenge the circuit court’s nunc pro tunc order in which the court stated that it was clarifying an earlier order that had granted an extension of time for lodging the record in the appeal brought by Todd Ashley. By way of background, on October 3, 2014, Todd Ashley filed a notice of appeal from the probate order approving the settlement agreement. On December 8, 2014, the court reporter averred that an extension of time was needed to prepare the record. On December 22, 2014, Todd Ashley filed a motion requesting that the court grant the additional time needed to prepare the record. On January 2, 2015, the circuit court granted the motion and extended the time to lodge the record to April 10,2015.
On February 2, 2015, Todd Ashley filed a motion in which he noted that the order extending the time to lodge the record did not include the findings required by Rule 5(b) of the Arkansas Rules of Appellate Procedure — Civil. He asked the court to enter a nunc pro tunc order clarifying its findings of fact relating to the order granting the extension. The Ashleys objected, stating that the requirements of Rule 5(b) were not present when the January 2, 2015 order was entered. Particularly, they asserted that they had not been given an opportunity to be heard on the motion for an extension of time. The Ashleys noted that Rule 6 of the Arkansas Rules of Civil Procedure sets out time in which to respond to a motion. They asserted that according to the rule, they had until after January 2, 2015, in which to respond |3to Todd Ashley’s motion to extend the time for lodging the record but that the court instead granted the order on that day. Following a hearing, the circuit court entered the nunc pro tunc order on March 17, 2015. In the order, the .court stated that the requirements of Rule 6(b) were in existence at the time the court’s January 2, 2015 order was enteredL On appeal, the Ashleys argue that the circuit court erred in entering the March 17, 2015 nunc pro tunc order because Rule 5(b) had not been complied with at the time the original motion fop extension of time was granted.
The record on appeal is due to be filed in the appellate court within ninety days from the filing of the first notice of appeal. Ark. R.App. P. — Civ. (5)(a). If an extension of time is needed, Rule 5(b) provides as follows:
(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding by writing;
(D) The appellant, in compliance with [Arkansas Rules of Appellate Procedure — Civil] Rule 6(b), has timely ordered the stenographically reported material in the record on appeal or for the clerk to compile the record; and
(E) -An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal or for the circuit clerk .to compile the record.,
Historically, when an order fails to comply with Rule 5(b), we remand the matter to the circuit court for compliance with the rule. See, e.g., Baxter v. Wing, 2016 Ark. 42, at 2, 2016 WL 447861 (per curiam). On a remand for compliance with Rule 5(b)(1), the circuit court determines whether |4the rule was complied with at the time the original motion for extension of time was filed and granted. Id. at 3. In those cases, we instruct the circuit court not to permit the parties the opportunity to correct any deficiencies, but instead to make the findings required by the rule as if they were being made at the time of the original motion. Id.
First, the Ashleys assert that they were entitled to a hearing before the January 2, 2015 order was entered. The language of the rule, however, provides that the circuit court must find that'-the parties “had the opportunity to be heard on the motion, either at a hearing or by responding by writing.” Ark." R.App. P. — Civ. 5(b)(1)(C). Thus, a circuit court is not required to hold a hearing before entering an extension order if there is an opportunity to respond in writing.
Second, the Ashleys assert that even if a hearing was not required, Rule 5(b) had not been complied with at the time the original motion for extension of time was granted on January 2, 2015, because they did not have opportunity to be heard in writing on the original motion for extension of time. They note that the extension motion was filed on December 22, 2014, and that the extension order was entered on January 2, 2015. They assert that the order was entered before the expiration of the time period allowed to respond to motions under Rule 6(c) of the Arkansas Rules of Civil Procedure. In calculating their time to respond, the Ash-leys state that Rule 6(a) provides that when the period of time prescribed or allowed is less than fourteen days, intermediate Saturdays, Sundays, or legal holidays are excluded from the computation, and they note that Christmas Eve, Christmas Day and New Year’s Day are legal holidays. They also assert that, pursuant to Rule 6(d), an additional three days should be added [(¡to the computation because Todd served the motion by electronic transmission. Thus, the Ashleys argue that the deadline to respond to the extension motion was after January 2, 2015, and accordingly, they did not have an opportunity to be heard in writing on the original motion for extension of time to file the record as required by Rule 5(b)(1)(B).
We note, however, that the rule does not provide an express time period in which a party must have an opportunity to be heard. Rather, the rule provides that the motion and order must be filed before the time has expired for lodging the record on appeal. Ark. R.App. P. — Civ. 5(b)(1)(B). Thus, we do not read into Rule 5(b) the time limitations imposed by the Arkansas Rules of Civil Procedure. Thus, the Ash-leys had an opportunity to be heard, and they did not demonstrate how they might have been better served if their opportunity in which to be heard was longer.
Third, the Ashleys argue that the circuit court improperly corrected deficiencies in the January 2, 2015 order by making the findings required by Rule 5(b), contending again that they were not given an opportunity to be heard. In Harrison v. State, 370 Ark. 431, 260 S.W.3d 286 (2007) (per curiam), the record did not reflect compliance with the requirement of Rule 5(b)(1)(B) of filing the extension motion before the time to file the record had expired. We noted, however, that if he had complied with that requirement and the extension order failed to state a finding to that effect, he could have sought a corrected order showing that he had complied with the rule and asked the court to enter the amended order nunc pro tunc. Here, Todd Ashley followed a similar procedure, and the circuit court found that the requirements of the rule were met at the time the original motion for extension was granted. |fiWe hold that the circuit court’s order complied with Rule 5(b).
In the Ashleys’ motion to dismiss, they argue that the record was not timely lodged because the record was supplemented after the due date for the filing of the record. We note that Todd Ashley lodged the record for his appeal on April 8, 2015. On August 31, 2015, the day his brief as cross-appellant was due in the Arkansas Court of Appeals, he filed a petition for writ of certiorari to complete the record because the record did not contain the hearings held on June 16, 2014, and July 18, 2014, both of which were pertinent to his cross-appeal. In response, the Ash-leys contended that Todd Ashley’s appeal should be dismissed because he did not lodge the entire record within the seven-month period allowed by Arkansas Rule of Appellate Procedure — Civil 5(b)(2), which provides that in “no event shall the time be extended more than seven (7) months from the date of the entry of the judgment or order.” The court of appeals granted the motion to supplement the record, rendering the petition for writ of certiorari moot, and passed the motion to dismiss until the case was submitted. That motion is now before us.
Rule 6(e) of the Arkansas Rules of Appellate Procedure — Civil specifically states that “[i]f anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court before the record is transmitted to the appellate court, or the appellate court on motion made no later than 30 days after the appellee’s brief is filed in the appellate court, or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary, that a supplemental record be certified and transmitted.” Thus, under Rule 6(e), Todd Ashley could properly correct the omission from |7the record. Accordingly, we deny the motion to dismiss.
On cross-appeal, Todd Ashley appeals from the circuit court’s probate order that approved a settlement agreement, arguing that the circuit court erred in finding that the agreement was in the best interest of the Estate of J.D. Ashley, Sr. At the time of his death, J.D. Ashley, Sr., was survived by his wife, Charolette Ashley; his four children by a previous marriage, Richard Ashley, J.D. Ashley, Jr., Melody Ashley, and Todd Ashley; and his stepdaughter, Candace Baughman, whom he included in his estate planning. His estate plan included a Last Will and Testament; the J.D. Ashley, Sr., Family Limited Partnership; and the J.D. Ashley, Sr., Revocable Trust. The will contained a pourover provision, whereby the residuary of his estate was to pass to the trust. At his death, amendments to the trust and the partnership provided that Charolette Ashley was to receive $5 million of the assets of the partnership, which the partnership was to purchase from her at that price, secured by a lien on the transferred assets, and payable to her over fifteen years with interest at six percent. The balance of the trust was to be divided and distributed in equal shares to the four children and Candace Baughman. Both the will and the trust contained a no-contest clause by which a beneficiary would forfeit his or her interests under the instruments by challenging their validity.
[sThe circuit court admitted the will to probate, and as nominated in the will, the court appointed Richard Ashley and J.D. Ashley, Jr., as the personal representatives of the estate. Charolette Ashley filed an, election to take against the will and objected to the inventory of the estate, asserting that her husband’s interest in the partnership was erroneously omitted from the inventory because he had not transferred his partnership interest to- the trust. Charolette Ashley also made claims against the estate as trustee on behalf of a trust for her benefit and a trust for Candace Baughman. A claim was also made by a company regarding a personal guaranty made by J.D. Ashley, Sr., on a loan to Candace Baughman and her husband. After litigation, the Arkansas Court of Ap peals affirmed the circuit court’s finding that her husband’s interest in the partnership had been transferred to the trust prior to his death and was properly omitted from the inventory of the estate. Ashley v. Ashley, 2012 Ark. App. 286, 405 S.W.3d 419.
Charolette Ashley died on April 26, 2013, and Candace Baughman was appointed as the personal representative of her estate, and the estate was substituted as the proper party on Charolette Ashley’s behalf. The Ashleys filed a joint petition with the circuit court to- approve a settlement agreement. To summarize, the settlement called for the purchase of Charo-lette Ashley’s interest in the partnership for $5 million in cash; settled a claim by a trust for Charolette Ashley by having a limited liability company pay her $319,-332,49; settled a claim by having the estate pay $140,983.21 to Charolette Ashley’s trust; settled a claim by a trust for Candace Baughman by having the partnership pay her $137,336.99; settled a claim by the trust for Candace Baughman by having the estate pay her $59,460.75,"which had been reduced by an offset for the'payment of the personal guaranty; settled claims by a life-insurance trust of |SJ.D. Ashley, Sr., against the estate of Charolette Ashley by having her estate pay $120,000; settled issues relating to the issuance of fiduciary deeds in 'the estate, deeds "from Charolette Ashley’s estate to the partnership, and assignment of stock from the estate to the partnership; settled a claim by the estate of Charolette Ashley relating to the ownership of vehicles. In addition, the agreement provided for a general mutual release.
Prior to a hearing on the approval of the settlement agreement, Todd Ashley raised objections to the agreement. At a hearing on the agreement, the circuit court heard the testimony of Richard Ashley. Following the hearing, the circuit court approved the agreement, finding that the agreement was in the best interest of the estate. Todd Ashley appealed.
This court reviews probate proceedings de novo on the record, but we will not reverse the decision of the circuit court unless it is clearly erroneous. Stautzenberger v. Stautzenberger, 2013 Ark. 148, at 6, 427 S.W.3d 17, 21 This court will not overturn the circuit court’s factual determinations unless they are clearly erroneous. Id., 427 S.W.3d at 21. However, no deference is given to the circuit court on matters of law. Id.; 427 S.W.3d at 21.
Arkansas Code Annotated section 28-50-112 (Repl. 2012) provides that “[w]hen a claim against the estate has been filed or suit thereon is pending, if it appears to be in the best interest of the estate and subject to the court’s authorization or approval, the creditor and personal representative may compromise the claim whether due or not due, absolute or contingent, liquidated or unliquidated.” On appeal, Todd Ashley first argues that the circuit court’s authority under the statute is limited to the approval of a settlement of claims made by a creditor against the estate. He contends that' the' settlement agreement embraces claims and | Tnparties unrelated to the estate.
To the extent that the agreement settles matters unrelated to the probate of the estate of J.D. Ashley, Sr., those claims would not have required the circuit court’s approval. Thus, settlement of claims beyond the scope of probate would have no bearing on whether the settlement of probate-related claims was in the best interest of the .estate. On many occasions, this court has stated that an appellant must demonstrate prejudice or this court will not reverse. See, e.g., Viravonga v. Samakitham, 372 Ark. 562, 571, 279 S.W.3d 44, 51 (2008). Todd Ashley did not pres ent any evidence at the hearing, and he has not shown how he was prejudiced by any settlement of claims outside the scope of the probate of the estate of J.D. Ashley, Sr. While he further asserts that the settlement agreement may preclude him from pursuing his own claims against Richard Ashley and J.D. Ashley, Jr., for breach of fiduciary duty, we note that the agreement does not contain any,language concerning any potential claims by Todd Ashley against Richard Ashley and J.D. Ashley, Jr., nor do we address them here.
Second, Todd Ashley asserts that certain findings made by the circuit court in its order approving the agreement are clearly erroneous. Particularly, he challenges the circuit court’s statement that Todd Ashley was made aware of the settlement agreement at an advisory board meeting of the partnership and stated that he did not anticipate objecting to the settlement agreement. He further challenges the circuit court’s statement that he did not take any affirmative action relating to the settlement agreement. The findings •he challenges, however, were not relevant to the question of whether the settlement agreement was in the .best interest of the estate. Rather, the court’s findings focused on Todd Ashley’s knowledge of the | nagreement. Todd Ashley did not present evidence at the hearing, and the burden was on him to demonstrate prejudice. Id., 279 S.W.3d at 51. He does not identify in his brief how he suffered prejudice from these findings. Because the findings he complains of were not material to the circuit court’s decision on whether the agreement was in the best interest of the estate, he cannot demonstrate prejudice. Consequently, we affirm on this point:
Third, Todd argues that the circuit court erred in approving the payment of $5 million to Charolette Ashley’s estate. He contends that Charolette Ashley may have forfeited her right to recover this- amount based on the no-contest clauses contained in the will and the trust. He also asserts that, because the estate contained, no assets and was insolvent, her election to assert her dower interest in the estate entitled her to nothing. He reasons that she would not have prevailed on any of her arguments and that it was improper for her to recover the $5 million.
The question in this case is whether, as required by section 28-50-112, the compromise was in the. best interest of the estate.. We note that had litigation ensued, the question of whether a spouse’s election to take against the will triggers a no-contest clause would have been a question of first impression in this state. Also, the record indicates that the parties questioned whether, for purposes of calculating an elective share, the estate could be augmented with the assets of the trust; this, too, would have been a matter of first impression in this state had litigation been pursued. On this record, Todd Ashley’s argument embarks on speculation regarding how this court would rule and claims that the settlement agreement was therefore not in the best interest of the estate. This court has not ruled on these issues, and we need not address these issues here. We are mindful that in its order, the circuit court addressed hgthe merits of the' issue relating to the no-contest clause. Even.so, because the only issue before us is whether the circuit court properly concluded that the settlement agreement was in the best interest of the estate, we need only observe that those issues have not been decided by this court, and such uncertainty supports the circuit court’s finding that the settlement agreement was in the best interest of the estate. As for his claim that the estate was insolvent, we note that the trust documents provided for the trust to pay the costs of administration and claims against the estate. We further note that Richard Ashley testified that he was carrying out the wishes of his father and that paying the amount in a lump sum was more advantageous, rather than paying it out over fifteen years at six percent interest, because he was able to obtain a lower interest rate. Based on this record, we conclude that the circuit court did not clearly err in concluding that the settlement of this claim was in the best interest of the estate.
The Ashleys have also filed with this court a motion for sanctions against Todd Ashley for filing a frivolous appeal for improper purposes. Todd Ashley, however, could properly appeal whether the settlement agreement was in the best interest of the estate. We deny their motion.
Motion to dismiss denied; motion for sanctions denied; affirmed on direct appeal; affirmed on cross-appeal.
Special Justice Robert Hudgins joins in this opinion.
Goods on, J., not participating.
. In their argument to the circuit court and in their initial brief, the Ashleys stated that they had until January 13, 2015, but in their reply brief, they state that they had until January 6, 2015.
. In addition to the aforementioned estate-planning devices, J.D. Ashley, Sr., provided for his heirs in other ways. He owned a forty percent interest in an entity called the Conservative Development Corporation, which owned five shopping centers. In 1993, he transferred ten percent of his stock to Richard Ashley, and with the remainder he created four irrevocable trusts for the benefit of Char-olette Ashley, Candace Baughman, Melody Ashley, and Todd Ashley. He also established a trust composed of life-insurance benefits and naming Charolette Ashley as the beneficiary. ■ ■ | [
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BART F. VIRDEN, Judge
11 Michael McElwee appeals the Sebastian County Circuit Court order terminating his parental rights to his minor child, M.M. McElwee asserts that the circuit court erred in finding that it was in the best interest of the child to terminate his parental rights. We disagree, and we affirm.
I. Fads
M.M. .(born 4/11/2013) was placed in emergency custody of the. Arkansas Department of Human Services (the Department) on April 17, 2014, based on reports that Michael had physically abused his wife, Melody Hunt -(M.M.’s mother). McElwee was | ¡named as the putative father in the affidavit. The affidavit for the emergency-custody order also described the parents’ drug use and unsuitable conditions in the home such as no furniture, nowhere for M.M. to sleep, and trash and cigarette butts orí the floor within M.M.’s reach. The affidavit also sets forth that a family-service worker had found a one- and-a-half-ineh by four-inch healing burn on M.M.’s leg. Melody later explained M.M. had been burned by a floor vent and that McElwee had taken M.M. to a hospital in Sallisaw, Oklahoma, which could not be confirmed by the hospital there. The physician who examined M.M. at the time M.M. was placed in the custody of the Department stated that the burn could not have come from a floor vent.
A case plan was entered May 9, 2014. McElwee was ordered to complete parenting, anger-managenient, and domestic-violence classes;' participate in a drug-and-alcohol assessment; ’ and make himself available for drug screening. He was also ordered to find employment, refrain from drug use, procure stable and appropriate housing, and complete a psychological evaluation. A probable-cause order was entered 5n May 15, 2014'.' The circuit court found that there was evidence of circumstances such that immediate action was necessary to protect the child by removing him from the home. Specifically, the circuit court found that there was evidence of'parental drug use and domestic abuse, and it found that the burn on the child’s leg and the mother’s unverifiable story about details concerning the burn supported its finding of probable cause. The circuit court ordered McElwee to establish paternity. McElwee did not appear at the hearing, and he did not have an attorney at that time.
|sOn May 27, 2014, M.M. was declared dependent-neglected after a hearing on the matter at which McElwee appeared pro se. An adjudication order was entered the same day, and in it, MeElwee' was again ordered to establish paternity; find legal employment; complete the classes listed' in the case plan; submit to psychological and drug-and-alcohol assessments and complete any treatment recommended; and he was ordered to resolve any pending criminal matters. The circuit court denied McElwee’s request to waive DNA testing.
On October 20, 2014, the circuit court held a review hearing at which MeElwee appeared pro se. The review order was entered on December 17, 2014, In its order, the circuit court found that DNA testing showed MeElwee to be M.M.’s father and that returning M.M. to his parents’ care was contrary to M.M.’s health, safety, and welfare. The circuit court also found that MeElwee had not complied with the case plan. Specifically, the circuit court found that MeElwee had been incarcerated in the Sebastian County jail, that he had not completed any services, and that he had not exercised visitation with his child. Though the goal of the case was still reunification, the court found that a concurrent goal of adoption was appropriate. At the time of the review hearing, M.M. had been placed with his paternal aunt. A termination hearing was scheduled for January 12,2015.
On November 3,2014, the court appointed an attorney to represent MeElwee. In its termination petition, the Department alleged several statutory grounds for ter7 mination, that McElwee’s sister was interested in adopting M.M., that there was potential for harm to M.M. if he was returned to the custody of his parents, and that termination was in M.M.’s best interest.
, |4The termination hearing took place on March 16, 2015. MeElwee appeared with his attorney. At the hearing, MeElwee testified that he was currently incarcerated at the Varner Unit for delivery of methamphetamine 'and that his sentence was ten years with ten years’ suspended, but that he might be released by the end of the year. He testified that one of his children bom prior to M.M. had been adopted. MeElwee testified that M.M. had been removed because Melody had made false statements about the' domestic abuse and that he had not hit her as she had stated to family-service workers. He testified that when M.M. was burned he called his sister, who was employed as a nurse and that she bandaged the wound and told him how to care for it. MeElwee testified that, for that reason, he never took M.M. to a doctor. MeElwee testified that he received the case plan only after he had contacted the supervisor for the caseworker assigned to their case and that after he picked up the case plan in May 2014, he began to comply with the order. MeElwee testified that there were services available at the Varner Unit and that he was waiting for a spot to open. He stated that he had changed a lot since the removal of his first child, and he asked the court for more time to comply with the case plan. MeElwee pointed to his efforts before this case had begun: that he took M.M. to his medical and WIC appointments and that he had been working (out of desperation he had begun selling drugs) and providing for his son. MeElwee explained that he had become a Christian, that he loved his son, and that he now understood that his actions affected M.M. MeElwee testified that he had completed anger-management classes in prison and that he had been going to NA meetings; however, he did not submit certificates for completion of the program or sign-in sheets for the meetings.
| ¡¿Department caseworker Cheryl Deaton testified that MeElwee contacted her and asked her for the case plan, and that she left a copy for him at the front desk on or around May 17. She testified that she had walked McElwee through the requirements, explained to him how referrals for services were made, and was “confident that Mr. McElwee was aware of what he needed to do.” Deaton testified that the referrals were made by the Department as ordered; however, she explained that McElwee was rearrested shortly after their meeting, and she was not sure if the referrals got to him. Deaton testified that she was involved in the prior termination of McElwee’s parental rights in 2013 and that it was her opinion that McElwee had not made any progress since that time. Deaton stated that “all the issues that were there before are still there” and that “we’ve had a long-standing history and it’s been continual and a pattern.” She testified that she did not believe that McElwee would benefit from more services or time and that M.M. would be at risk if he were returned to the parents because there was no guarantee that McElwee would stay sober, be able to provide a home, or “even meet the child’s needs.”
In its written order entered on August 18, 2015, the circuit court found the following grounds for termination: (1) subsequent factors, namely, McElwee’s incarceration; (2) prior termination of McElwee’s parental rights involving previous children; (3) McElwee had been sentenced in a criminal proceeding for a period of time that would amount to a substantial period of the child’s life; (4) aggravated circumstances, specifically, abandonment, and that McElwee’s parental rights were terminated as to a sibling of M.M.’s; and that the root cause of these aggravated circumstances was that McElwee has been unable to resolve his drug | fiaddiction; and (5) the best interest of the child would be served by termination, considering the likelihood of adoption and the potential harm to M.M.’s welfare and safety if he was returned to his parents due to their drug abuse, mental-health issues, and inability to conform their behavior to the law. McElwee filed a timely notice of appeal.
II. Point on Appeal
For his sole point on appeal, McElwee argues that the evidence was insufficient to support the circuit court’s finding that termination was in M.M.’s best interest in light of M.M.’s placement with a relative. McElwee does not challenge the statutory grounds upon which his rights were terminated. Nor does he challenge the circuit court’s finding that M.M. is adoptable.
A. Standard of Review and Applicable Law
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Madison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 368, at 6, 428 S.W.3d 555, 559 (citing Ark.Code Ann. § 9—27—341(b)(3)(A)(i) & (ii) (Supp. 2011)). Furthermore, our appellate courts have noted that, in considering the best interest of the child, there is no requirement that every factor considered be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 9, 385 S.W.3d 285, 289. Clear and convincing evidence is that degree of proof that will produce in the finder of fact a firm conviction as to the allegation sought to be established. Washington v. Ark. Dep’t of Hu man Servs., 2014 Ark. App. 293, 2014 WL 1856759. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due deference to the circuit court’s opportunity to judge the credibility of the witnesses. Smith v. Ark Dep’t of Human Servs., 2013 Ark. App. 753, 431 S.W.3d 364. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id.
A circuit court is only required to consider potential harm to a child’s health and safety that might come from continued contact with the parents; there is no requirement to find that actual harm would result or identify the potential harm. Pine v. Ark Dep’t of Human Servs., 2010 Ark. App. 781, at 11, 379 S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. Furthermore, the juvenile’s need for permanency and stability overrides a parent’s request for additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. Contreras v. Ark Dep’t of Human Servs., 2015 Ark. App. 604, at 6, 474 S.W.3d 510, 514. The intent of the statute is to provide permanency in the child’s life in all circumstances where a return to the parent is contrary to the juvenile’s health, safety, or welfare and cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Id. Past behavior serves as a predictor of potential harm to the child if returned to the parent’s custody. Whittiker v. Ark Dep’t Human Servs., 2015 Ark. App. 467, at 8, 469 S.W.3d 396, 401. Prior terminations may be considered as an indicator of potential harm. See Drake v. Ark. Dep’t of Human Servs., 2014 Ark. App. 475, at 6, 442 S.W.3d 5, 8 (where we held that the circuit court did not err when it found that appellant was not successfully managing the very issues that resulted in the prior terminations and a potential threat of harm remained to the minor child as a result).
B. Analysis
McElwee argues that because M.M. had been placed with a relative, the circuit court was in error for terminating his parental rights instead of choosing the less restrictive option of permanent custody with the relative. We disagree, and we affirm.
Arkansas law permits a trial court to set termination or adoption as the case goal even when a relative is available and requests custody. Ark.Code Ann. § 9-27-338(c)(1)—(6); Davis v. Ark. Dep’t of Human Servs., 2010 Ark. App. 469, 375 S.W.3d 721. Arkansas Code Annotated section 9-27-338(c)(l)-(6) lists the permanency goals that the circuit court is to consider in determining the best interest of the children. The top preference is to return the juvenile to the parents if it is in the best interest of the juvenile and the juvenile’s health and safety can be adequately safeguarded if returned home. See Ark.Code Ann. § 9-27-338(c)(l). The second preference is adoption, unless the juvenile is being cared for by a relative and termination of parental rights is not in the best interest of the juvenile. See Ark. Code Ann. § 9-27-338(e)(2); Friend v. Ark Dep’t of Human Servs., 2009 Ark. App. 606, 15, 344 S.W.3d 670, 678; Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). Permanent relative placement is listed as the fourth preference. See Ark.Code Ann. § 9-27-338(c)(4). Thus, |saccording to the public policy of this state, termination and adop tion are preferred to permanent relative placement.
McElwee argues that the facts of the present case are similar to Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851. In Cranford, where this court reversed the circuit court’s finding that it was in the best interest of the child to terminate parental rights where the minor child had been placed with his grandparents. We held that the evidence was insufficient to establish that termination of either parent’s parental rights would serve the child’s best interest because there was no danger in allowing the parents to have continued contact with the child. Id. at 11-12, 378 S.W.3d at 856-57.
There is some similarity between Cran-ford and the present case in that the minor child had been placed with a relative; however, the differences between the cases are determinative. In Cranford, there was no evidence of abuse, whereas in the present case M.M. had a one-and-a-half-inch by four-inch burn on his leg that the physician stated was not caused by contact with a heating vent, as the parents had claimed. In Cranford, domestic abuse was not an issue; however, in the present case, the child was removed from the home because of McElwee’s physical abuse of Melody, which he denied had ever occurred. Also, drug abuse was not present in Cranford, whereas drug-related issues are at the core of this case. At the time of the termination hearing, McElwee was serving a lengthy prison sentence for delivery of methamphetamine. During the pendency of the case, he had been arrested on other drug-related charges and had been incarcerated for short periods of time and then released. The only evidence McElwee presented to indicate he had sought help with his drug issues was his own | intestimony that he had attended NA meetings while incarcerated. He did not provide documentation of his attendance. Clearly, the facts in this case are different from the facts in Cranford in that they support the circuit court’s finding that it was in M.M.’s best interest to terminate McElwee’s parental rights.
The circuit court in the present case found by clear and convincing evidence that it was in the best interest of M.M. to terminate parental rights. In making its best-interest finding, the circuit court specifically considered the likelihood of potential harm to the health and safety of the juvenile if he was returned to the custody of the parents: “The Court finds that the juvenile would be at great risk of harm if returned to the parents due to their drug use, mental-health issues, and inability to conform their behavior to the requirements of the law as evidenced by their chronic incarceration.” We hold that the circuit court’s conclusion that termination of McElwee’s parental rights was in M.M.’s best interest was not clearly erroneous.
Affirmed.
Hixson and Brown, JJ., agree.
. Hunt’s parental rights were also terminated, but they are not the subject of this appeal. | [
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RAYMOND R. ABRAMSON, Judge
11 Amber Kimble Shields appeals the Randolph County Circuit Court’s order awarding Mitchell Kimble $15,539.94 in attorney’s fees and costs for Shields’s contemptuous conduct and sentencing Shields to 120 days in jail if she did not pay the sum within 180 days. On appeal, Shields argues that (1) the contempt finding infringes on the principles set .forth in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) because a Montana court properly exercised emergency jurisdiction over the case; (2) the contempt finding is void, because the court’s order conflicted with a Montana order; (3) the contempt finding is invalid because she relied on professional advice to not return their daughter, B.K., to Arkansas; (4) the contempt finding is based on insufficient evidence; (5) the hearings on September 13, 2010, and June 30, 2014, violated her due-process rights; and (6) the courtjordered2 supervised visitation violated her due-process rights and her right as a fit parent. We affirm.
The parties have been engaged in extensive litigation beginning with their divorce in the Randolph County Circuit Court on May 2, 2007. In the uncontested divorce decree, the court awarded custody of B.K. to Shields subject to visitation with Kim-ble. Shortly after the divorce, in September 2007, Shields and B.K. moved to Montana.
On May 30, 2008, Kimble filed a petition for change of custody or to set specific visitation in the Randolph County Circuit Court. On June 26, 2008, Shields filed an objection to jurisdiction, alleging that Arkansas did not retain jurisdiction of the case under the UCCJEA and that Montana would be a more appropriate forum to determine the best interest of the child. In July 2008, Shields married Jeremy Shields.
On August 25, 2008, Shields informed the court that Kimble had lodged with the Montana Department of Human Services (“MDHS”) an allegation of sexual abuse of B.K. that was still being investigated. Specifically, the allegations of abuse stemmed from the child’s statements to Kimble that Jeremy had showered with her.
On November 13, 2008, the circuit court denied Shields’s objection to jurisdiction. Oh April 14, 2009, the court held a hearing on Kimble’s petition to change custody, and on May 7, 2009, the court granted Kimble’s petition and awarded him custody of B.K., subject to reasonable visitation with Shields.. Shields appealed the May 7, 2009 order to this court, [Sasserting that thé circuit court should have declined jurisdiction and erred in awarding Kimble custody of B.K.
During the appeal proceedings, on August 20, 2009, Shields petitioned the Randolph-County Circuit Court for an- emergency change of custody, alleging that B.K’s stepbrother in Arkansas had sexually abused her. The Arkansas State Police Crimes-Against Children investigated the allegations and found them unsubstantiated. The circuit court then denied Shields’s petition. On June 2, 2010, this court affirmed the circuit court’s May 7, 2009 order. See Shields v. Kimble, 2010 Ark. App. 479, 375 S.W.3d 738.
On August 3, 2010, while B.K. was visiting Shields in Montana for the summer, MDHS filed a petition for emergency legal custody of B.K. in the Park County District Court in Montana (“the Montana district court”). The petition alleged that B.JL’s stepbrother in Arkansas had-inappropriately touched B.K.- The Montana district court granted the petition but placed physical custody ,of B.K. with Shields. The order limited the custody to six months; however, the Montana district court .extended the temporary .custody multiple times throughout 2012.
On September 9, 2010, Kimble filed an emergency ex parte motion to enforce the UCCJEA in the Randolph County Circuit Court. Kimble informed the circuit court about the. proceedings in Montana and asked the court to retain jurisdiction of the case. Following an ex parte hearing, on December 8, 2010, the Randolph County Circuit Court entered an order retaining jurisdiction, noting that the allegations concerning B.K.’s stepbrother had been “exhaustively investigated” by the State of Arkansas. The court also noted that, upon the |4petition from MDHS, the Montana district court should have communicated with the Arkansas court concerning the issue of jurisdiction but it did not. The court stated.that it had attempted to contact the Montana judge, but the judge’s secretary informed him that the judge was unavailable for a .month or longer while he was campaigning for his race for a seat on the Montana Supreme .Court. The court further ordered that Shields shall “return the parties’ minor child .... to the State of Arkansas” within two'weeks. The court noted that if Shields failed to return B.K. to Arkansas, contempt proceedings would be held.
On December 22, 2010, Shields filed a motion for a new trial and for relief from the December 8, 2010 order from the Randolph County Circuit Court, asking the court to vacate its order retaining jurisdiction. Shields'asserted that she was-not afforded an opportunity to respond to Kimble’s motion and that the allegations in Montana were well founded. The court did not issue a ruling on her motion.
On September 6, 2012, Kimble filed. a petition to show cause in the Randolph County Circuit Court. He informed the court that Shields had not returned B.K. to Arkansas and asked the court to enter a show-cause order. On that same day, the circuit court entered a show-cause order directing Shields “to appear in the courtroom of the above styled case on the 8th of November 2012, at 9:00 a.m. to show cause "why she should not be held in contempt for failing to comply with [the c]ourt’s order of December, 2010.”
■ |ROn November 8, 2012, Shields failed to appear, and on that same day, the circuit court entered an order finding Shields’in contempt. The court stated that “on the 8th of November 2012 [Shields] was not present in the'court to show cause why she should not be held in contempt” and that it “therefore [found her] in [c]ontempt for not complying with the [c]ourt’s: order to show cause.” The court ordered that a writ of body attachment issue and found that the issue of fees and. costs would.be determined after a full hearing. On November 8, 2012, the court issued a body attachment for contempt and filed a letter from MDHS on the record. The letter informed the Randolph .County. Circuit Court that the Montana district court had ordered temporary legal custody of B..K-with the MDHS and that Shields had been unable to return the child to Arkansas.
On January 4,2013, the Montana district court entered an order placing permanent custody of B.K. with Shields. Kimble appealed the order to the Montana Supreme Court.
On January 23, 2013, Kimble renewed his petition- to show cause with the Randolph County Circuit Court. He informed the court that the Montana district court had placed permanent custody of B.K. with Shields. Kimble asserted that, because the court had placed permanent custody of the child with Shields, she “no longer ha[d] the excuse of not being able to return the child to Arkansas because of the child being in Montana’s custody and not her own.”
On January 28, 2013, Shields filed a motion to set aside the November 8, 2012 contempt finding and to quash the body attachment. On February 4, 2013, Shields filed a motion to dismiss Kimble’s renewed petition to show cause. She asserted that the circuit court | Jacked jurisdiction over the case because the Montana district court had jurisdiction.
On April 25, 2013, Shields' filed a motion to waive jurisdiction for inconvenient forum. She also asserted that the circuit court did not have jurisdiction because the Montana district court had exercised jurisdiction pursuant to the UCCJEA.
On August 6, 2013, the Montana Supreme Court reversed the district court’s order placing permanent custody of B.K. with Shields. The court noted that MDHS had conceded that the district court had “exceeded its jurisdiction under the UC-CJEA.” The court vacated all the district court’s orders’ concerning B.K. as “void for lack of jurisdiction.”
On August 20, 2013, the Randolph County Circuit Court issued an order denying Shields’s motion to waive jurisdiction. On August 27, 2013, Kimble filed a motion to modify visitation in the circuit court. He asserted that he had retrieved B.K. from Montana and that he had learned that Shields planned to visit B.K. on August 31, 2013. He asked the court to order supervised visitation. ■
On September 24, 2013, Kimble filed a motion for attorney’s fees in the Randolph County Circuit'Court. He noted that the court had found Shields in contempt of court in November 2012, and that the court had ordered that the issue of fees and costs would be determined after a hearing. He asserted that his attorney’s fees and costs for defending the suit had “swelled -between $12,000 and $18,000.” He asked that the court allow him to present evidence of the fees and costs at a hearing.
On November 22, 2013, the court entered an order modifying Shields’s visitation to only supervised visitation. The court deferred the issue of attorney’s fees until a final hearing.
|7On January 15, 2014, Kimble filed. a motion for an order regarding contempt remedies.
On February 13, 2014, Shields filed a motion to set aside the body attachment for contempt. She pointed out that B;K, had returned to Arkansas and was in the custody of Kimble. On June 11, 2014, Shields filed a motion for emergency temporary relief and to modify custody.
On June 30, 2014, the court held a hearing. The court first addressed Shields’s motion for emergency temporary relief and to modify custody. The court limited the hearing on the emergency motion to one hour. The court then addressed Kim-ble’s motion for attorney’s fees and costs. Kimble introduced into evidence' the receipts of his attorney’s fees from the Montana and Arkansas proceedings and receipts of his travel costs for his trips to and from Montana for hearings. He also testified about those expenses. He further admitted that he received some child-support payments from Shields when B.K. was not in his custody and that he had used that money to help pay for the legal and travel expenses.
Kimble also called Shields to the stand. She admitted that MDHS had placed custody of B.K. with her on January 4, 2013; that she had control of B.K. at that time; and that she knew about the outstanding order to return B.K. from the Arkansas court. She explained that she did not return B.K. to Arkansas when MDHS placed permanent custody of B.K. with her because B.K.’s counselors and MDHS were developing a transition plan . for B.K.’s return to Arkansas. Shields also admitted that she knew the circuit court had ordered her to appear on November 8, 2012, to show cause why she did not return B.K. to Arkansas and that she did not appear at the hearing. She stated..that she contacted her attorneys about the show-cause border and that they informed her that the letter from the Montana district court “would suffice.” Shields also testified that she did not return B.K. to Arkansas for twenty ■ days following the Montana Supreme Court’s order because DHS and B.K.’s counselors were developing a transition plan. In her closing arguments, Shields asserted that she was only acting pursuant to what MDHS had told her and for the best interest of B.K.
At the conclusion of the hearing, the court awarded Kimble $15,539.94 in attorney’s fees and costs and sentenced Shields to 120 days in jail if she failed to pay the sum within 180 days. The court entered a written order on December 22, 2014, that reflected its oral pronouncement.
Shields appealed the December 22, 2014 order to this court on December 30, 2014. On appeal, Shields argues that (1) the contempt finding infringes on the principles set forth in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) because a Montana court properly exercised emergency jurisdiction over the case; (2) the contempt finding is void because the court’s order conflicted with the Montana order; (3) the contempt finding is invalid because she relied on professional advice to not return their daughter, B.K., to Arkansas; (4) the contempt finding is based on insufficient evidence; (5) the hearings on September 13, 2010, and June 30, 2014, violated her due-process rights; and (6) the court-ordered supervised visitation violated her due-process rights and her right; as a fit parent.
[t/The court will first address Shields’s four arguments concerning the court’s contempt finding. Contempt is categorized into criminal contempt and civil contempt. Ward v. Ward, 2014 Ark. App. 261, 434 S.W.3d 923. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Id. Civil contempt, on the other hand, protects the rights of pri vate parties by compelling compliance with orders of the court made for the benefit of private parties. Id. Civil contempt can be either compensatory or coercive in nature. Holifield v. Mullenax Fin. & Tax Advisory Grp., Inc., 2009 Ark. App. 280, 307 S.W.3d 608. A compensatory penalty is a remedial fine to compensate one party for the other party’s noncompliance. Id.
In this case, the circuit court did not state whether it was holding Shields in civil or criminal contempt. However, the record reveals that, in addition to the purpose of compensating Kimble for Shields’s noncompliance with the court’s order, the fine imposed was for the purpose of punishing Shields’s deliberate interference with the court’s order. Thus, this was both a civil and a criminal contempt proceeding. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).
We apply the standard of review for criminal contempt because it, as well as the burden of proof, is. stricter than that for civil contempt. Id, In a criminal contempt proceeding, proof of contempt must exist in the circuit court beyond a reasonable doubt. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). On appellate review, we consider the evidence in the light | inmost favorable to the circuit court’s decision concerning the contempt and affirm if there is substantial evidence to support its decision. Henry, 309 Ark. 336, 832 S.W.2d 467.
To establish contempt, there must be willful disobedience of a valid order of a court. Holifield, 2009 Ark. App. 280, 307 S.W.3d 608. Contempt is a matter between the judge and the litigant, not between two opposing litigants. Id. Before a person can be held in contempt for violating the court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id.
Shields first asserts that the contempt finding infringes on UCCJEA principles becáuse Montana properly exercised emergency jurisdiction over B.K. pursuant to the UCCJEA. Regardless of whéther Montana properly exercised emergency jurisdiction, on September 6, 2012, the court ordered Shields to' appear on November 8, 2012, to show cause why she did not return B.K. to Arkansas, and Shields failed to appear. Shields admitted at the June 14, 2014 hearing that she knew about the court’s show-cause order but chose to not appear on that date. Accordingly, whether Montana properly exercised jurisdiction over B.K. does not excuse Shields from appearing before the circuit court.
Shields next argues that the contempt finding is void because the court’s order to return B.K. to Arkansas conflicted with Montana’s order that B.K. remain in MDHS custody; thus, she claims, the order was unclear on the duty it imposed. Again, the circuit court held Shields in contempt only after she failed to appear at the November 8, 2012 hearing to show cause why she had not returned B.K. to Arkansas. The September 6, 2012 order clearly directed Shields “to appear in the courtroom of the above styled case on the 8th of, November |n2012.” , Accordingly, the circuit court’s order was clear on the duty it imposed on Shields.
Shields also argues that the contempt finding is invalid because she relied on professional advice to not return B.K. to Arkansas because the alleged sexual abuser, B.K.’s stepbrother, resided there. In making her argument, Shields relies on our decision in Wakefield v. Wakefield, 64 Ark. App. 147, 984 S.W.2d 32 (1998). In Wakefield, this court reversed a trial court’s contempt finding against a mother who denied a father court-ordered visita tion of their child because a counsélor and a doctor had reported to her that they suspected sexual abuse of the child by her paternal grandfather. Id. This court stated. that it could not hold “a mother who is legitimately concerned about the welfare of her child and has acted upon the advice of DHS and qualified professionals ... in willful contempt of court.” Id. at 155, 984 S.W.2d at 36. At the contempt hearing, the mother presented expert witnesses’ testimony that they saw signs of sexual abuse in the . child, and the father’s expert witness testified that she could not preclude the possibility of sexual abuse. Id.
We hold that the circumstances in Wakefield are distinguishable from the circumstances in this case. Here, the court did not hold Shields in contempt solely for denying Kimble access to B.K. The court held her in contempt for failing to appear at the November 8, 2012, hearing to show cause why she had not returned B.K. to Arkansas. Accordingly, Wakefield is inapplicable to this case.
Shields also argues that the contempt order is based on insufficient evi-dénce. In making her argument, Shields maintains that the sexual-abuse allegations against B.K’s stepbrother were founded and that she and MDHS were only trying to protect B.K. Again, regardless of 11 .whether sexual-abuse allegations were founded, Shields admitted at the June 14, 2014 hearing that she knew about the court’s order to appear on November 8, 2012, and that she failed to appear on that day. Accordingly, sufficient evidence supports the contempt finding.
Shields next argues that her due-process rights were violated when the court held the ex parte hearing on September 13, 2010, on Kimble’s emergency ex parte motion. She also asserts that her due-process rights were violated when the court addressed the contempt sanctions at the June 14, 2014 hearing.
As to,Shields’s argument concerning the September 13, 2010 hearing, she failed to raise a due-process argument in her motion for a new trial filed following the ex-parte proceedings. We will not consider an issue raised for the first time on appeal. Morgan v. Century 21 Perry Real Estate, 78 Ark. App. 180, 79 S.W.3d 878 (2002) (holding that an issue was not preserved for review when the appellant failed to raise the issue as a basis for his motion to set aside a default judgment). Shields also failed, to raise the issue of due process when the court considered Kim-ble’s motion for sanctions at the June 14', 2014 hearing. She did not ask that the court continue the hearing. Instead, she defended herself and presented testimony. Accordingly, Shields’s due-process arguments concerning the September 13, 2010 hearing and the June 14, 2014 hearing are not preserved for our review, and we afr firm on these points.
Shields finally argues that the court’s order of supervised visitation violated her due-process rights and her right as a fit parent. Shields has failed to present this court with convincing and developed arguments on this issue. Our supreme court has held that the failure to develop a point legally or factually is reason enough to affirm., the circuit .court. 13Walters v. Dobbins, 2010 Ark. 260, 370 S.W.3d 209. Accordingly, because Shields failed to present convincing and developed arguments on how her due-process rights and her right as a fit parent were violated by the court’s order óf supervised visitation, we affirm on this point.
Affirmed.
Harrison and Glover, JJ., agree.
. This is the second time this case has been before this court. Wc initially ordered a supplemental addendum due to deficiencies. Shields v. Kimble, 2016 Ark. App. 26, 2016 WL 253698.
.' The court also ordered the Arkansas Départment of Human Services to arrange an evaluation of B.K.’s stepbrother and that the re-suits' should be immediately delivered to the Montana district court.
. The court also ordered Shields to pay $4,261 in child-support arrearages.
. In his response, Kimble asserts that this court does not have jurisdiction to address Shields’s contempt arguments because she failed to' timely appeal the contempt order, Specifically, Kimble notes that the court entered its order finding Shields in contempt on November 8, 2012, but Shields did not file her notice of appeal until December 30, 2014. Kimble's argument is without merit. An order of contempt is not final and appealable where no- sanctions have been imposed. Shafer v. Estate of Shafer, 2010 Ark. App. 476, 2010 WL 2195997. Here, the circuit court did not impose sanctions until it "entered its December 22, 2014 order. Therefore, Shields’s notice of appeal was timely. | [
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DAVID M. GLOVER, Judge
hBeth’s Bail Bonds, Inc. (Bail Bonds), appeals from the March 2, 2015, bond-forfeiture judgment and the March 9, 2015 order denying its motion to set aside the bond-forfeiture judgment. Bail- Bonds raises four .points of appeal: 1) the bond-forfeiture judgment should not have been entered because the. defendant, Robert Lewis Ford, was in the Pulaski County Detention Center on the day of the hearing; 2) the trial court abused its discretion by not granting Bail Bonds, a continuance to.have counsel present; 3) the-provisions of, Arkansas Code Annotated section 16-84-207 (Repl. 2005) were not followed in that the trial court did not issue a warrant when Ford missed his court date; and 4) the trial court abused its discretion by not setting aside the bond-forfeiture judgment pursuant to Rule'60 of ..the Arkansas Rules of Civil Procedure. We affirm.
Bail Bonds wrote a $20,000 bail bond for Robert Lewis Ford in Case No. CR13-2394. On November 17, 2014, Ford -failed to appear for court, and a summons and order to show cause were sent to Bail Bonds on that day, ordering it to appear in court on February |223, 2015, and show cause why Ford’s bond should not be for-' feited due to his failure to appear. It is undisputed the February 23 hearing was cancelled due to inclement' weather and rescheduled for February 25,-2015.
David Viele, who is not an attorney, appeared on behalf of Bail Bonds at the February 25, 2015 hearing. He informed the court that Bail Bonds’s counsel was not available-to come on .that day, -further explained that no‘warrant had been issued on Ford,' and asked the court to reset the show-cause hearing for March 9, when' an other bail matter involving Ford and a different bail-bond company was to be addressed. The judge responded by saying, “All right. Judgment for the county for $20,000.”
Ford was not present at the February 25 hearing, but Bail Bonds discovered that afternoon that he had been in the Pulaski County Jail since February 24, 2015. Thinking the bond-forfeiture judgment had already been entered, Bail Bonds filed a motion to set aside the forfeiture judgment on that same date, February 25, 2015. In it, Bail Bonds’s basic arguments for setting aside the forfeiture were that Ford had been in custody since February 24; that he was still in custody at the time of the bond-forfeiture hearing on February 25; and that there was no evidence a warrant had ever been entered in the ACIC/NCIC system based on Ford’s failure to appear on November 17,2014.
On March 2, 2015, the trial court actually entered the bond-forfeiture judgment against Bail Bonds in the amount of $20,000. A hearing on the motion to set aside was held March 9, 2015. Bail Bonds’s counsel was present at that hearing and argued the motion. The trial court denied the motion, and an order to that effect was entered on March 9, 2015.
laFor ease of discussion, we will address Bail Bonds’s arguments in a slightly different order, beginning with the first and third points, followed by the second point and then the fourth point. Bail Bonds first contends the bond-forfeiture judgment should not have been entered because Ford was in the Pulaski County Detention Center on the day of the hearing. We disagree.
In M & M Bonding Co. v. State, 59 Ark. App. 228, 233, 955 S.W.2d 521, 524 (1997) (citations omitted), our court explained in pertinent part:
Although the surety is not expected to keep the principal in physical restraint he is expected to keep close track of his whereabouts and keep him within this state subject to the jurisdiction of the court.
The surety is not released from forfeiture except where an act of God, the State, or of a public enemy, or actual duress prevents appearance by the accused at the time fixed in the bond. Absent one of those excuses the failure of an accused to appear at the time fixed is sufficient basis for forfeiture.
Proceedings after forfeiture are summary ones. The order to show cause pursuant to [the statute] merely affords the bondsman an opportunity to be heard with respect to remission of all or some part of the forfeiture.
Where the principal does not appear there is no exoneration from liability under the bond, regardless of the extent of the search by the surety, if the surety shows no more than a disappearance of the principal. The trial court’s authority to remit a forfeiture when the accused is subsequently surrendered by the surety is discretionary and that discretion will not be interfered with unless it is arbitrary or abused. It devolves upon the bail bondsman to establish facts which justify favorable action in the exercise of the trial court’s discretion, and the failure to allow him even his expenses in this matter is not necessarily an abuse of the court’s discretion. The mere fact that the bail takes the accused into custody after the forfeiture and surrenders him to the authorities, even during the same term of court, does not entitle the bail to a right to remission of the penalty, even though the return of the principal was at the expense of the surety.
(Emphasis in original.) See also Ark. Code Ann. § 16-84-207(b)(1) (“If the de fendant fails to appear at any time when the defendant’s presence is required under subsection (a) of this | ¿section, the circuit court shall ... adjudge the bail bond of the defendant or the money deposited in lieu thereof tobe forfeited, ”) (Emphasis added.)
Here, the most critical date regarding the bond forfeiture was November 17, 2014 — the date when Robert Ford failed to appear in court for a scheduled hearing. Bail Bonds acknowledges that more than seventy-five days had passed by the time Ford was confined in jail in February on different charges, making the issue one that clearly involved the trial court’s discretion. See Ark. Code Ann. § 16-84-207(c)(2)(A). Further, Ford’s capture was not achieved by Bail Bonds. Without citing any legal authority, and relying on an argument we do not find convincing, Bail Bonds asks us to reverse the bond-forfeiture judgment based on the fact Ford was in custody -at the time of the show-cause hearing. We find no abuse of the trial court’s discretion and decline to reverse the bond-forfeiture judgment on that basis.
Bail Bonds next contends the provisions of Arkansas Code Annotated section 16-84-207 were not followed because the trial court did not issue a warrant when the defendant missed his court date. Again, we find no basis for'reversal.
Arkansas Code Annotated section 16-84-207 provides in pertinent part:
(b)(1) If the defendant fails to appear at any time when the defendant’s presence is required under section (a) of this section, the circuit court shall enter this fact by written order or docket entry, adjudge the bail bond of the defendant or the money deposited in lieu thereof to . be forfeited, and issue a warrant for the arrest of the defendant.
(Emphasis added.)
It is undisputed that an arrest warrant for Ford was not issued immediately after he had failed to appear at the November hearing even though the trial court stated at the November, hearing that one was to issue. In fact, an arrest warrant was not issued -until after 15Ford was already in jail on another charge. However, it is also undisputed the summons and show-cause order were entered, the same day that Ford failed to appear.
Bail Bonds relies on First Arkansas Bail Bonds, Inc. v. State, 373 Ark. 463, 284 S.W.3d 525 (2008), to support its contention we should reverse the bond-forfeiture judgment because the trial court did not strictly comply with the requirements of Arkansas Code Annotated section 16-84-207(b)(1). We are not convinced. First Arkansas addressed with the statutory requirement that a summons be “immediately” issued to the surety by the circuit clerk. See Ark. Code Ann; § 16-84-207(b)(2)(B) (“The circuit clerk shall ... [ijmmediately issue a summons on each surety...!") First Arkansas does not address the issuance of an arrest warrant, which is described in a different subsection of the statute. Our supreme court construed the statute “just as it reads, and [gave] the words their ordinary and usually accepted meaning in the common language,” holding that the summons was not issued “immediately” as required by the statute. Our supreme court further explained, “Because our case law clearly states that we strictly construe statutory service requirements,” reversal of the circuit court’s forfeiture judgment was required.
Here, we are dealing with the issuance of an arrest warrant for a defendant who failed to appear, not the issuance of a summons on a surety, so the long history of case law requiring the strict construction of statutory-service requirements is not applicable. The subsection of the statute at issue, here does not contain the directive for “immediate” issuance. Consequently, we do not find First Arkansas controlling, Bail Bonds has not offered any other authority for its position, and we are not convinced that the circumstances presented here require reversal of the bond-forfeiture judgment. .
|fiBail Bonds next contends the trial court abused its discretion by not granting it a continuance to .have counsel present at the February 25 show-cause hearing. We find no basis for reversal under this point.
Bail- Bonds appeared in court through an agent, who explained that Bail Bonds’s counsel was unable to be there. We agree with Bail Bonds’s contention that a corporation cannot appear in court pro se — that it.can only be represented in court through a licensed attorney. However, even if we were to conclude that the trial court abused its discretion in refusing to grant a continuance for the show-cause hearing, we are unable to find that Bail Bonds was prejudiced in any fashion.
Bail Bonds subsequently filed its motion to set aside the bond-forfeiture judgment, contending that Ford was in custody in Pulaski County on the date of the forfeiture hearing, and that there was no evidence a warrant had ever been entered in the ACIC/NCIC system as a result of Ford’s failure to appear at the November hearing. Bail Bonds was afforded a hearing on this motion on March 9, 2015 where it was represented by,counsel. In addition to the bases asserted in its motion, Bail Bonds also argued that the denial of its request for a continuance at the show-cause hearing provided a reason for setting aside the judgment.
We have already explained why the “in custody” and “lack of an arrest warrant” arguments have no merit, and Bail Bonds has" provided no further rationale as to Why the denial of'its-- request for a continuance prejudiced- its position. Consequently, Bail Bonds has not demonstrated in any fashion how it was harmed by the denial of a- continuance, and we will not reverse the trial court under these circumstances when there has been no showing of prejudice.
|7For its final point of appeal, Bail Bonds contends the trial court abused its discretion by not setting aside the bond-forfeiture judgment pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. We disagree.
In arguing its motion to set aside, Bail Bonds relied on the portion of Rule 60 that is designed “to prevent the miscarriage of justice”:
(a) Ninety-Day Limitation, To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
(Emphasis added.) The motion to set aside listed two primary bases for doing so: .1) Ford had. been in custody in the Pulaski County jail. since, February 24, 2015, which preceded the February 25 bond-forfeiture hearing; and 2) there was no evidence a warrant had been entered in the ACIC/NCIC system as a result of Ford’s failure to appear. At the hearing on the motion, Bail Bonds additionally asserted the denial of its request for a continuance as a basis for setting the judgment aside. We have fully discussed these three issues and why they do not provide a basis for reversal of the bond-forfeiture judgment. Nor do they demonstrate that the trial court abused its discretion in denying the motion to set aside.
Affirmed.
Kinard and Hoofman, JJ., agree.' | [
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M. MICHAEL KINARD, Judge
| ¶Jimmy Christopher McMullin appeals from his convictions -at a jury trial of four counts of rape and two counts of sexual indecency with a, child,' for which he was sentenced as a habitual offender to concurrent terms totaling forty-five years’ imprisonment. The offenses were alleged to have been committed against three children — a former stepchild, a child of a girlfriend, and a friend of appellant’s daughter — while the children were visiting in appellant’s home or while appellant accompanied the children on activities like fishing, camping, . or swimming. Appellant does not challenge, the sufficiency of the evidence to support the convictions. Instead, he makes three arguments that the trial court erred in the admission or exclusion of evidence. .We find no. merit in appellant’s arguments. For reasons, explained below, we affirm as modified and remand to the trial court for entry of a corrected sentencing order.
|2AppeIlant first contends that the trial court erred in denying his request to introduce evidence of specific instances of his good conduct with children in the victims’ age range. His attorney offered to present as defense witnesses two of appellant’s adult friends and their two boys (not the victims in this case), who would testify that
[appellant] had been a mentor to these sons, that he had spent lots of time alone with them, taking them fishing. He had ..; camped overnight with them, and the boys would testify, too, that he never did anything inappropriate with them. And the parents would testify ... that their sons never told them anything like that, and they were perfectly fine with [appellant] being alone with their sons.
The prosecutor objected to appellant’s request on grounds that evidence of specific instances of good conduct was inadmissible. The trial court agreed with the prosecutor, ruling that appellant could not offer evidence of specific instances of his conduct in order to show good character but that he could offer character evidence through reputation or opinion testimony.
The admission of evidence is a matter that lies within the sound discretion of the trial court. Todd v. State, 2012 Ark. App. 626, 425 S.W.3d 25. The exercise of that, discretion will not be reversed on appeal in the absence of a manifest abuse. Nelson v. State, 2013 Ark. App. 421, 2013 WL 3282946. Rule 404(a) of the Arkansas Rules of Evidence discusses character evidence generally:
Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of an accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.
IsRule 405, in turn, addresses appropriate methods of proving character:
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowed into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
As Justice George Rose Smith explained in McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978):
Rule 405 is taken verbatim from Rule 405 of the Federal Rules of Evidence. 28 U.S.C.A., Federal Rules of Evidence (1975). The Advisory Committee’s Notes to the federal rule explain why direct evidence of specific conduct is limited to instances in which the trait of conduct is squarely in issue:
Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion.
Thus the question is, when is a trait of character strictly in issue? The answer, in the language of Rule 405(b), is when the trait is “an essential element of a charge, claim, or defense.”
The common-law rules of evidence, which have not really been changed by the [Arkansas] Rule, set the point at rest. The trait of character must be an operative fact which under substantive law determines the rights and liabilities of the parties. McCormick, Evidence, § 187 (2d ed., 1954). For example, in a tort case involving the defendant’s asserted negligent entrustment of his vehicle to an incompetent driver, the plaintiff must show as a part of his substantive proof that the defendant was aware of the driver’s trait of incompetence. Proof of specific instances of incompetence is therefore admissible. Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341, 8 A.L.R.2d 261 (1949). Again, if the plaintiff sues for slander because the defendant | ¿called him a liar, and the defendant pleads as a defense that the plaintiff is a liar, the plaintiff S' character as a truthful person is an essential element of the defense. Specific instances of the plaintiffs lies would therefore be admissible at common law. See Wigmore, Evidence, §§ 202 and 207 (3rd ed., 1940).
McClellan, 264 Ark. at 226-27, 570 S.W.2d at 279-80 (emphasis in original).
Appellant makes no convincing argument and cites no authority for allowing proof of specific instances of good conduct on direct examination here. The cases cited by appellant all held that a relevant trait of good character could be proved by reputation or opinion evidence — some thing that the trial court’s ruling here expressly permitted. We do not agree with appellant that a “trait”, of “[sexual] morality with respect to minors” is an “essential element” of his defense of innocence to the charges in this case. We cannot conclude that the trial court abused its discretion in denying appellant’s request to offer proof of specific instances of his good conduct.
Appellant next contends that the trial court erred in denying his motion to admit the entirety of a journal written by one of the victims. The State was allowed to introduce two pages of the victim’s journal, consisting of entries describing the incidents of sexual abuse by appellant. The trial court denied appellant’s motion to introduce the entire journal on grounds that it contained other matters that were not relevant to the issues being tried, but the court stated that appellant would be allowed to cross-examine the victim regarding any other relevant information in the journal.' Citing Arkansas Rule of Evidence 106, appellant argues on appeal that the State should have been required to introduce the entire journal.
[sWe hold that appellant failed to preserve this argument for appeal by failing to proffer the evidence that he wanted to have introduced.
Arkansas Rule of Evidence 106 provides as follows:
Whenever a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.
Rule 106 is directed toward preventing a misleading impression that may be created by taking a statement out of context. Shiver v. State, 37 Ark.App. 146, 826 S.W.2d 309 (1992). It is not absolute; the right to put in the remainder of a statement as part of the opponent’s case is subject to the general principles, .of-relevancy. Id. The rule is not designed to make something admissible that should be excluded. Id. When evidence is excluded by the circuit court, the party challenging that decision must make a proffer of the excluded evidence at .trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. Means v. State, 2015 Ark, App. 643, 476 S.W.3d 168.
Here, appellant did not ask the trial court to review the entire journal, and he made no effort to proffer the journal for the record. Without a proffer of the journal, we are in no position to determine whether the trial court erred in ruling that it contained irrelevant information or whether appellant suffered any prejudice due to its exclusion from evidence. See Means, supra; Rodriguez v. State, 2014 Ark. App. 660, 449 S.W.3d 306. As such, appellant’s argument is not preserved for appeal,
Appellant’s final argument is that the State was erroneously allowed to introduce hearsay for the improper purpose of bolstering the testimony of one of the victims. | flSpécifically, he argues that the two pages of the victim-witness’s journal, discussed above, contained prior consistent statements of the witness and were inadmissible hearsay. Again, we conclude that appellant’s argument is not preserved for appeal,
When the State offered the journal pages for introduction at trial, appellant objected as follows:
Judge, I think the entries were a long time after the allegations when that was supposed to have happened, and it’s not a contemporaneous writing. It could be after [the victim] was interviewed by the police. I don’t know;
After the State responded that the child “started writing this journal before this case ever started,” appellant stated, “Okay. I just wanted to be sure.” He did not object on hearsay grounds or on the basis that the evidence was improperly offered as;prior consistent statements to bolster the witness’s testimony. An appellant is bound by the nature and scope of his objection at trial; he cannot change his argument on appeal. Snow v. State, 2013 Ark. App. 494, 2013 WL 5273014.
One additional matter requires our attention., In the sentencing order for case number CR-2014-159, appellant was sentenced to forty-five years’ imprisonment for the second count of the Class “D” felony sexual indecency with a child. That aspect of the sentencing order appears to be a clerical misprision. The jury fixed appellant’s sentence for that offense at twelve years, and the trial court was without authority to increase a term of imprisonment, within the legal range, fixed by the jury. See Ark.Code Ann. § 5-4-103(a) (Repl. 2013); Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). In any event, even a habitual offender, with three prior felonies, such as appellant, cannot be sentenced to more than twelve |7years for a Class “D” felony. See Ark.Code Ann. § 5-4-50i(a)(2)(E) (Repl. 2013). Therefore, to the extent that the sentence for sexual indecency exceeds twelve years, it is illegal. See Perez v. State, 2015 Ark. 120, 2015 WL 1332363 (sentence is illegal on its face when it exceeds statutory maximum for offense); Cline v. State, 2011 Ark. App. 315, 2011 WL 1573132 (issue of facially illegal sentence may be raised and corrected .by appellate court sua sponte). We modify appellant’s sentence for the referenced offense to twelve years’ imprisonment and remand for the trial court to enter an amended judgment and sentencing order consistent with that modification. In all other respects, the judgments are affirmed.
Affirmed as modified and remanded.
Glover and Hoofman, JJ., agree.
. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Finnie v. State, 267 Ark. 638, 593 S.W.2d 32 (1980); State v. Rothwell, 154 Idaho 125, 294 P.3d 1137 (Ct.App.2013),
. Appellant’s forty-five-year sentences for the rapes are not affected by this modification. | [
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WAYMOND M. BROWN, Judge
hAn Ashley County jury found appellant Amy Lee Ballinger guilty of theft of property, for which she was sentenced to sixty days in the county jail and placed on five years’ probation. Appellant was also fined $1.00 and ordered to pay $20,000.00 in restitution. On appeal, she argues that the evidence was insufficient to support her conviction. More-specifically, she argues that the State failed to prove how she “deceived” the victims or that she did so “knowingly with the purpose to deprive.” Because appellant did not preserve this argument for appeal, we affirm.
This court" has consistently held that Arkansas Rule of Criminal Procedure 33.1 requires that an appellant move for a directed verdict at the close of the State’s evidence and again at the close of all of the evidence, and that the failure to do so waives , a challenge to | gthe sufficiency of the evidence on appeal. In King v. State, we specifically held that the failure to renew a motion for directed verdict after the close of the State’s, rebuttal. testimony waived the issue of sufficiency of the evidence. At trial, appellant made a motion for directed verdict at the end of the State’s case and at the end of the defense’s case-in-chief; however, appellant failed to renew her motion .at the close of the State’s rebuttal testimony. We hold that appellant failed to preserve the question of sufficiency of the evidence by failing to properly renew the motion for directed verdict after the State’s rebuttal testimony. Accordingly, we affirm.
Affirmed.
Hixson, J., agrees.
Virden, J,, concurs.
. See, e.g., Davis v. State, 2009 Ark. 478, 348 S.W.3d 553; Flowers v. State, 362 Ark. 193, 202, 208 S.W.3d 113, 121 (2005); Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004); Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000).
. 338 Ark, 591, 999 S.W.2d 183 (1999). | [
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RHONDA K. WOOD, Associate Justice
I,Covenant Presbytery appeals from a Mississippi County Circuit Court’s order which applied the doctrine of cy pres to reform a trust. On direct appeal, Covenant Presbytery argues first that the circuit court erred in applying the cy pres doctrine because there was no charitable trust and because the gift to First Presbyterian vested upon the settlor’s death. Second, it argues that, if the circuit court was correct to apply cy pres, then the court’s application of the doctrine does not comport with the settlor’s intent. In its cross-appeal, First Baptist contends that the circuit court erred in denying its claim that the trustee, SunTrust, breached its fiduciary duty. We granted First Baptist’s petition for review of the court of appeals’ decision. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. See, e.g., In re Matter of Hamilton Living Trust, 2015 Ark. 367, 471 S.W.3d 203. We vacate the court of appeals’ opinion, reverse on the direct appeal, and dismiss the cross-appeal.
I. Factual and Procedural Background
In June of 1965, Stanley D. Carpenter executed a document entitled “Last Will and Testament” (“will”). The document named National Bank of Commerce trustee and executor,
I nominate, constitute and appoint the National Bank of Commerce in Memphis, Tennessee, as executor and trustee of my estate, granting to them full power and authority to take possession of, hold, manage, invest and in every way to control and supervise all of my property in accordance with the terms of this Last Will and Testament and under the laws of the State of Arkansas; ...
Carpenter owned 237.87 acres of farmland in Mississippi County, and the will further provided that Carpenter’s four relatives each would receive a one-fourth interest in the “net farm rents” for “life.” Additionally, two Osceola churches, First Presbyterian and First Baptist, were to receive “[a]ll the rest, residue and remainder” of the estate in equal shares. The will directed the trustee “to sell all real estate in then-discretion as soon as the law permit[s], taking into consideration the existence of the life estates hereinbefore created, and distribution of the proceeds therefrom in accordance with this bequest.”
Carpenter died in 1967. When Carpenter’s will was probated, his farmland was transferred, pursuant to court order, to National Bank of Commerce, as trustee. National Bank leased the farmland and disbursed the income to the four life-estate beneficiaries. As |sa life-estate beneficiary died, National Bank would divide and re mit the deceased beneficiary’s income equally to First Presbyterian and First Baptist.
In 2004, First Presbyterian voted to dissolve its congregation. In an “Overture of Dissolution” all assets of the church that had not previously been sold or distributed were transferred to Covenant Presbytery. First Presbyterian notified National Bank that First Presbyterian had dissolved and requested that all future payments from Carpenter’s estate be made to Covenant Presbytery. Thereafter, National Bank distributed the income share to Covenant Presbytery.
In 2005, SunTrust acquired National Bank and succeeded as trustee for the trust. SunTrust continued to distribute payments to beneficiaries, including First Baptist and Covenant Presbytery. In 2011, a First Baptist board member contacted the trust advisor assigned to the trust and expressed his belief that the trust payments to Covenant Presbytery were improper. Thereafter, SunTrust filed a “Petition and Request for Instructions and Declaration of Rights” against First Baptist and Covenant Presbytery requesting that the circuit court determine the rights and interests of these parties in the farmland and its income. First Baptist counterclaimed against SunTrust for breach of fiduciary duty.
Following a bench trial in December 2012, the circuit court concluded that the will created a testamentary trust for the benefit of two churches in Osceola — First Presbyterian and First Baptist. Finding that Carpenter’s intention was to benefit churches in his community and that First Presbyterian no longer had a church in Osceola, the circuit court applied the cy pres doctrine and reformed the trust to provide that First Presbyterian’s distributions from the summer of 2011 forward should be transferred to First Baptist. The pcircuit court also held that SunTrust did not breach its fiduciary duty because it did not obtain actual knowledge of a potential dispute over payments with Covenant Presbytery until the summer of 2011. We granted First Baptist’s petition for review of the court of appeals’ decision to reverse and remand.
II. Appeal
This case is subject to a de novo standard of review. See In re Estate of Thompson, 2014 Ark. 287, 434 S.W.3d 877. The circuit court’s decision should not be reversed unless there is a finding that is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is left with a firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the circuit court to review the credibility of the witnesses. Id.
This court’s primary objective when construing the language in a will or trust is to ascertain and effectuate the intent of the testator or settlor as long as that intent is not contrary to the law. Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004). Where the language of a will expressly states the testator’s intention, the intent must be gathered from the four corners of the instrument. Id. It is only proper to invoke the rules of construction when the language is ambiguous. Id. In order to determine the intentions of the testator, consideration must be given to every part of the testamentary instrument. Id. Extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will or trust are ambiguous. Burnett v. First Commercial Tr. Co., 327 Ark. 430, 939 S.W.2d 827 (1997).
|BIn its first point on appeal, Covenant Presbytery argues that the will creat ed a testamentary trust for the sole purpose of managing the property and paying income to the life-estate beneficiaries. It contends that First Presbyterian’s interest vested upon Carpenter’s death and that the will did not direct the trustee to maintain the property for any charitable purpose; and therefore, the will did not create a charitable trust. Because First Presbyterian’s interest in the trust vested upon Carpenter’s death without limitation, it was freely assignable.
First Baptist agrees that the will created a testamentary trust for the administration of the life estate. However, it argues that the testamentary trust is also a charitable trust; and therefore, the churches’ interests did not vest upon Carpenter’s death. It further contends that First Presbyterian did not have an assignable interest in the property, and once First Presbyterian ceased to exist; it became proper for the court to employ the cy pres doctrine.
We agree with Covenant Presbytery’s first point on appeal. First Presbyterian’s interest vested upon Carpenter’s death; therefore, we do not address its second point regarding the court’s method of applying the cy pres doctrine. Covenant Presbytery correctly states that the churches are vested remainder beneficiaries. The Arkansas Trust Code, defines “beneficiary,” in part, as a person that “has a present or future beneficial interest in a trust, vested or contingent.” Ark.Code Ann. § 28-73-103(3)(A). A vested remainder is a “present interest that cannot be defeated by any contingency.” Dickerson v. Union Nat’l Bank of Little Rock, 268 Ark. 292, 298, 595 S.W.2d 677, 680 (1980). An interest in a vested | (¡remainder “can be transferred ... even though the right of possession may not accrue until some time in the future.” Id.
In Dickerson, we described the “simplest example” of a vested remainder as a conveyance or devise “to A for life, remainder to B.” Id. This is precisely the situation here: Carpenter conveyed the rents of the farm to four relatives for life and the remainder of his property to First Baptist and First Presbyterian. The will clearly states that Carpenter intended to give “[a]ll of the rest, residue and remainder of my estate ... in equal shares, and to each, an undivided one-half each, to the First Presbyterian Church . ■.. and the First Baptist Church.... ” This language created a present interest in the' churches, which vested on Carpenter’s death.
We reject First Baptist’s argument that First Presbyterian did not receive a vested remainder because the farmland was placed in a charitable trust. Because the will did not create a charitable trust, the cy pres doctrine was inapplicable. See Ark.Code Ann. § 28-73-413(a). The fundamental principle in construing a trust is to ascertain and effectuate the intent of the settlor. Bailey, 359 Ark. at 432, 198 S.W.3d at 413. Carpenter’s devise to First Baptist and First Presbyterian did not contain a charitable purpose, general or specific, for devising the farmland. Accordingly, the pertinent legal inquiry is whether a trust can be designated as charitable when no charitable purpose was identified by the settlor. Because we find that it cannot, we reverse the circuit court.
The Arkansas Trust Code defines a charitable trust as “a trust, or portion of a trust, created for a charitable purpose.” Ark.Code Ann. § 28-73-103(4). It is a “fiduciary relationship with respect to property arising as a result of a man ifestation of an intention to |7create it, and subjecting the person by whom the property is held to equitable duties to deal with property for a charitable purpose.” Restatement (Second) of Trusts § 348, Westlaw (database updated May 2014). In a charitable trust, “the beneficial interest is not given to individual beneficiaries, but the property is devoted to the accomplishment of purposes beneficial to the community.” Id. § 365 cmt a. In other words, when a charitable trust is created, legal title, is passed, to the trustee to hold it for the benefit of a charitable purpose. Charitable purposes include “the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.” Ark.Code Ann. § 28-73-405. As we have previously stated, “[i]n creating a charitable trust the settlor must describe a 'purpose of substantial public interest.” Kohn v. Pearson, 282 Ark. 418, 420, 670 S.W.2d 795, 796 (1984).
Although First Presbyterian and First Baptist are charitable organizations,1 the will neither provided that the devise was to serve a charitable purpose nor restricted the churches from using the farm’s proceeds for noncharitable purposes. Rather, a plain reading of the instrument reveals that the only identifiable purpose of the testamentary trust was to administer the life estates, which are not charities. The will directed the trustee to “give, devise arid bequeath” the residue of his property to the churches. It then directed the trustee “to sell all real estate in their discretion as soon as the law permitfe], taking into consideration the existence of the life estates hereinbefore created, and distribution of the proceeds therefrom in accordance with this bequest.” Giving these plain words their ordinary meaning, we find that the only duty Carpenter gave to the trustee was to hold the farmland | Ras a testamentary trust during the life of the lifetime beneficiaries and to thereafter distribute the proceeds of the property to the churches; It does not direct the bank trustee or the churches to ensure that the use of the property be for a purpose benefiting any charity. Our statute limits the application of cy pres to instances where a “particular charitable purpose becomes unlawful, impracticable, impossible . to achieve, or wasteful.” Ark.Code Ann. § 28-73-413(a). Since the will identifies no particular charitable purpose, cy pres could not be used to reform the trust.
First Baptist asserts that a charitable trust may be created as long as the beneficiary is a charity., In support of this statement, First Baptist relies on our decision in Curry v. Guaranty Loan Co., 212 Ark. 988, 208 S.W.2d 465 (1948). In that case, the settlor directed that his property be received by some organization selected by trustees “whose purpose is to discover a cure for rheumatism.” Id. She further provided .that if the trustees could not agree upon a suitable recipient, they might donate the fund to another- charitable institution. Id. Thus, the settlor identified the general purpose of the trust but. left the details of its administration to be settled by the trustee under the superintendence of the court. See id. This is not analogous to our case where no purpose, general or particular, was stated. Unlike in Curry,-no language in this will allows us to find a. charitable purpose, which is required to create a charitable trust. Accordingly, as First Presbyterian received a vested remainder interest upon Carpenter’s death and -.the will did not create a charitable trust, the circuit court erroneously applied the cy pres doctrine.
Finally, First Baptist argues that even if there was no charitable trust, Cove nant Presbytery has no interest in the farmland because First Presbyterian failed to deed its interest |9to Covenant Presbytery. This argument is unpersuasive. The parties admitted into the record a written document entitled “Stipulations Agreed By All Parties.” It provides that First Presbyterian named Covenant Presbytery as its successor in.interest and that Covenant Presbytery had acted as the successor in interest. First Presbyterian’s assets to which Covenant Presbytery succeeded included its interest in the remainder of Carpenter’s estate. This puts the issue of assignment squarely within the scope of the parties’ stipulation of fact. For this reason, we hold that per the parties’ stipulation, First Presbyterian assigned its rights under the trust to Covenant Presbytery.
III. Cross-Appeal
On cross-appeal, First Baptist argues that the trial court erred in denying its claim that SunTrust breached its fiduciary duty when it paid income from the trust to Covenant Presbytery, as it was not a named beneficiary. Because we reverse the circuit court and hold that Covenant Presbytery is the successor in interest to First Presbyterian under the trust, we dismiss the cross-appeal because this issue is moot. See Butt v. Evans Law Firm, P.A., 351 Ark. 566, 98 S.W.3d 1 (2003).
Reversed on direct appeal; cross-appeal dismisséd; court of appeals’ opinion vacated.
Danielson and Goodson, JJ., dissent.
. Carpenter also executed four codicils to his Last Will and Testament; however, these are unimportant for purposes of this appeal.
. Arkansas Code Annotated §§ 28-73-101 et seq. (Repl. 2012). | [
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KENNETH S. HIXSON, Judge
| í Appellant Brandon Shaffer appeals the termination of his parental rights to his daughter, HS, born in October 2012. The child’s mother, Amanda Flynn, consented to the termination of her parental rights to HS, so she is not a party to this appeal. Appellant contends that neither of the statutory grounds alleged by the Department of Human Services (“DHS”) against him are supported by clear and convincing evidence, such that reversal is mandated. We disagree and affirm.
Termination of' parental rights appeals are reviewed de novo, but our court does not reverse in the absence of clear error. Dinkins v. Ark. Dep’t of Human Serv’s., 344 Ark. 207, 40 S.W.3d 286 (2001); Drake v. Ark. Dep’t of Human Serv’s., 2014 Ark. App. 475, 442 S.W.3d 5. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to'terminate parental rights; these must be proved by clear and hconvincirig evidence. Ark.Code Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce, in the. fact finder a firm, conviction as to the allegation sought,to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v., Ark Dep’t of Human Servs., 329 Ark. 243, 947,S.W.2d 761 (1997); Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1; Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Credibility determinations are left to the trial court. Moiser v. Ark. Dep’t of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006).
The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to. return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Cole v. Ark. Dep’t of Human Servs., 2012 Ark. App. 203, 394 S.W.3d 318; Tucker, supra. A parent’s past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160. Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; Ishowever, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Pine, supra.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark. Dep’t of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Knuckles v. Ark. Dep’t of Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.App. 1, 83 S.W.3d 418 (2002).
In this case, the trial court found that two statutory grounds defined in Arkansas Code Annotated section 9-27-327(b)(3)(B) had been proved to support terminating appellant’s parental rights. Those grounds were (1) the “aggravated circumstances” ground, and (2) the “other factors” ground. It is these findings that are challenged on appeal. Appellant does not contest the “best interest” finding made by the trial judge. If either ground found by the trial court to be supported by clear and convincing evidence is not clearly erroneous, we are compelled to affirm.
The Juvenile Code describes the “other factors” ground as when other factors or issues arise subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the child in the custody of the parent is contrary to the child’s 14health, safety, or welfare, and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances, preventing the return of custody to the parent. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(b). Here, the trial court found that appellant had demonstrated a pattern of instability, refused to address his substance-abuse issues, was uncooperative with DHS, and failed to comply with the case plan and case orders, such that despite the offer of services, he was incapable of, or indifferent to, remedying the subsequent issues. The Juvenile Code describes the “aggravated circumstances” ground as when a parent has subjected the child to abandonment, chronic abuse, extreme or repeated cruelty, sexual abuse, or when a trial judge determines that there is little likelihood that services to the family will result in a successful reunification. See Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(o). Here, the trial court found ‘that there was little likelihood that additional services would result in appellant reunifying with HS.
The evidence showed that there had been a prior finding of inadequate supervision as to HS’s parents in August 2013. Both parents admitted to regular use of methamphetamine, but a case was not opened because DHS could not locate the family. The present case was opened when HS was taken into DHS custody in February 2014, after being summoned by law enforcement to appellant’s residence in Conway. The case was 'open for the next year and a half. The hearing on DHS’s petition to terminate parental rights was conducted in August 2015, and the order on appeal was filed in September 2015.
The primary concern with appellant was a substance-abuse problem, mainly methamphetamine use. Appellant maintained that he did not have a drug problem | sand that he did not need drug treatment. Other concerns were appellant’s sporadic attendance to supervised visitation, his failure to maintain contact with DHS, his failure to attend drug treatment, his pending felony charges, his lack of a valid driver’s license, and his lack of stable housing and employment. Appellant had five positive drug tests for methamphetamine over th'e course of this DHS case. Appellant did have one negative hair-follicle test in the days leading up to the termination hearing. The judge found that appellant’s failure to attend inpatient rehabilitation or NA/AA meetings was a major factor in this case, and given his denial of any drug problem, there were no additional services to provide appellant in order to successfully reunify appellant with his daughter.
Appellant’s argument as to “aggravated circumstances” focuses on his single negative hair-follicle test prior to the - termination hearing, which he says shows three months of sobriety. He adds that the trial court found him in partial compliance over the course of this case, having recently acquired an appropriate home and a job as well as having completed, parenting classes and counseling. His compliance with the case plan in these respects, he argues, shows that it was wrong to conclude that there was little likelihood that further services would result in successful reunification with HS. We disagree.
Appellant was given approximately eighteen months.of DHS intervention and services designed to address his instability and drug addiction. Although appellant tested positive for methamphetamine five times, he continued to deny that he had a drug problem. In spite of his completion of some services, the primary issue remained unresolved. The issue was whether appellant had become a stable, safe parent with the ability to care for his child. Camarillo-Cox, supra. A parent’s past behavior is often a good indicator of future | (¡behavior. Stephens, supra. A child’s need for permanehcy and stability may override a parent’s request for more time to improve the parent’s circumstances. Knuckles v. Ark. Dep’t of Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Loveday v. Ark. Dep’t of Human Servs., 2014 Ark. App. 282, 435 S.W.3d 504. The trial court did not clearly err in finding that there- was little likelihood that further.-services would result in appellant successfully reunifying with the child. Compare McKinley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 475, 471 S.W.3d 209; Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, 434 S.W.3d 371. Because only one statutory ground is required to be proved, we need not discuss the alternative statutory ground relied on by the trial court in ter minating appellant’s parental rights. Loveday, supra.
We affirm.
Virden and Brown, JJ., agree. | [
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Per Curiam.
Appellant Katherine Fryar appeals the January 7, 2005 order of the Pulaski County Circuit Court granting summary judgment and dismissing her case against Appellees Touchstone Physical Therapy, Inc. and Michael Teston, individually. However, in violation of Ark. Sup. Ct. R. 4-2(a)(8), the notice of appeal is not included in the addendum. Pursuant to Ark. Sup. Ct. R. 4-2(b)(3), this court finds that the addendum is insufficient, and the appellant is granted fifteen days from the date of the entry of this order within which to file an amended addendum. Dodson v. State, 357 Ark. 646, 187 S.W.3d 854 (2004). Under Ark. Sup. Ct. R. 4-2(b)(3), this court may affirm the judgment if an amended addendum is not filed within the fifteen days. | [
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Robert L. Brown, Justice.
Appellant Melissa West appeals from the circuit court’s initial order retaining exclusive, continuingjurisdiction over the parties and subject matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Melissa West further appeals the court’s subsequent order continuing joint custody of the children but awarding primary physical custody of the female child, N.W., to herself and awarding primary physical custody of the male child, J.W., to the appellee, James Edward West. Her sole point on appeal is that the circuit court erred in concluding that it had exclusive, continuing subject-matter jurisdiction to determine a modification of a previous Arkansas custody order under the UCCJEA. We affirm the circuit court.
On July 10, 2000, a divorce decree for Melissa West and James Edward West was entered. In that decree, the chancery court ordered that Melissa and James Edward would have joint custody of the two children. It further awarded Melissa West the exclusive right to determine the primary residence of the children and awarded James Edward certain rights of visitation when the two parents resided 300 miles or more from each other.
On June 11, 2003, James Edward filed a motion for change of custody in what is now the circuit court due to the approval of Amendment 80 to the Arkansas Constitution. The motion alleged that since the date of the decree, there had been a material change of circumstances and specifically that (1) Melissa was openly cohabitating with her live-in boyfriend in the presence of the two children; (2) that Melissa had used inappropriate disciplining measures on the children; (3) that Melissa had moved her residence three times within the last three years; (4) that Melissa maintained a dirty and unkept living environment and that the children arrived for visitation in unwashed and dirty clothes; (5) that Melissa’s electrical service had been shut off four or five times since the divorce; and (6) that the children had expressed a strong desire to live with James Edward. James Edward asserted that in addition to these reasons, he had remarried and that he and his wife could offer two steady incomes to pay for the children’s needs. For these reasons, he contended that it was in the best interest of the children for them to be placed in his sole custody.
On July 9, 2003, Melissa moved to dismiss James Edwards’s motion for lack of subject-matter jurisdiction. She stated that the children had resided in the state of Oregon with her since July 2000, and that six months from that date, Oregon became the children’s home state. She further stated that all of the children’s school and medical records were in Oregon. She contended that under the UCCJEA, the circuit court no longer had exclusive, continuing jurisdiction over the children, and for that reason, the court should dismiss the pending motion. She further denied the allegations in the change-of-custody motion.
On July 21, 2003, the circuit court held a hearing on the issue of subject-matter jurisdiction.After hearing the testimony of both Melissa and James- Edward and hearing the arguments of counsel, the circuit court ruled:
I’ve listened to all of the evidence and I, also, read the cases from the other jurisdictions, as well as, those from the State of Arkansas, regarding the UCCJEA, and I’ve had this issue come up a number of times since the enactment of the UCCJEA. In ruling, I am ruling that Arkansas will retain jurisdiction of this case. I do recognize that the home state would be, at this time, considered to be the State of Oregon instead of the State of Arkansas, because the child has resided there for in excess of six months — or children. The children are now eleven and almost fourteen years of age. They have spent a majority of their lifetime in the State of Arkansas and Arkansas had previously entered an order regarding custody. UCCJEA does require the Court to consider whether or not there are significant relationships or contacts or evidence, as I interpret it, with the State of Arkansas. I think that there are more than enough significant contacts, here, still, at the present time, and have been since the mother and the children have moved to the State of Oregon. Up to twenty-five percent — and I think that it’s a question of whether or not there are significant contacts, not the question of whether or not there are more, and I think that’s the issue that has to be considered by the Court. There are significant contacts and relationships and evidence in the State of Arkansas. The child spends somewhere between twenty and twenty-five percent of its time in — children spend twenty to twenty-five percent of their time in the State of Arkansas. The father and his family live here. He’s remarried. The college classes, Karate and other things, and therefore, I am going to retain jurisdiction of this matter at the present time. I’m going to recess until 1:15 and we will have a temporary hearing after lunch, rather than starting it at this time.
On September 2, 2003, a hearing was then held on the merits of the motion to change custody. Following the testimony by the witnesses and the arguments of counsel, the circuit court issued its final order on September 18, 2003. In that order, the circuit court reiterated and reaffirmed its finding of exclusive, continuing jurisdiction pursuant to the UCCJEA. It further found a material and significant change in circumstance and relied on the following facts to support that finding: (1) that Melissa moved to Oregon after the divorce; (2) the desires of both children as stated during the hearing; (3) that James Edward had remarried; and (4) that Melissa had been cohabitating with a man for more than two years. The court concluded that it was in the best interest of the children for Melissa and James Edward to continue sharing joint custody, but the court ordered that Melissa be the primary physical custodian of N.W. and James Edward be the primary physical custodian of J.W., subject to visitation.
Melissa initially contends in this appeal that under the UCCJEA, the children’s home state is now Oregon and that that is the preferred jurisdiction. She asserts that court-ordered visitation and any activities occurring within that time period of visitation, standing alone, cannot be deemed sufficient to sustain a finding of a significant connection to the original-decree state. She maintains that all the children’s school records, medical records, and a substantial extended family exist only in Oregon. She cites to other jurisdictions to support her proposition that Oregon has long been the home state of the children and urges that Oregon is preferred under the UCCJEA and can only be overcome for jurisdiction purposes by a showing and finding of “significant connections” and “substantial evidence.”
Our standard of review in this case is de novo, although we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. See Arkansas Dep’t of Human Servs. v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002).
The UCCJEA is the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings which involve other jurisdictions. See Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003). One of the purposes behind the UCCJEA is to avoid relitigation of child-custody determinations in other states. See Arkansas Dep’t of Human Servs. v. Cox, supra. The specific section of the UCCJEA at issue in the instant case provides in pertinent part:
(a) Except as otherwise provided in § 9-19-204, a court of this state which has made a child-custody determination consistent with § 9-19-201 or § 9-19-203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substan tial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
Ark. Code Ann. § 9-19-202(a) (Repl. 2002).
In the instant case, the divorce decree indicates that the Arkansas trial court entered the parties’ initial divorce decree and award of custody. Thus, the Arkansas court had exclusive, continuing] urisdiction over the child-custody determination until the court made either of the two determinations set forth in § 9-19-202(a).
In support of her argument that the circuit court does not have exclusive, continuing subject-matter jurisdiction, Melissa relies on four cases: In Re: C.C.B. & M.J.B., No. 08-01-00353-CV (Tex. Ct. App. Dec. 5, 2002); In Re: M.B. II, 756 N.Y.S.2d 710 (N.Y. Fam. Ct. 2002); In Re: Marriage of Medill, 179 Or. App. 630, 40 P.3d 1087 (2002); and In Re: Bellamy, 67 S.W.3d 482 (Tex. Ct. App. 2002). While each case cited deals with the UCCJEA, each one is distinguishable on the facts, and none is persuasive.
The case of In Re: C.C.B. & M.J.B., supra, is an unpublished opinion from the Texas Court of Appeals, which has no precedential value. Moreover, there is no discussion in that case of any continuing contacts of the children with the State of Texas, which was the original jurisdiction for the divorce. Thus, the case is inapposite.
In In Re: M.B. II, supra, the Family Court of Nassau County, New York, granted a father’s motion to dismiss the mother’s petition for modification of custody. In that case, the couple received a divorce from the New York court, and the father moved to New Jersey with the child. The mother moved to modify the parties’ agreement as to custody, and the court found that the child and his father had resided in New Jersey continually for three years, that the child attended school there, and that the child had his friends there. While the mother claimed that the child had attended a family member’s communion service in New York seven months prior, that the child had various family members in the Nassau County area, that the father “maintained” a former marital residence there, and that it would be a burden on her for Newjersey to hear the matter, the court observed that the contacts alleged by the mother between the child and New York were “de minimis at best and virtually non-existent at worst.” 756 N.Y.S.2d at 194. The court then found that the child and one parent had no significant connection with New York and that substantial evidence was no longer available there. Accordingly, it declined jurisdiction of the matter. The facts supporting a significant connection with Arkansas in the instant case are categorically different.
In In Re: Marriage of Medill, supra, the father appealed from the trial court’s dismissal of his motion to modify child custody. At the time of the parents’ divorce, the parties agreed that the father would file the dissolution action in Oregon. An Oregon court issued the dissolution with the mother’s consent, which included a parenting plan. The mother and the children remained in Germany, where they had moved prior to the divorce. In 1999, the father filed the instant motion in the Oregon trial court, which the trial court dismissed, on the basis that Oregon was not and never had been the children’s home state for purposes of either the Uniform Child Custody Jurisdiction Act (UCCJA) or the UCCJEA and the children had no significant connection with Oregon. Those facts are not analogous to the case at hand.
Finally, Melissa attempts to distinguish In Re: Bellamy, supra, a Texas Court of Appeals case. There, the court examined the mother’s claim that the Texas court lacked subject-matter jurisdiction over the custody matter, because she and the child resided in Louisiana. The court of appeals disagreed and noted that under Texas law, which had adopted the UCCJEA, Texas retained jurisdiction if a parent remained in Texas, regardless of the child’s home state, so long as there was still a significant connection with Texas and substantial evidence was still available in Texas. The court held that the trial court properly exercised jurisdiction, as the child’s father remained in Texas and the children maintained a significant connection with that state.
A case that is apposite to the instant case is In Re: Forlenza, 140 S.W.3d 373 (Tex. 2004). In that case, the Texas Supreme Court examined whether in the modification-of-custody suit before it, the children maintained a significant connection with Texas so that the initial trial court retained jurisdiction of the matter under the UCCJEA. The court observed that the parties divorced in Texas in 1996, and in 1997, the trial court signed a modification order regarding custody. The children then moved with their father to Washington and, subsequently, to three other states. The mother filed a motion to modify the custody agreement, and the father moved to dismiss alleging that the trial court did not have exclusive, continuing jurisdiction to modify the previous child-custody order. The trial court denied the motion, and the Texas Court of Appeals ordered the trial court to vacate its previous order and to dismiss the case. The supreme court granted the mother’s petition to determine whether the trial court retained exclusive, continuing jurisdiction under the UCCJEA. The father’s primary argument was that the children no longer had a significant connection with Texas because the children had only visited Texas five times in the four-year period preceding the action and because the mother’s residence in Texas was not sufficient.
The Texas Supreme Court disagreed with the father and noted that the record reflected that the children had visited Texas six times in the relevant period. On four of those visits, they lived with their mother for approximately one month during the summer and would have visited the state more but for the father’s actions and the fact that the children were not allowed to fly to Texas. The court further pointed to the fact that numerous relatives lived in Texas and maintained a relationship with the children, including their maternal grandmother and their mother’s sister, and their father’s sister and sister-in-law. In addition, the court said that the evidence clearly indicated that the mother maintained a significant relationship with her children and that to accommodate the children’s schedules, she flew to their various states of residence to see them at least on fifteen occasions in the four-year period. The court concluded that because “the record establishes that the children visited Texas on a number of occasions and maintained a close relationship with their mother and other relatives residing in Texas, all important considerations under the UCCJEA, we hold that the children have a significant connection with Texas sufficient to support the trial court’s exclusive continuing jurisdiction over the modification proceedings.” 140 S.W.3d at 377.
The same analysis applies to the instant case. We turn first to whether the children have a significant connection to Arkansas. The testimony presented to the circuit court at the hearing on Melissa’s motion reveals that since the parties’ divorce, the children had spent three summer breaks, one spring break, and three Christmas breaks with James Edward in Arkansas. The summer-break visits lasted for ten weeks. Looking at all visits, the children spend a minimum of twelve weeks each year in this state. In addition to their father, the children’s maternal grandmother resides in Arkansas, as do their stepmother, stepbrother, and step-grandparents. Because the children’s father continues to reside in the state, and the children do spend at least twenty percent of their time in the state, and multiple relatives reside here, we cannot say that the children do not have a significant connection with the state which would require the circuit court to relinquish jurisdiction. Such a finding is sufficient to affirm the circuit court’s decision under In Re: Forlenza, supra, and Ark. Code Ann. § 9-19-202(a), in that it appears a circuit court must find both that a significant connection and substantial evidence do not exist in order to lose jurisdiction. Because we hold that a sufficient connection between the children and this state does exist, we need not address the issue of substantial evidence regarding the children’s care.
While Melissa argues that findings in relation to § 9-19-202(a)(l) should not be sufficient when based solely upon court-ordered visitation, her argument is meritless. First and foremost, Melissa fails to cite to any authority from this court or any other court for the proposition that court-ordered visitation to the state at issue should not be considered when determining whether a significant connection exists. This court does not consider arguments made without citation to authority or convincing argument. See, e.g., Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). Furthermore, the language used in § 9-19-202(a)(l) is clear and does not in any way prohibit the consideration of evidence based upon court-ordered visitation.
Affirmed.
Gunter, J., not participating.
The divorce decree and motion for change of custody are included in Melissa’s revised Addendum but are not in the record. Appellee James Edward West makes no objection to this. We treat this as an agreement regarding the decree and motion and as an abbreviated record under Arkansas Rule of Appellate Procedure - Civil 6(c) (2005).
This case was later disapproved by In Re: Forlenza, 140 S.W.3d 373 (Tex. 2004), which is discussed later in this opinion.
The Texas statute at issue, which adopts the UCCJEA, is similar to § 9-19-202(a) of our Code. | [
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Jim Hannah, Chief Justice.
The City of Fort Smith appeals the Crawford County Circuit Court’s award of attorney’s fees pursuant to Ark. Code Ann. § 18-15-605(b) (Repl. 2003) to landowners Lee and Patricia Hackler in an eminent-domain action. This is a companion case to City of Fort Smith v. Carter, 364 Ark. 100, 216 S.W.3d 594 (2005), which is also handed down today. In the Carter case, the circuit court denied the landowners’ request for attorney’s fees pursuant to § 18-15-605(b). The landowners cross-appealed, and we reversed and remanded, ordering the circuit court to determine the amount of attorney’s fees due the landowners pursuant to § 18-15-605(b).
The arguments offered by the City in the instant case are the same arguments we rejected in the Carter case. Accordingly, we deem it unnecessary to reiterate in the instant case what has been stated in the companion case bearing upon these arguments. Based upon our reasoning set forth in City of Fort Smith v. Carter, we hold that the circuit court did not err in awarding attorney’s fees pursuant to Ark. Code Ann. § 18-15-605 (b).
Affirmed. | [
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Donald L. Corbin, Justice.
This case presents issues of construction of commercial leases and comes to this court after review by the Arkansas Court of Appeals. In this case, there are two sets of Appellants. The first set, known as “Tucker,” are the heirs of Mildred Tucker Porter and Irma Tucker Engle, and are the distributees of the Tucker Company. The second Appellant, known as “Moore,” is Marvin D. Thaxton, who is the trustee under the last will and testament of Cora A. Moore, deceased. Appellees are Regions Bank, successor to the original lessee; KARK-TV, Inc.; Combined Communications Corp.; and Gannett Company, Inc. (collectively known as “the Bank”). The Pulaski County Circuit Court granted the Bank’s motion for partial summary judgment and also ruled that the properties in this case are subject to an implied easement. Tucker and Moore appealed to the Arkansas Court of Appeals, which affirmed on the grounds that three points of appeal were procedurally barred, and that the trial court did not err in finding that the “good condition” clause of the leases did not require the Bank to return separate buildings. See Coleman v. Regions Bank, CA04-401, (Ark. App. March 2, 2005). Tucker and Moore filed a petition for review of that decision, pursuant to Ark. Sup. Ct. R. 2-4(c)(iii), alleging that the issue of whether the “good condition” clause in a ground lease of property applies to the configuration of the building when returned to the lessor is an issue of first impression in this state. We granted the petition. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005); Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005). We find no error and affirm.
The pertinent facts and procedural history of this case were throughly laid out by the court of appeals:
In August 1952, [the Bank] executed two leases — one with the Tucker predecessors and the other with Moore — for the lease of the two parcels. Each lease permitted the Bank to construct its banking facilities on the parcels. Further, each lease allowed the Bank to make such alterations in and to the building as the Bank deemed necessary, provided that such alterations were not injurious to the leased premises. Finally, each lease required the Bank, upon termination, to deliver the building, except for bank fixtures, equipment, and bank vaults, in good condition, reasonable wear and tear excepted. Each lease, as extended, expired on July 31, 2002.
In 1953-54, in accordance with the leases, the Bank constructed its then-new banking headquarters consisting of a two-story structure on the Moore property that housed the Bank’s lobby and offices and a two-story structure on the Tucker property that housed a drive-through banking facility on part of the ground floor and additional office space on the second floor. The Bank’s architects prepared the design for the building, and Tucker and Moore approved the plans.... As a result of the 1953-54 construction, the structures were integrated, having common electrical, FIVAC, and plumbing systems and sharing common elevators, restrooms, and stairwells.
Fn 1966-67, the Bank desired to expand its banking headquarters and acquired additional leasehold interests to the west of the Tucker and Moore properties____In 1967, the Bank expanded its banking facilities to cover all of the Tucker and Moore parcels (the East Building). The drive-in banking facility was relocated to the ground floor under the western . . . side. There is no evidence regarding whether the Bank sought approval of its plans.
The Bank also constructed a tliree-story structure on the [western side] (the West Annex) and connected it to the East Building through a two-story structure (the Overpass) that traversed the alleyway between the East Building and the West Annex. As a result of the 1967 construction, the separation of the structural frame along the property line was maintained ... and the banking facility continued to have integrated building services, having common electrical, HVAC, and plumbing systems and sharing common elevators, restrooms, and stairwells. This project is referred to as the 1967 expansion/modifications____
Appellee KARK’s involvement began in 1975, when the Bank moved into its current headquarters... and entered into a transaction with KARK whereby the Bank conveyed ownership of the banking facilities to KARK (subject to the interests of the landowners) and subleased the Tucker, Moore and [West Annex] ground leases to KARK, who remained on the premises until the sublease expired on June 30, 2002. The Tucker and Moore ground leases expired on July 31, 2002, and on that date Tucker and Moore became owners of the East building. Prior to the expiration of the leases, Moore and Tucker made demands on the Bank to remove the Overpass and to restore the buildings to good condition, including removing any environmental contamination.
The Bank filed a petition for declaratory judgment against Tucker, Moore, and KARK, seeking a declaration that it had complied with the terms of the leases and that the Bank,Tucker, and Moore be determined to have mutual use of the equipment, utilities, and services located in all of the buildings____Moore and Tucker answered and counterclaimed, asserting the right to separate, independent buildings and denying the Bank’s easement claims. The counterclaim alleged, inter alia, that the Bank and its subtenant, KARK, breached the “good condition” and the “injurious to the leased premises” clauses of the leases, were negligent, and committed waste by constructing a building that effectively merged the Moore and Tucker properties and then failing to restore separate buildings at the expiration of the leases. The Bank’s third amended petition sought judgment over against KARK on the independence claims. The trial court bifurcated the claims concerning the separation of the buildings from the claims that the Bank failed to return the buildings in “good condition” or pay for certain necessary repairs. Both sets of claims involve the “good condition” clauses.
Tucker and Moore moved for partial summary judgment on their claims for separate, independent buildings. The Bank re sponded by filing a motion for summary judgment, alleging that any breach of contract or “waste” claims that Moore and Tucker may assert for separate, independent buildings are barred by the statute of limitations. KARK filed a motion for summary judgment, asserting that it did not agree to assume any of the Bank’s obligations on the independence claims and is not otherwise Hable to the Bank on those claims. [Footnote omitted.]
In its first order, the circuit court denied Tucker and Moore’s motion for partial summary judgment on liability of the Bank to return separate buildings or to place existing buildings in good condition. Additionally, the court granted the Bank’s motion for partial summary judgment on the ground that the statute of limitations barred Tucker and Moore’s action. The court also dismissed with prejudice Tucker and Moore’s counterclaim against the Bank and dismissed with prejudice the Bank’s claims against KARK dealing with the independence claims. Lastly, the court found that the Bank’s initial petition for imposition of an implied easement was still pending and encouraged the parties to resolve the issues amongst themselves, while still allowing for the parties to return to court should they be unable to do so. The parties were unable to reach a conclusion on the easement issue themselves, and, in a supplemental order, the court found that an implied easement exists that allows all three owners to continue use of the common building features. This order also contained a certification of appealability of the independence claims, pursuant to Ark. R. Civ. P. 54(b).
For reversal, Tucker and Moore argue that the trial court erred in finding that (1) the ground leases did not require separate buildings; (2) the “alterations” clause of the ground leases was not violated by the 1967 expansion and modification; (3) the “good condition” clause was not breached at the termination of the lease due to the configuration of the buildings; and (4) an implied easement exists allowing all landowners to continue to use the common building features in the same manner as before.
I. Separate Buildings
Tucker and Moore argue that the trial court erred in finding that the ground leases between them and the Bank did not require the Bank to provide separate buildings to Tucker and Moore at the termination of the leases. In making this determination, the trial court relied on two, distinct reasonings. First, that the ground leases do not provide a basis of liability because the court did not agree that the lease terms should be interpreted to require construction of separate buildings at the end of the lease. Second, the trial court found that their claim was barred by the statute of limitations.
On appeal, Tucker and Moore initially only address one of the two grounds given by the circuit court in reaching its decision. It is not until their reply brief that they address the statute-oflimitati'ons ground. Because they do not challenge the trial court’s alternate ruling on the statute of limitations until their reply brief, this argument cannot be reached. This court has held that where the trial court based its decision on two independent grounds and appellant challenges only one on appeal, the appellate court will affirm without addressing either. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Furthermore, it is well settled that this court will not address arguments raised for the first time in the appellants’ reply brief, because the appellee is not given a chance to rebut the argument. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003); Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). Consequently, Tucker and Moore’s first argument cannot be examined because they did not challenge both independent grounds that the court relied on in making its decision until their reply brief. We thus summarily affirm on this point.
II. “Alterations” Clause
Tucker and Moore next argue that the trial court erred in finding that the “alterations” clause was not violated by the Bank’s 1967 expansion and modification. As with the previous point, the trial court denied relief to Tucker and Moore on alternative grounds, rejecting the claim on its merits and also finding that the claim was barred by the statute of limitations.
On appeal, Tucker and Moore initially addressed only the first of the two grounds given by the trial court in reaching its decision. It is not until their reply brief that they address the finding under the statute of limitations. Accordingly, as set out above, we cannot reach the merits of this point of appeal and we thus summarily affirm the trial court’s ruling.
III. “Good Condition” Clause
For their third point on appeal, Tucker and Moore argue that the trial court erred in finding that the “good condition” clauses were not breached by the Bank’s failure to return separate, individual buildings at the expiration of the leases. They argue that the Bank failed to comply with the “good condition” requirement of the leases, not only because of the alleged shabby condition of the buildings’ interiors, but also because of the interlinking configuration of the buildings and equipment and the inability of a single owner to exercise the normal incidents of ownership on or over its respective property. Specifically, they claim that “good condition” clauses commonly found in leases, such as the two present here, apply to alterations to the configuration of the building performed by the tenant during the lease. This argument is without merit.
The interpretation of the “good condition” clauses is a matter of contract construction presenting questions of law for the court to decide. Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. See First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992); Valmac Indus., Inc. v. Chauffeurs, Teamsters & Helpers Local Union No. 878, 261 Ark. 253, 547 S.W.2d 80 (1977). In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. Missouri Pac. R.R. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557 (1941). It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. First Nat’l Bank of Crossett, 310 Ark. 164, 832 S.W.2d 816.
In the present case, there is no ambiguity as to what the “good condition” clause of each lease said. Both leases are almost identical in their make-up and convey the same notion of a return of the premises in “good condition.” The Tucker lease provided:
12. The Lessee agrees, during the term of this lease, at its own expense, to keep in good order and repair the inside and outside of the building or buildings on the leased premises and the sidewalks and passageways adjacent thereto. Upon the termination of this lease, the building or buildings and improvements shall be delivered to the Lessors in good condition, reasonable wear and tear during the term of this lease excepted. The buildings and permanent improvements erected and made upon the leased premises by the Lessee, other than bank fixtures, equipment and bank vaults, shall be and remain the property of the Lessors at the termination of this lease; provided, however, upon said termination the Lessee shall have a reasonable time thereafter within which to remove its bank fixtures, equipment, vaults, heating units, air conditioning plants and other personal property from the premises, even though the same may be attached thereto. [Emphasis added.]
Similarly, the Moore lease provided:
9. The Lessee agrees, during the term of this lease, at its own expense, to keep in good order and repair the inside and outside of the building on the leased premises and the sidewalks and passageways adjacent thereto. Upon the termination of this lease the building shall be delivered to the Lessor in good condition, reasonable wear and tear during the term of this lease excepted. The building and permanent improvements built upon the leased premises by the Lessee, other than bank fixtures, equipment and bank vaults, shall become the property of the Lessor and shall remain the property of said Lessor at the termination of this lease; provided, however, upon the termination of this lease the Lessee shall have a reasonable time thereafter within which to remove its personal property, bank fixtures, equipment, bank vaults, et cetera, from the premises, the rent to continue during such time. [Emphasis added.]
There is no ambiguity as to the plain meaning of both these clauses: Tucker and Moore expected to have their property returned in good condition at the termination of the lease and anticipated to retain all permanent improvements to said property. Both leases also contained alterations clauses and budding descriptions, which are relevant in the analysis and applicability of the “good condition” clauses to this unique situation.
While this case is initially one of contract construction, it is necessary to closely examine the “good condition” clauses in light of Tucker and Moore’s attempt to force reconfiguration and the removal of permanent improvements on the buildings. While there is no Arkansas law that deals specifically with the issue of “good condition” clauses and the removal of permanent improvements, several other jurisdictions have broached the subject. Those cases provide insight into the proper interpretation of the “good condition” clauses here.
In Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 881, 275 S.E.2d 817, 819 (1981), the court examined a “good condition” clause and explained that:
The provision for returning the premises in as good condition as received, ordinary wear and tear excepted, was a rule of common law and is usually understood to mean no more or less when inserted in contemporary contracts. It includes that usual deterioration which results from the day to day use of the premises and from lapse of time.
This conclusion is in line with an earlier New York Supreme Court decision finding that “a covenant by a lessee to make ‘all inside and outside repairs’ imports only a general covenant to make ordinary, and not extraordinary, repairs.” Street v. Central Brewing Co., 101 A.D. 3, 5, 91 N.Y.S. 547, 549 (1905) (quoting May v. Gillis, 169 N.Y. 330, 333, 62 N.E. 385, 386 (1901)). Thus, it is clear from these courts’ holdings that the “good condition” clause is to be construed not to require extraordinary steps by the lessee to maintain good condition, but rather those steps reasonably taken to maintain the premises in good condition.
Nevertheless, this explanation of the “good condition” clause is only a stepping stone in our analysis of whether the “good condition” clauses here were breached by the Bank’s refusal to change the improvements it had made and to reconfigure the buildings. In the present instance, we have a situation whereby the lessors are claiming that the respective leases called for the Bank to separate the buildings and put them in a good, leaseable condition.
It is black letter law that “[t]he lessee is not required to remove improvements made by him with the consent of the landlord or under authority of the lease unless the lease so provides[.]” 52A C.J.S. Landlord & Tenant § 884 (2005) (footnote omitted). This principle is supported by multiple jurisdictions who have relied on this reasoning in regards to their analysis of removal under “good condition” clauses. See Lamonica v. Bosenberg, 73 N.M. 452, 389 P.2d 216 (1964) (holding that when alterations were made with the landlord’s knowledge and implied consent, the tenant has no implied obligation to restore the leased premises at the end of the term to its prior condition); Savage v. University State Bank of Champaign, 263 Ill. App. 457 (1931) (holding that the lessee is not required to remove a bank vault that was installed with the consent of the landlord or under the authority of the lease, in the absence of an express requirement to do so); Arkansas Fuel Oil Co. v. Connellee, 39 S.W.2d 99 (Tex. App. 1931) (explaining that a lessee is not required to remove improvements made by him with the consent of the landlord, even if he had the right and option to do so in the contract). See also Cawley v. Jean, 218 Mass. 263, 105 N.E. 1007 (1914); Perry v. J.L. Mott Iron Works Co., 207 Mass. 501, 93 N.E. 798 (1911); Marks v. Chapman, 135 Iowa 320, 112 N.W. 817 (1907). Consequently, removal of permanent improvements is not required if the lessor acquiesced or approved the improvements or alterations. This conclusion is further supported by other jurisdictions.
In Leslie Pontiac, Inc. v. Novak, 202 N.W.2d 114, 115 (1972), the Iowa Supreme Court was faced with the task of interpreting a clause that required the tenant, at lease expiration, to “ ‘quit and surrender the demised premises without notice in a good and substantial state of repair, reasonable wear and tear. .. excepted.’ ” Furthermore, the “Landlord expressly waived ‘any right to claim any signs, equipment, and/or fixtures affixed to the realty as real property’ and recognized tenant’s right to remove them at the lease’s end provided that the premises were ‘repaired and restored’ to their original condition.” Id. There, as in this case, the tenant made alterations and improvements to existing buildings with the landlord’s consent. The tenant did not pursue his option to remove the alterations and fixtures. The court found that because the lease gave the lessee the right to make alterations and improvements and there was only an option to remove at the lease expiration, there was no requirement that the buildings be restored to their original condition unless he exercised his removal option. Specifically, the court held:
Where alterations were made and removed, tenant’s only obligation was to surrender the premises in a good and substantial state of repair, subject to the exceptions stated in the lease. Where, as here, a lease carries with it the right to adapt the premises to their intended use, the lessee is under no obligation to restore them to original condition at lease expiration unless the alterations are removed.
Id. at 116 (emphasis added).
Similarly, in Ten-Six Olive, Inc. v. Curby, 208 F.2d 117 (1953), the Eighth Circuit was faced with the issue of whether a lessee should be required to remove partition walls it erected on the leased premises. There, the lease contained both an alterations clause and a “good condition” clause similar to those in the Tucker and Moore leases. The court found that the evidence demonstrated that the lessor maintained offices adjacent to the leased property, watched the changes being made to the property, and never objected to these changes. Based upon this finding, the court reasoned that the failure to object constituted a waiver of the consent provision in regards to alterations. Furthermore, the court held that “the ‘good condition’ clause provided that the premises should be surrendered in as good condition as received, ordinary wear and tear excepted. It did not provide they should be returned in the same condition, or like condition.” Id. at 122. Consequently, the court held that the walls did not have to be removed at the termination of the lease because they had become permanent improvements on the premises.
The most pertinent analysis to the present situation can be found in McKenzie v. The Western Greenbrier Bank, 146 W. Va. 971, 124 S.E.2d 234 (1962). There, the West Virginia Supreme Court examined the question of whether a vault was a permanent fixture and thus part of the realty, or whether removal was required in order to comply with the “good condition” clause of the lease. Specifically, the court phrased the issue as whether the lessor has “the right to require the lessee to remove the fixture.” Id. at 976, 124 S.E.2d at 237. The lease provided the lessee the right to make alterations, additions, and improvements, required the lessee to return the premises in good condition at the end of the lease, and gave the lessee the option to remove the vault equipment at the end of the lease. The court found that the lessor could not force the removal of the vault because the conditions and provisions of the lease did not allow for any other conclusion. In reaching this determination, the court explained that a lessee is not required to remove improvements made within his authority under the lease or made with the consent of the lessor:
All of the conditions and provisions in the lease, both as to the removal of permanent fixtures or improvements and the repairs to the building must be read together, and should if possible be interpreted together, in order to give meaning to each and reasonable meaning to all of the language used.
Id. at 977, 124 S.E.2d at 238. The court then held that:
[A] covenant to keep the demised premises in good repair, and surrender the same in as good condition as reasonable use thereof will permit, does not obligate the tenant to restore the premises to the condition in which they were at the time of the lease, where the necessity of restoration is due to alterations which the tenant made under the authority of the lease.
Id. at 981, 124 S.E.2d at 239.
The weight of authority in this country regarding “good condition” clauses and the removal ofpermanent improvements is such that a lessee is not required to remove improvements made with the consent of the lessor or under the authority of the contract. The lessee is merely required to make ordinary repairs in order to return the premises in “good condition.”
In applying this analysis to the present case, it is clear that the Bank did not breach the “good condition” clause of the Tucker and Moore leases. First and foremost, all alterations and improvements made to the properties were done with the consent of Tucker and Moore. In addition to actual, physical approval, the improvements were made pursuant to the individual leases. The Moore lease provided:
8. Lessee shall further have the right, at its own expense, from time to time, to make such alterations and modifications in and to the building to be erected by it on the leased premises, as may be deemed necessary and advisable by Lessee; provided, however, that such alterations or modifications shall not be of such type and nature as to be injurious to the leased premises.
This “alterations” clause allowed the Bank to make alterations and improvements to the building that it deemed necessary. Additionally, the Tucker lease contained a similar “alterations” clause:
8. Lessee shall have the right, at its own expense, from time to time, to make such alterations and modifications in and to the building or buildings on the leased premises as may be deemed necessary and advisable by Lessee; provided, however, that such alterations or modifications shall not be of such type and nature as to be injurious to the leased premises.
These provisions thus allowed the Bank to proceed and improve upon the buildings upon the leased premises.
Second, Tucker and Moore’s argument that the lease contemplated separate buildings is without merit because they ap proved, either directly or implicitly by their actions, all plans and renovations to the buildings. As stated above, when improvements are made with the landlord’s consent the tenant is under no duty to remove or reconfigure the buildings to their prior state.
Third, there is no doubt that the only provision that allowed or discussed removal at the end of the lease term referred to bank fixtures, vaults, and bank equipment. This is not the same as the permanent improvements. Moreover, the leases specifically referred to permanent improvements as becoming property of the lessor at the termination of the lease. Consequently, the Bank was under no duty to return separate buildings to Tucker and Moore.
Finally, Tucker and Moore maintain that this court’s decision in Sparkman v. Etter, 249 Ark. 93, 458 S.W.2d 129 (1970), is applicable to the present situation. Specifically, they assert that Sparkman recognizes that connected buildings returned to separate owners at the end of the lease are not in good condition as contemplated by the “good condition” clause of leases. This is a misinterpretation of this court’s holding in that case. While there are some similarities between the facts of Sparkman and the present case, those similarities end at a very vital point. Sparkman had entered into two, separate lease agreements with Merchants National Bank and Rose Pappenheimer. As part of the leases, he was allowed to remove a common party wall between the two buildings as long as it was in accordance with architectural plans and specifications approved by both lessors. Furthermore, the Pappenheimer lease contained a “good condition” clause and an “alterations” clause that allowed for changes to the premises with the written approval and consent of the landlord. The lease further stated that “[a]ny such alteration and changes which shall remain on the demised premises at the end of the term of this lease, or any extension thereof, shall be considered as improvements and become part of the real estate.” Id. at 94, 458 S.W.2d at 130. The other lease explicitly allowed the lessee to remodel, make improvements to the building, and cut an opening in the party wall between the two buildings. The lease contained another significant requirement: “At the end of the term of this lease, the Lessees at their own expense and risk shall restore said opening or openings in said party wall in a good and workmanlike manner[.]” Id. at 95, 458 S.W.2d at 130. It is this specific requirement that this court relied on in finding that Sparkman was required to return within a reasonable time to fulfill the requirements of the lease and replace the party wall. No similar requirement is contained in the leases at hand.
In the present case, there simply was no agreement or provision within either lease for the Bank to restore any portion of the building or remove any improvements. Rather, both “good condition” clauses specifically pointed out that permanent improvements to the premises would become part of the building and revert back to the ownership of the lessor at the end of the lease. Consequently, Sparkman is inapplicable to the present case because of the specific requirements set forth in those leases. Furthermore, the conclusion in Sparkman is in line with the reasoning that improvements made with the lessor’s consent do not have to be removed, absent explicit provisions within the lease. We thus affirm the trial court’s finding that the “good condition” clauses in this case were not breached.
IV Implied Easement
For their final point on appeal, Tucker and Moore argue that the trial court erred in finding that the parties have an irrevocable license, an easement by estoppel, and a prescriptive easement upon the properties of each other. In reaching its determination that an easement existed, the trial court found that an implied easement exists to allow all three owners to continue to use the common building features in the same manner in which such common features were used when the building was owned by a single entity prior to the expiration of the ground leases. Consequently, the trial court’s decision to grant this right of way was based upon the theory of an implied easement.
Nevertheless, Tucker and Moore focus on the grant of an easement to the Bank under three separate theories — irrevocable license, easement by estoppel, and prescriptive easement —• none of which were addressed by the trial court. Furthermore, they did not address the theory of implied easements until their reply brief. As stated previously, it is well settled that this court will not address arguments raised for the first time in the appellants’ reply brief, because the appellee is not given a chance to rebut the argument. See Owens, 354 Ark. 644, 128 S.W.3d 445; Maddox, 346 Ark. 209, 56 S.W.3d 375. Consequently, we summarily affirm the trial court’s ruling on this point.
Circuit court affirmed; court of appeals affirmed.
Glaze, J., not participating.
The Tucker Appellants are: Timothy Tucker Coleman, Leslie Eagle Coleman, Candice Coleman Heyward, Ren Tucker, Lauren Tucker, Jack R. Tucker Jr.,Victor Halter, Vernon Tucker Jr., Mary Ann Garner Frizone, Cherron Garner Munson, Gayle Garner Roski, Tucker Garner, and Patricia Tucker Bell.
These claims are referred to as the independence claims.
The Tucker lease also gave the lessee the option of removing additional equipment or fixtures. | [
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Donald L. Corbin, Justice.
Appellant Charles Lawrence appeals the order of the Miller County Circuit Court affirming the Texarkana, Arkansas Civil Service Commission’s decision to terminate Appellant’s employment with the Texarkana, Arkansas Fire Department. On appeal, Appellant argues that: (1) he was terminated under rules not validly adopted; and (2) he was not terminated in conformity with state law. This case was certified to us from the Arkansas Court of Appeals, as involving a significant issue requiring clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(5).
Appellant was a twelve-year veteran of the fire department and had achieved the rank of Engineer. On November 1, 2003, Appellant was approached by Jerry Reeves, a Nevada County Reserve Sheriff s Deputy, after he received a report that Appellant and his family had been involved in a family dispute at a local store. Reeves first spoke with Mrs. Lawrence, who was upset and attempting to calm her children. He then approached Appellant, who was sitting in his truck, across the street from where his wife and children were. According to Reeves, he informed Appellant that he wanted to talk to him about the family-disturbance report that he had received. Then, while Reeves was in the process of checking Appellant’s license, Appellant hurriedly left the scene. Reeves turned on his blue lights and pursued Appellant down a nearby county road, at times, reaching speeds of over 100 miles per hour. Appellant then pulled off the road and fled down a pipeline right of way, and Reeves was unable to continue his pursuit. Later, an officer with the Arkansas Game and Fish Commission located Appellant’s vehicle, but he was not in it. Reeves again came into contact with Appellant after he was subsequently arrested by the Game and Fish officer.
Two days after his arrest, Appellant was scheduled to work a shift at the fire department. He contacted another firefighter and arranged to switch shifts. Appellant later met with Bobby Honea, Fire Chief for Texarkana, Arkansas. Chief Honea, who had been informed of the fleeing incident, inquired of Appellant as to what had transpired. Appellant declined to explain the situation, stating that it was a personal matter. On November 7, 2003, Chief Honea sent Appellant a letter, terminating his employment with the fire department. In that letter, Chief Honea pointed to the fact that Appellant had failed to show for his scheduled shift on November 3 and that he had been arrested for fleeing in Nevada County.
Appellant appealed his termination to the Commission, and a hearing was held on December 15, 2003. Following the presentation of testimony, the Commission unanimously voted to affirm Appellant’s termination. The Commission’s decision was announced orally by the Commission’s chairman.
Appellant then appealed the Commission’s decision to the Miller County Circuit Court. After conducting a de novo review, the circuit court issued a letter opinion affirming the decision of the Commission. Therein, the court rejected Appellant’s contention that he had been terminated under regulations not validly adopted by the governing body of the City of Texarkana. Additionally, while the trial court found that there was no basis to terminate Appellant because he switched shifts with another firefighter, the court found that Appellant’s conduct of fleeing and his subsequent arrest was a violation of fire department rules and regulations and, thus, warranted termination. This appeal followed.
Before addressing the merits of Appellant’s arguments, it is necessary for this court to determine whether there was a final, appealable order by the Commission that vested jurisdiction of this matter in the trial court. Although this issue is not raised by any of the parties, the issue of whether a final judgment, decree, or order exists is a jurisdictional one, and this court has a duty to determine whether our jurisdiction is proper. Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993); Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988); Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988).
The record reflects that the chairman of-the Commission orally announced the Commission’s decision to affirm Appellant’s termination at the conclusion of the December 15th hearing. After receiving notice that Appellant was appealing the Commission’s decision to the circuit court, the Commission’s chairman submitted an “Affidavit of Record” stating that the record consisted of the transcript of the hearing held on December 15. No written order memorializing the Commission’s decision was ever entered.
In McGann v. Pine Bluff Police Dep’t, 334 Ark. 352, 974 S.W.2d 462 (1998), this court declined to reach the merits of the appellant’s arguments on appeal because the decision of the Pine Bluff Civil Service Commission was not a final, appealable order. This court explained:
Under § 14-51-308(e)(l)(A), McGann had a right to appeal any decision of the Commission to the circuit court, but like in every case of adjudication by an agency or commission, there still must be a final order. The final decision or order must be in writing or stated in the record, and that final decision must include findings of fact and conclusions of law. See Ark. Code Ann. §§ 25-15210(b)(1) and (2) (Repl. 1996); Sykes, Printing Adm’r v. General Publishing Co., 264 Ark. 1, 568 S.W.2d 33 (1978); Earp v. Benton Fire Dep’t, 52 Ark. App. 66, 914 S.W.2d 781 (1996); see also Ark. Code Ann. §§ 14-51-308(e)(l)(B)(ii) and 14-51-308(e)(2)(A), (B), and (f).
Id. at 355, 974 S.W.2d at 463. In McGann, the Commission’s order was not final because it left several issues unresolved.
Here, there is simply no written order, nor are there any findings of fact or conclusions of law. Arkansas Code Annotated § 14-51-308(e)(l)(B)(ii) (Repl. 1998) provides in relevant part that once the commission receives notice of an appeal, it will prepare a written order containing its decision. As previously stated, no such written order was ever entered. It also appears that the Commission failed to make any findings of fact or conclusions of law with regard to Appellant’s contentions that the fire department’s procedures were not validly adopted or that his termination was justified because of his switching shifts or fleeing officers and being arrested. Because of these procedural deficiencies, the trial court lacked jurisdiction to entertain Appellant’s appeal. When the trial court lacks jurisdiction, the appellate court also lacks jurisdiction. See Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000).
Accordingly, this matter is reversed and remanded to the trial court so that it may dismiss Appellant’s appeal without prejudice. Appellant may then refile his appeal with the circuit court after the Commission enters a written order.
Reversed and remanded. | [
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Jim Gunter, Justice.
This is an action by the appellant, Todd Templeton, to recover on his claims for outrage and deceit from the appellees: United Parcel Service (“UPS”), James Beavers, and Mark Hagge. The Washington County Circuit Court entered an order granting the appellees’ motion for summary judgment on these claims, and Mr. Templeton is appealing that order. We affirm.
This lawsuit arises out of Mr. Templeton’s resignation from his job with UPS in Springdale on June 4, 2001. In late May of 2001, Mark Hagge, a security investigator for UPS, received a report from Chris Parrish, a UPS employee, that two other UPS employees had been involved in a theft. During the investigation of that theft, Mr. Hagge interviewed Jeremy Williams and Chris Eubanks. Both Mr. Williams and Mr. Eubanks admitted that they had stolen drugs from the UPS Springdale Center, identified Mr. Templeton as having stolen drugs from the Center also, and signed written statements implicating Mr. Templeton. Specifically, Mr. Eubanks stated that he saw Mr. Williams and Mr. Templeton take two to three bottles of hydrocodone out of the over-goods area. The over-goods area is the area where items that have come out of packages or packages that do not have labels are held for processing in Little Rock. Mr. Eubanks also stated that Mr. Templeton told him that he took a package off of the belt that contained 3000 generic xanax pills. Mr. Williams stated that he and Mr. Eubanks each took one bottle of pills from the over-goods area and then he told Mr. Templeton about the pills being in the area. Mr. Williams stated that, after he told Mr. Templeton about the pills, another bottle of pills disappeared from that area. Mr. Williams also claimed that he gave Mr. Templeton about thirty-five pills for a back injury. Both Mr. Williams and Mr. Eubanks resigned after being given the option of termination or resignation.
After these interviews, Mr. Hagge prepared a summary of the investigation and gave it to Sergeant Shriver of the Springdale Police Department, advising Sergeant Shriver that he had not yet interviewed Mr. Templeton because he was on vacation and that the information was based on the statements of Mr. Williams and Mr. Eubanks only. On June 4, 2001, Mr. Hagge met with Mr. Templeton and the union steward, Tom Dedrich, and explained that Mr. Williams and Mr. Eubanks had admitted stealing some pharmaceuticals and had implicated him in the theft also. Mr. Templeton denied any involvement in the theft, but admitted that Mr. Williams had given him some muscle relaxers in the parking lot after he got off of work one day. Mr. Templeton signed a written statement confirming this.
Mr. Hagge reported this information to the Labor Manager, Walt Dickson, who decided to terminate Mr. Templeton. Jim Beavers, the Springdale Center manager, and Mr. Hagge met with Mr. Templeton on the evening of June 4, 2001, and told him that he was being terminated for the possession of drugs on UPS property. Mr. Hagge told him that he could resign instead, but that if he did not resign, he would be terminated.
Mr. Templeton resigned and then filed this action against the appellees, claiming wrongful termination, breach of contract, outrage, and deceit. In a removal action, the federal court disposed of the breach-of-contract claim and the wrongful-termination claim. Therefore, only the claims for outrage and deceit remain. The circuit court granted the appellees’ motion for summary judgment on these claims, and Mr. Templeton appeals.
We set forth the standard of review for summary judgment in Jordan v. Diamond Equipment & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005), stating:
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Riverdale Development Co. v. Ruffin Building Systems Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. George v. Jefferson Hosp. Ass’n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). We view the evidence in the light most favorable to the non-moving party, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
Jordan, supra.
Mr. Templeton’s first point on appeal is that the circuit court erred in granting summary judgment on his claim for outrage. In order to establish the tort of outrage, the plaintiff must establish the following four things: (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the defendant’s actions were the cause of the plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Brown v. Tucker, 330 Ark. 435, 441, 954 S.W.2d 262, 266 (1997). We have taken a strict view in recognizing an outrage claim, particularly where it is alleged in employment relationships. See, e.g., Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Sterling v. Upjohn Healthcare Services, Inc., 299 Ark. 278, 772 S.W.2d 329 (1989). We explained in City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994), the reason we take such a narrow view in recognizing claims for the tort of outrage that arise out of the discharge of an employee:
The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will frequently feel considerable insult when discharged. In this context we have written: “Because of the employer’s right to discharge an at-will employee, a claim of outrage by an at-will employee cannot be predicated upon the fact of the discharge alone. However, the manner in which the discharge is accomplished or the circumstances under which it occurs may render the employer hable.” Harris v. Arkansas Book Co., 287 Ark. 353, 356, 700 S.W.2d 41, 43 (1985). In another employee discharge case, Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 244-45, 743 S.W.2d 380, 383 (1988), we wrote, “The recognition of the tort of outrage does not open the doors of the courts to every slight insult or indignity one must endure in life.”
Morse, supra.
We have held that a plaintiff met the standard for proving the tort of outrage in an employee-discharge situation in only one case, Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). In Tandy, the employer, Tandy Corporation, thought that Bone, the manager of one of its stores in Little Rock, might be stealing either money or merchandise. Bone suffered from a personality disorder which made him more susceptible to stress and fear than normal. For three years before the incident, he had been taking a tranquilizer prescribed by his psychiatrist. To investigate Tandy’s suspicions of theft, Bone’s supervisor and two security officers came to the store to conduct an investigation of the losses. Bone was questioned at thirty-minute intervals throughout the day. According to Bone, the security men cursed him, threatened him, and refused to allow him to take his prescribed medication. Bone was also asked to take a polygraph examination, which he did. At that time, he was in a highly agitated condition and again asked for his medication. The request was denied. He testified that he had asked to be allowed to take his medication at least three times, but each time his request was refused. He stated that once he reached in a desk drawer for his medicine, but one of the investigators slammed the drawer shut. He was eventually taken to another location in Little Rock for the polygraph examination, and, while there, he hyperventilated. Bone attempted to return to work the next day, but was unable to do so. He was subsequently hospitalized for a week. In holding that the circuit court did not err in sending Bone’s claim of outrage to the jury, we made clear the basis for the holding, stating:
It was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication and to continue to pursue the investigation knowing Bone was on medication or Valium. We emphasize that the notice to the employer of Bone’s condition is the only basis for a jury question of extreme outrage.
Tandy Corp. v. Bone, 283 Ark. 399, 408, 678 S.W.2d 312, 317 (reversed and remanded on other grounds)(emphasis added).
In the case at bar, the appellees’ conduct simply was not “extreme and outrageous,” “beyond all possible bounds of decency,” and “utterly intolerable in a civilized community.” Brown, supra. The outrageous conduct that Templeton principally complains of relates to the conduct of the appellees toward Mr. Eubanks — that is, that they forced him to implicate Mr. Temple-ton when there was absolutely no proof that any drugs were even missing from UPS. Conduct directed towards Mr. Eubanks does not give rise to a claim by Mr. Templeton against that conduct, particularly in light of the fact that Mr. Templeton himself admitted that he accepted drugs from another UPS employee in the UPS parking lot. We hold that, even if all allegations of theft against Mr. Templeton were untrue, UPS’s conduct in investigat ing the alleged theft, interviewing Mr. Templeton, and making a decision to fire him if he failed to resign for accepting drugs on UPS property does not constitute conduct that is extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community. We affirm the circuit court’s decision granting summary judgment on Mr. Templeton’s claim for outrage.
Mr. Templeton’s next claim on appeal is that the circuit court erred in granting summary judgment on his claim of deceit, or fraud. To establish fraud, a plaintiff must prove five elements: (1) a false representation of material fact; (2) knowledge or belief by the defendant that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance upon the representation; and (5) damage suffered as a result of that reliance. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 580, 66 S.W.3d 568, 577 (2002). Mr. Templeton has not made it clear to us exactly what false representations of material fact were made, but merely argues generally that appellees made implied threats, false accusations, and lies about him. The only alleged misrepresentations we can glean from his generalizations are these: (1) Mr. Hagge accused Mr. Templeton of theft; (2) when Mr. Hagge offered resignation instead of termination, he allegedly stated that, if he were terminated, Mr. Temple-ton would never work in the area again; and (3) Mr. Hagge allegedly assured Mr. Templeton that no harm would come to him if he would sign a statement that he received pills from Mr. Williams.
We reiterate that, to prove fraud, Mr. Templeton must offer proof that these respresentations were false, that appellees knew or believed they were false, that they were made with the intent to induce action on Mr. Templeton’s part, and that he justifiably relied upon the false representations in so acting. With regard to the first alleged misrepresentation, Mr. Templeton cannot prove the first element •— that is, that this statement is actually false. Mr. Templeton’s own testimony does not support his accusation that Mr. Hagge accused him of stealing. Mr. Templeton testified that Mr. Hagge stated that two fellow UPS employees said that he stole drugs. This statement was true. Whether the two employees were lying or not is irrelevant to Mr. Templeton’s claim of deceit on the part of the appellees. Mr. Hagge merely reported, truthfully, that the two UPS employees implicated Mr. Templeton in the theft.
Mr. Templeton has also failed to offer proof on the second alleged misrepresentation. Mr. Templeton testified in his deposition that Mr. Hagge and Mr. Beavers told him that if he were terminated and fought it, he would end up with a bad work recommendation and probably would not get a job in the area. Mr. Hagge then offered him the option of resigning and keeping a clean work record. Even assuming Mr. Templeton’s characterizations of these statements is correct, he has not shown that either Mr. Hagge or Mr. Beavers knew or believed that this was a misrepresentation, that they intended Mr. Templeton to rely on this misrepresentation, or that Mr. Templeton acted in justifiable reliance on this alleged misrepresentation. Mr. Templeton testified that he opted to resign with a clean work record because he did not want to take a chance on not being able to get future employment. He felt that a termination for any reason could hurt his work record. In other words, he believed the statements were true, and he has not offered any proof that Mr. Hagge and Mr. Beavers did not also believe the statements were true. Finally, Mr. Templeton did not act in reliance upon any misrepresentation; he acted to preserve a clean work record.
With respect to the third alleged misrepresentation, Mr. Templeton has offered no proof that Mr. Hagge actually made the statement attributed to him that no harm would come to Mr. Templeton if he would sign a statement that he received pills from Mr. Williams. Mr. Hagge denies making such a statement, and Mr. Templeton testified that he was not certain if Mr. Hagge or the union steward, Mr. Dedrich, actually made the statement. To survive a motion for summary judgment, the non-moving party must meet proof with proof and demonstrate the existence of a material issue of fact. Jordan, supra. Mr. Templeton’s bare allegation that he “thought” Mr. Hagge made this statement simply is not sufficient. Moreover, he has offered no proof that if he had not signed the statement, he would not have been terminated. He had already admitted in his interview with Mr. Hagge that he received the pills from Mr. Williams. In the summary-judgment hearing, his attorney stated that Mr. Templeton “was glad to tell them that he took the pills in the investigation meeting” and that he would have admitted this whether or not the allegedly false representation had been made. He simply claims that a false representation that nothing would happen to him caused him to sign a written statement. Mr. Templeton neither alleges nor offers any proof that UPS would not have terminated him simply because he did not sign a written statement. We reject this argument.
Finally, even if he could establish the other elements, Mr. Templeton cannot establish that he suffered damage as a result of his reliance on any of these allegedly false representations. False or fraudulent representations not resulting in injury are not actionable. Tyson Foods, Inc., supra. Any damage Mr. Templeton suffered was not due to his justifiable reliance, but to his unemployment. He admitted in the summary-judgment hearing that UPS had a right to terminate him and, therefore, that he would have been unemployed whether he resigned or not. Therefore, he cannot establish that he suffered damage because of justifiable reliance on appellees’ alleged misrepresentations. Any damages he suffered were caused by his unemployment, which would have occurred even if he had chosen not to resign. Therefore, the circuit court did not err in granting summary judgment to the appellees. Accordingly, we affirm the judgment of the circuit court.
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Robert L. Brown, Justice.
Appellants Carol Henry and rv^ JVIichael Henry appeal the circuit court’s denial of their motion to vacate an order of adoption, which permitted appellee Dawn Buchanan’s adoption of appellee Darren Buchanan’s daughter, D.B. The Henrys are the biological, maternal grandparents of D.B. Their sole point on appeal is that the circuit court erred in denying their motion to vacate when they had preexisting visitation rights with the child authorized by circuit court order but were not given notice of the adoption proceedings. We disagree with the Henrys and affirm the denial order of the circuit court.
The record reflects that on November 3, 2002, the Henrys’ daughter and the biological mother of D.B., Regina Kay Beeman, consented to the adoption of D.B. by Dawn Buchanan. On July 14, 2004, the circuit court entered the adoption decree permitting the adoption, and that same day, an amended decree of adoption was filed.
On August 13, 2004, Carol Henry and her daughter, Regina Beeman, filed a motion to vacate the order of adoption. Carol Henry alleged that prior to the adoption, Darren Buchanan was served notice that the Henrys had filed a petition for contempt against him in the Benton County Circuit Court. She stated that the Henrys had visitation rights regarding D.B., which were granted under the order of the Benton County Circuit Court, and Darren Buchanan failed to bring those rights to the court’s attention prior to the order of adoption. In addition, she asserted that he failed to provide them with notice of the hearing on the petition for adoption. She claimed that the adoption order adversely affected their court-ordered visitation rights, and, thus, the July 14, 2004 adoption decree should be vacated by the court and a hearing be held on the adoption issue with all parties having notice.
On December 21, 2004, a hearing was held on the motion to vacate. The circuit court entered its order on January 18, 2005, in which it concluded that “the maternal grandparents in this case were not entitled to receive notice of the adoption proceeding as A.C.A. § 9-9-212(g) does not apply to this situation.”
In their appeal, the Henrys contend that under this court’s case law and because they had preexisting court-ordered visitation rights, they should have been given notice of the pending adoption proceeding. Because they were granted neither notice nor an opportunity to be heard in the adoption proceeding, they maintain that the decree of adoption should have been vacated by the circuit court and that they should have been granted the right to intervene in the adoption proceedings.
Arkansas law provides that “[e]xcept as provided in §§ 9-9-212 and 9-9-224, notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.” Ark. Code Ann. § 9-9-207(b) (Supp. 2003). Thus, in order to receive notice of a hearing on a petition for adoption pursuant to statute, one’s consent is required, or the person must fall within the two exceptions set out under §§ 9-9-212 or 9-9-224.
Arkansas law further provides that consent is only required in the following cases:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(1) The mother of the minor;
(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, or he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought;
(3) Any person lawfully entitled to custody of the minor or empowered to consent;
(4) The court having jurisdiction to determine custody of the minor, if the legal guardian or custodian of the person of the minor is not empowered to consent to the adoption;
(5) The minor, if more than ten (10) years of age, unless the court in the best interest of the minor dispenses with the minor’s consent; and
(6) The spouse of the minor to be adopted.
Ark. Code Ann. § 9-9-206(a) (Repl. 2002). It is obvious to this court that the Henrys do not fall within the categories of people for whom consent, and presumably notice, are required. As a result, the Henrys would only be entitled to notice of the adoption hearing if they fell within the two statutes referenced in § 9-9-207, which are §§ 9-9-212 and 9-9-224.
The only provision of§ 9-9-212, which relates to grandparents, is subsection (f), which requires:
(f) When one (1) parent of a child or children is deceased, and the parent-child relationship has not been eliminated at the time of death, and adoption proceedings are instituted subsequent to such decease, the parents of the deceased parent shall be notified under the procedures prescribed in this subchapter of such adoption proceedings, except when the parent-child relationship has been terminated pursuant to § 9-27-341.
Ark. Code Ann. § 9-9-212(f) (Supp. 2003). This provision, however, is inapplicable to the Henrys, as their daughter, the biological mother of D.B., was living at the time of the adoption proceedings. Nor is § 9-9-224 relevant as it does not apply to grandparents. We conclude that after reviewing the statutory scheme applicable to adoption proceedings that the Henrys, even though they are biological grandparents with visitation rights, were not entitled to notice of the hearing on D.B.’s adoption under Arkansas statutory law.
Nor does the case law cited by the Henrys entitle them to notice. Each of the cases they have cited, and others found by this court, in which notice was permitted to grandparents, involved grandparents who were parents of a deceased parent whose child was being adopted. See, e.g., In Re: Adoption of Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000) (holding that the appellants, paternal grandparents of the child who was the child of the appellee and the appellants’ deceased son, had a right to notice under § 9-9-912(g), but not the right to present evidence on whether the adoption would be in the child’s best interest); Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000) (holding that the due-process rights of the maternal grandmother, whose daughter had died, were not violated because there was no statutory right to grandparent visitation at the time the adoption decree was entered); Brown v. Meekins, 278 Ark. 67, 643 S.W.2d 553 (1982) (holding that grandparents of deceased mother who had court-ordered visitation rights under Ark. Stat. Ann. § 57-135 (Supp. 1981) are constitutionally entitled to receive notice of an adoption proceeding); Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981) (holding that the grandparents, whose son had been killed, were not entitled to continued visitation rights after adoption of child by stepfather as adoption decree terminated all legal relationships between the adopted individual and his relatives); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981) (holding that the grandparents of the deceased father’s children with visitation rights under Ark. Stat. Ann. § 57-135 had limited standing to intervene in proceedings for the adoption of their grandchildren, for the limited purpose of offering relevant evidence on whether the proposed adoption was in the children’s best interest).
Other cases decided by this court which involved grandparents, but which make no specific mention of whether their child was deceased, provide no further guidance in deciding the Henrys’ claim. See, e.g., Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981) (declining to find the adoption statutes unconstitutional on the basis that they deprive grandparents of their rights without due process). However, this court has permitted paternal grandparents, with whom children had lived at one time and thus stood in loco parentis, to maintain an action to annul an order of adoption where the petition alleged that the adoptive parents were mistreating the children. See, e.g., Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961). Finally, the Henrys’ reliance on the Florida Supreme Court’s decision of In Re: Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991), is misplaced, as that court’s holding was premised on the Florida Constitution.
What is more instructive on the matter before us is this court’s opinion in Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997). In Vice, an adopted child’s paternal grandmother sought visitation rights after her son consented to the child’s adoption. This court observed that where a natural parent consented to the adoption of a child by another person, the consenting parent’s relatives lose their legal right to visitation because such rights are derivative of the consenting parent’s rights and likewise are terminated when the parents’ rights are ended. We further observed in Vice that because all legal relationships terminate once a child is adopted, a biological grandparent is no longer legally entitled to visitation privileges. This court then rejected the grandmother’s claims that she was entitled to notice of the adoption and that she had acted in loco parentis by allowing the child to live in her home. We concluded that the grandmother had not provided authority for any claim that she was legally entitled to notice or deprived of any right to intervene in the adoption proceedings.
Additionally, in Cox v. Stayton, supra, we observed that at common law, grandparents have no presumptive right to custody or adoption of their grandchildren and no right of visitation, absent an order of the circuit court. We have further held that any rights existing in grandparents must be derived from statutes. See In Re: Adoption of Tompkins, supra.
Accordingly, a review of this court’s case law reveals that there are essentially two circumstances where a grandparent is entitled to notice of adoption proceedings: (1) statutorily, where the grandparent is the parent of a deceased child whose child is to be adopted; and (2) where the grandparent, despite the status of his or her child, has stood in loco parentis to the grandchild at some point. In the instant case, the Henrys do not fall within either category. Hence, they were not entitled to notice of the adoption proceedings, and the circuit court did not err in denying their motion to vacate the adoption decree.
Affirmed.
Regina Beeman’s basis for vacating the order of adoption is not before us in this appeal.
While the appellees make the additional argument that the Henrys’ visitation rights were based on an unconstitutional statute due in part to this court’s decision in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), the Linder case is not dispositive of the issue before us. | [
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Per Curiam.
The application for permission to appear as counsel on behalf of petitioner, Eric Randall Nance, is denied. In the alternative, even if we were to grant the application, the motion for stay of execution is denied. | [
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Robert L. Brown, Justice.
Petitioner Errick Deon Berry petitions this court for a writ of prohibition against the circuit court based on this court’s speedy-trial rule. Specifically, he contends that the circuit court erred by denying his motion to dismiss, which was in violation of his guaranteed right to a speedy trial because he was not brought to trial within twelve months from the date of the charge and because the State failed to prove sufficient excludable periods. The State concedes there was a speedy-trial violation. We grant the petition for writ of prohibition.
The following timeline is relevant for deciding this issue:
• November 5, 2003 - the State charged Berry by criminal information with four counts of delivery of controlled substances.
• November 5, 2003 - the circuit court issued an arrest warrant for Berry.
• April 22, 2004 — Berry was arrested on the aforementioned charges.
• May 11, 2004 - circuit judge, by filed letter, set Berry’s trial for August 24, 2004.
• September 1, 2004 - circuit judge, by filed letter, reset Berry’s trial for November 23, 2004, due to a “joint request.”
• October 7, 2004 — circuit judge, by filed letter, reset Berry’s trial for November 23, 2004, due to a “joint request.”
• December 3,2004 — circuit judge, by filed letter, reset Berry’s trial for March 8, 2005, due to “docket congestion” and noted that an older case was tried in its stead.
• The docket sheet further reflects the following occurrences:
o August 24,2004 - crime lab witness not available; continued to 11/23/2004 on “joint motion.”
o September 1,2004 — case reset for jury trial (“joint request”) to 11/23/2004 @8:30 AM.
O October 7, 2004 - case reset (“joint request”) for jury trial 11/23/2004 @ 8:30 AM.
o December 3, 2004 - case reset for jury trial (“docket congestion”) to March 8,2005.
• February 25, 2005 - Berry filed a motion to dismiss his case for lack of a speedy trial.
• March 7, 2005 — a hearing was held before the circuit judge on Berry’s motion to dismiss. The court found that because two periods of time were excludable periods, the case did not violate . Rule 28.1 of the Arkansas Rules of Criminal Procedure. The judge denied Berry’s motion to dismiss.
• March 8, 2005 — the circuit judge entered its order denying Berry’s motion to dismiss. The order said in part:
This case has been continued twice, the first time on the joint motion of the state and defense [unavailability of a crime lab witness], and the second time because a jury trial was held in an older criminal case [CR-2001-93]. The time encompassed within those two periods is excludable under Rule 28.
Even if the time between the filing of the information [November 5, 2003] and the date of defendant’s arrest [April 22, 2004] is counted against the time the state has to bring the defendant to trial, the excludable periods are more than sufficient to take this case out of the operation of Rule 28. Accordingly, the defendant’s motion to dismiss is denied.
• April 4, 2005 - Berry filed in the circuit court a notice of filing a petition for writ of prohibition in this court and motion for continuance of trial date pending ruling on his petition for writ of prohibition.
• April 5, 2005 — circuit judge entered an order granting Berry’s continuance. The judge stated that the trial shall be continued until the Arkansas Supreme Court has handed down an opinion regarding Berry’s prohibition petition.
• April 6, 2005 - Berry filed his petition for writ of prohibition in this court.
The sole issue before this court is whether the circuit judge erred by denying Berry’s motion to dismiss for lack of a speedy trial. The State concedes that Berry’s petition for a writ of prohibition should be granted by this court. Nevertheless, we choose to address the issue.
Rule 28.1 of the Arkansas Rules of Criminal Procedure requires an accused to be brought to trial within twelve months unless necessary delay occurs as authorized under Arkansas Rule of Criminal Procedure 28.3. See Moody v. Arkansas County Circuit Court, S. Dist., 350 Ark. 176, 85 S.W.3d, 534 (2002). We have explained the operation of these rules as follows:
This means that a defendant must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State
bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.
Id. at 181, 85 S.W.3d at 537.
As in Moody, supra, Berry was arrested after the criminal information containing the charges against him was filed in this case. Thus, the time commenced to run from the date the criminal information was filed, which was November 5, 2003. See Ark. R. Crim. P. 28.2; Moody, supra. Berry filed his motion to dismiss on February 25, 2005, which tolled the time for speedy-trial purposes. See Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). He asserted that the total time from the filing of the criminal information to Berry’s filing of his motion to dismiss amounted to 478 days. He has, therefore, demonstrated that as of the date he filed his motion to dismiss, the State was 113 days beyond the twelve-month limitation mandated under Rule 28.1. Berry, accordingly, has made a prima facie case of a speedy-trial violation, and the burden shifts to the State to show that the 113 days of delay were caused by the defendant or were not otherwise justified. See Moody, supra.
We begin by breaking down the 478 days into three relevant time periods:
• Time Period #1 - November 5, 2003 to August 24, 2004 (criminal information to first trial date) = 293 days
• Time Period #2 — August 24, 2004 to November 23, 2004 (witness unavailability/“joint motion”) = 91 days
• Time Period #3 - November 23, 2004 to February 25, 2005 (“docket congestion”) = 94 days
Time Period #1 is not at issue in this case, as it was considered by the circuit judge and the parties to be included in the speedy-trial calculation against the twelve-month (365 day) requisite period. The first period of delay we consider is Time Period #3 — the period from November 23, 2004 (when the circuit judge reset the trial date due to “docket congestion”), to February 25, 2005 (when Berry filed a motion to dismiss for speedy-trial reasons). The circuit judge moved Berry’s court date forward from November 23, 2004, to a date more than three months later, which was March 8, 2005. Other than “docket congestion” the circuit judge’s only explanation for resetting Berry’s trial date was that a jury trial was held in an older criminal case.
Berry urges that the period of time included in Time Period #3 does not constitute an excludable period under Rule 28.3, because this court has held that a circuit judge’s decision to continue a trial due to “docket congestion” is not a sufficient explanation to exclude the period of the delay from time to be included in the speedy-trial calculation. Berry further claims that the circuit judge’s explanation failed to include any determination that the continuance would not prejudice Berry, or to give a reason for why the trial was not scheduled on the next available date as required by Rule 28.3(b).
Rule 28.3 allows for exclusions due to docket congestion when the judge explains with particularity the reason the trial docket does not permit trial on the original date. Rule 28.3(b) (1-3) provides:
(b) The period of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted:
(1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled;
(2) the court determines that the delay will not prejudice the defendant; and
(3) the court schedules the trial on the next available date permitted by the trial docket.
In Moody, this court considered a period of delay where the petitioner’s new trial date was delayed seventy days due to docket congestion, without any further explanation by the judge other than the cryptic notation, “older case disposed of.” 350 Ark. at 185, 85 S.W.3d at 539. In Moody, supra, this court commented that nothing in the record or on the docket explained why a period as long as seventy days was required to dispose of another case. This court was concerned with the trial court’s failure to offer an explanation as to why the petitioner’s case could not have been tried closer in time to the original trial date, and noted that “[a] good many older cases might be disposed of in a seventy-day period.” Id. at 185, 85 S.W.3d at 539. This court further said that “the law is well settled that congestion of the trial docket without more is not just cause for breaching the speedy-trial rule,” and concluded that the lower court’s explanation for the continuance was not described with particularity as required by Rule 28.3(b)(1). Id., 85 S.W.3d at 539-40. This court explained that Rule 28.3 includes mandatory language, as it says that excluded periods “shall” be set forth by the court in a written order or docket entry. Id. at 186, 85 S.W.3d at 540; Ark. R. Crim. P. 28.3(a). Because there was no record properly explaining why the trial court had chosen to exclude these days, this delay did not constitute an excluded period for purposes of Rule 28.3. See Moody, supra.
Using the Moody case as clear precedent, the period of delay at issue in this case likewise does not constitute an excludable period under Rule 28.3. Like the circuit judge in Moody, supra, the circuit judge in this case failed to offer a sufficient explanation for its decision to delay the trial date more than three months from the previous trial date. Further, more than three months is a much longer delay than is seventy days, which was the period of delay in Moody. Because “docket congestion” is not a just cause for violating the speedy-trial rule, and because the trial court failed to offer any further explanation to satisfy Rule 28.3, the period of delay set out in Time Period #3 does not constitute an excludable period under that rule. Therefore, this ninety-four day time period is not excludable from the time that Berry may include in his speedy-trial calculation.
When we add Time Period #1 (293 days) to Time Period #3 (94) days, this amounts to a total of 387 days. Three-hundred eighty-seven days is well over the 365-day requisite period included in Rule 28.1. As a result, Berry’s right to a speedy trial would be violated if he was tried at any future point for these charges. Because the amount of time in Time Period #3 is not excludable and when accumulated with the period of time in Time Period #1, exceeds 365 days, there is no reason for us to consider whether the days in Time Period #2 should have been excluded. Because the circuit court lacks subject-matter jurisdiction to try this case, Berry’s petition for writ of prohibition is granted.
Petition granted.
This court has consistently stated that prohibition lies to the subject-matter jurisdiction of the circuit court and not to a judge. See, e.g., Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Though the style of this petition is directed toward the circuit judge and not to the circuit court, this court will treat the petition as though it correctly challenged the jurisdiction of the circuit court.
The letters filed on September 1,2004, and October 7,2004, are very similar. The circuit judge reset the trial date for November 23,2004, in both letters.
The trial set for November 23,2004 was moved due to a “congested docket.” The State incorrecdy describes what we have labeled as Time Period #3 as including the period of delay (rom December 3, 2004, to March 8, 2005, which was the date of the circuit judge’s order denying the motion to dismiss as well as the date set for the new trial. The proper time to be discussed is the time from November 23, 2004, to February 25, 2005, the date the motion to dismiss was filed. | [
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Per Curiam.
On January 1,2005, this court affirmed Brady Carter’s convictions for kidnapping and third-degree battery; in the same decision, this court reversed on the State’s cross-appeal, holding that the trial court erroneously reduced Carter’s aggravated robbery charge to the lesser included crime of robbery. In doing so, this court remanded the robbery charge for further proceedings. See Carter v. State, 360 Ark 266, 200 S.W.3d 906 (2005). The decision to remand the robbery charge was based, in part, on State v. Zawodniak, 329 Ark. 179, 946 S.W.2d. 936 (1997), in which this court held that, when a trial judge makes an error of law rather than an error of fact, double jeopardy is not implicated.
Carter filed a petition for writ of certiorari and a motion for leave to proceed informa pauperis to the United States Supreme Court, both of which were granted. The Supreme Court vacated this court’s original judgment and remanded the case for further consideration in light of Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). We now direct the parties to rebrief the sole issue of whether the court’s decision to remand Carter’s robbery charge was in violation of his constitutional rights against double jeopardy. Specifially, in accordance with the Supreme Court’s opinion, we ask the parties to address the impact of Smith v. Massachusetts, supra.
It is only fair that the parties should be given an opportunity to present their opinions in this matter by allowing the lawyers to be zealous advocates on behalf of their clients and not mere bystanders. For this reason, rebriefing is ordered. In order to expedite this matter, the State will be required to submit its brief on or before December 18, 2005. Carter’s brief will be due no later than twenty days after the State’s brief is filed. | [
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Donald L. Corbin, Justice.
Appellant Michael Lowry was convicted in the Saline County Circuit Court of one count of stalking in the first degree, one count of arson, and eleven counts of violating a protection order. He was sentenced to twenty years’ imprisonment on the stalking charge and ten years’ imprisonment on the arson charge, to be served consecutively, as well as one year in the county jail for each of the protection-order violations. Lowry appealed to the Arkansas Court of Appeals, which reversed on the grounds that the trial court erred (1) in denying his motion for continuance due to discovery materials being furnished by the State two days prior to trial, and (2) in allowing James Heath to testify during the State’s case-in-chief when his name had not been provided as a witness before trial. See Lowry v. State, 90 Ark. App. 333, 205 S.W.3d 830 (2005). The State filed a petition for review of that decision, pursuant to Ark. Sup. Ct. R. 2—4(c)(ii), alleging that the court of appeals’ decision conflicts with precedent from this court. We granted the State’s petition. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004); Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004). We affirm the judgment of conviction.
The record reflects that Lowry and Sandra Lewellen were romantically involved off and on for a period of three years, from April 1999 to May 2002. During that time, Lowry also dated Rhonda Brassiere, to whom he was married at the time of his trial. Lowry’s dating both women caused friction in his relationship with Sandra. As a result, Sandra broke it off with him numerous times, whenever she heard rumors that Lowry was seeing Rhonda.
Their final breakup occurred on May 28, 2002. On that date, Sandra went to Lowry’s home to confront him, after she had heard Rhonda driving past her trailer, honking her horn, as Rhonda routinely did whenever she was on her way over to Lowry’s. Sandra knocked on the door several times, but Lowry would not answer. She finally became so angry that she kicked-in Lowry’s front door, which hit Lowry in the nose, causing it to bleed. Lowry then dove at Sandra and began beating her. The two struggled for some time, but Lowry eventually pinned Sandra down on the ground, with his knee in her back. While he had her down, Lowry cupped his hand over her mouth and nose several times and said: “Go unconscious, Bitch.” He then leaned down to her ear and told her: “I have a lighter ... I will light your house, I will light your son’s house, and I will light your mother’s house with them in it[.]” When the police finally arrived on the scene, they broke up the fight and placed Sandra under arrest for breaking and entering.
Sandra received numerous injuries from her fight with Lowry, including several broken ribs. The following day, May 29, 2002, she applied for and was granted a temporary order of protection, prohibiting Lowry from having any contact with her or her children. Thereafter, Lowry proceeded to contact Sandra numerous times on the telephone; he also followed her a couple of times. On June 21, Lowry called Sandra and left a long message and then played her a love song. Also on that date, Lowry contacted Sandra’s sixteen-year-old daughter, Kim Lewellen, and told her he just wanted to get in touch with Sandra to help her with the charges pending against her. At one point during the conversation, Lowry said: “I’m sorry, but I’m going to have to do this.”
Later that same date, Kim and her boyfriend Dustin Tuber-ville bought a CD player and some speakers to install in Kim’s 1993 Ford Escort. They had the CD player installed at the store, but Dustin and a friend installed the speakers later that evening while they waited for Kim to get off work.
While she was working, Kim received a visit from Lowry. He spoke with Kim briefly and gave her the engagement ring that he had previously given her mother. He then went out to the parking lot and spoke to Dustin. He made small talk about how Kim’s car was running and then got into his truck to leave. Before he left, Lowry called Dustin over to his truck and told him that he never meant to hurt Sandra, but that she was the one that broke into his house and kicked-in his door. Lowry showed Dustin his black eye and also a bite mark that he received in the altercation with Sandra. As Dustin started to walk away, he heard Lowry say: “They’re going to burn for this shit.” Dustin reported this threat to Kim.
Later that same evening, Kim dropped Dustin off in Benton and returned home around 11:00 p.m. When she returned home, she called Dustin, and they talked until around 1:00 a.m., when Kim went to bed. Shortly thereafter, both Kim and Sandra heard a loud noise and saw the bright light of flames outside their mobile home. They ran outside to find the front of Kim’s car, which was parked right next to Sandra’s car, engulfed in flames. They went to a neighbor’s house and called 911. The fire eventually spread to Sandra’s car. When police and fire personnel arrived on the scene, Sandra told them that Lowry had set their cars on fire.
The next incident occurred the following day, June 22, 2002. Kim and Dustin were driving in Kim’s brother’s truck when they saw Lowry in his truck in front of them at a stop sign. Dustin, who was angry from the night before, “flipped [Lowry] off.” Lowry responded by pulling halfway into the parking lot of a nearby laundry mat, where he appeared to be making a phone call. Because he only pulled in halfway, he was blocking Kim’s path. When she drove around him, Lowry pulled in behind them and began chasing them at a high rate of speed, remaining close to their bumper. Kim was scared and crying during the episode. Lowry finally backed off once they got about a mile from Kim’s home.
On July 31, 2002, a little over a month after the car burnings and the high-speed chase, Sandra was leaving for work in the morning, when she noticed that someone had taken a knife and shredded her new patio furniture. One week after that, on the morning of August 6, Sandra again noticed damage to her property as she was leaving for work. On that date, she noticed Rhonda driving by her trailer, honking her horn, as was her routine. Sandra then heard a truck engine running outside her home. She thought that it was someone just easing their way through the trailer park; however, the truck did not pass by, but kept hanging around for a minute or two. She did not look outside to see who it was, because she was in a hurry to get to work. She finally heard the truck drive off. Moments later, as she was walking to her truck, which she had purchased to replace her burned vehicle, she noticed that the whole side of.it had been “keyed,” or scratched up by someone using a key or similar metal object. She called the police and filled out a report. While she was doing so, Rhonda drove back by her home. When she finished the report, Sandra drove off to go to work. At the bottom of the hill near her trailer park, she saw Lowry sitting in his truck. He pulled out in front of her and sped off. A little further down the road, he pulled over, got out of his truck, and was standing on the side of the street, waving his arms and laughing at Sandra as she drove by.
The final incident occurred the following day, August 7, 2002. As Sandra was again leaving for work, she saw Lowry sitting in a nearby parking lot. When she passed the lot, Lowry pulled out behind her and began to follow her. Sandra became frightened and called 911. According to Sandra, Lowry was riding so close to her rear bumper that he would have hit her if she had tapped her brakes. At one point, she noticed that Lowry was holding up a handmade sign that read, “Sandy I love you.” Shortly thereafter, Deputy Richard Friend, of the Saline County Sheriffs Department, arrived and stopped Lowry. When he pulled in behind Lowry, he noticed movement in the cab of the truck and saw Lowry put his arm behind the seat. Friend asked Lowry about the sign he had held up, but Lowry denied any such sign. Despite his denial, the officer recovered the sign from Lowry’s vehicle. He also recovered two guns and ammunition. Lowry later admitted that one of the guns was loaded and that he had unloaded it after being stopped.
I. Sufficiency of the Evidence
Lowry’s first two points on appeal are challenges to the sufficiency of the evidence to support his convictions for first-degree stalking and arson. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005); Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005). We will affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Additionally, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).
When circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis than that of the guilt of the accused, or it does not amount to substantial evidence. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005); Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004). The question of whether circumstantial evidence excludes every other reasonable-hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
Before reviewing the proof presented below, we must address Lowry’s argument that the record is insufficient in that it does not contain a transcript of the jury instructions given by the trial court or the written instructions themselves. The record in this case was reconstructed pursuant to an order issued by the court of appeals, and the hearing in the trial court was made a part of the record on appeal. During the reconstruction hearing, the parties agreed that the instructions given were the standard AMCI2d instructions for the offenses charged. They agreed further that defense counsel did not object to any of the instructions given and did not proffer any non-AMCI2d instructions. Accordingly, the record is sufficient for us to review the arguments now raised on appeal.
A. Evidence of Stalking in the First Degree
Lowry first argues that there was insufficient evidence to support his conviction for first-degree stalking, under Ark. Code Ann. § 5-71-229 (Repl. 1997), which provides in pertinent part:
(a)(1) A person commits stalking in the first degree if he purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate family and he:
(A) Does so in contravention of an order of protection consistent with the Domestic Abuse Act of 1991, § 9-15-101 et seq., or a no contact order as set out in subdivision (a)(2)(A) of this section, protecting the same victim or victims, or any other order issued by any court protecting the same victim or victims; or
(C) Is armed with a deadly weapon or represents by word or conduct that he is so armed.
Under this provision, the State was required to prove that Lowry purposely engaged in a course of conduct to harass Sandra Lewellen and made a terroristic threat with the intent of placing her or her immediate family in fear of death or serious bodily injury, and that he did so in contravention of an order of protection or while he was armed with a deadly weapon or represented that he was so armed.
Appellant argues that there was insufficient proof that he made a terroristic threat during the time that the order of protection was in effect. The term “terroristic threat,” is not defined in section 5-71-229, nor has it been defined in this court’s cases interpreting that provision. However, we may glean its meaning from prior decisions from this court and the court of appeals interpreting the separate offense of terroristic threatening, Ark. Code Ann. § 5-13-301 (Repl. 1997). The conduct prohibited by section 5-13-301 is the communication of a threat with the purpose of terrorizing another. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). See also Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). However, a terroristic threat need not be verbal. Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984) (upholding a conviction for terroristic threatening where the defendant chased the victims in a car for over three miles and tried to run them into a ditch). Nor is it necessary that the threat be communicated by the accused directly to the person threatened. Richards v. State, 266 Ark. 733, 585 S.W.2d 375 (Ark. App. 1979) (upholding a conviction for terroristic threatening where the defendant told a third party that he’d better get the victim away from him or he would shoot the victim). Moreover, it is not necessary that the recipient of the threat actually be terrorized. Smith, 296 Ark. 451, 757 S.W.2d 554 (citing Richards, 266 Ark. 733, 585 S.W.2d 375). Finally, there is no requirement that it be shown that the accused has the immediate ability to carry out the threats. Wesson v. State, 320 Ark. 380, 896 S.W.2d 874 (1995); Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988).
In the present case, the evidence demonstrated that following the issuance of the order of protection on May 29, 2002, Lowry engaged in a course of conduct spanning more than two months in which he harassed and threatened Sandra Lewellen and her immediate family on at least three occasions. The first occurred on June 21, 2002, when Lowry apologized to Sandra’s teenaged daughter Kim for something that he was “going to have to do,” and was later overheard by Dustin Tuberville to say, “They’re going to burn for this shit.” Some seven hours later, Sandra and Kim awoke to find their vehicles on fire in their driveway only a few feet from their mobile home. The second threatening event occurred the following day when Lowry chased Kim at a high rate of speed through East End until the girl got close to her home. The third threat occurred on August 7, 2002, when Lowry waited for Sandra to leave for work and then pulled in behind her and proceeded to tailgate her while holding up a handmade sign and while armed with a loaded gun. These three incidents constitute sufficient evidence of a terroristic threat as provided in section 5-71-229. We thus affirm Lowry’s conviction for first-degree stalking.
B. Evidence of Arson
As for the charge of arson, Lowry argues that the evidence was insufficient to prove that the fire that burned Sandra’s and Kim’s cars was intentionally set. Arkansas Code Annotated § 5-38-301 (Repl. 1997) provides in pertinent part:
(a) A person commits arson if he starts a fire or causes an explosion with the purpose of destroying or otherwise damaging:
(1) An occupiable structure or motor vehicle that is the property of another personf.]
Lowry submits that there was only circumstantial evidence that the fire was actually set by someone. He urges .that there was just as much plausible evidence that the fire was caused by an electrical short resulting from the installation of the stereo equipment in Kim’s car earlier that day. He contends that the evidence presented by the State was not sufficient to overcome the common-law presumption against arson. See Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). He is mistaken.
The evidence showed that on the night of the fire, both Sandra and Kim heard a loud noise outside their window around 1:00 a.m. Kim testified: “I just heard a noise like ‘whoosh’ outside my bedroom window, and it lit up orange.” Sandra described hearing a “horrible loud roar.” She explained: “It was just roaring. It was like if you threw gasoline on a fire, how it roars real loud. If it’s a lot at one time.” After she heard the roar, she observed that her window “was glowing.” Sandra also testified that she smelled gasoline at the scene after the tow-truck driver hauled the cars away from the scene.
Richard Blair, the East End District Fire Chief, testified that although he was not able to determine the precise cause of the fire, he noted that Kim’s vehicle was completely engulfed in fire, from the front of the hood to the firewall area. He indicated that the fire started at the front of the vehicle and was making its way back toward the passenger compartment. He stated that, in his experience, a gasoline fire makes a loud whooshing sound when it ignites and it burns quickly. An electrical fire, on the other hand, will start out rather small, especially in a low-voltage vehicle like Kim’s, and would burn more slowly than a gasoline fire. The start of an electrical fire would sound more like a pop. Based on his experience, Blair opined that if a witness heard a whoosh sound, it would be more likely that the fire was started with gasoline or some other equivalent accelerant.
James Heath, the tow-truck driver who removed the burned cars from the scene, testified that when he loaded the vehicles onto his flatbed truck, he noticed that gas was pouring out of one of the vehicle’s gas line onto the ground. He explained that he loaded the vehicles by hooking up a wench and lifting them from the rear, thus raising the gas tanks and causing the gas to pour out of the lines. He also stated that he could “smell gas for days” at the impound lot where he had towed the vehicles.
In addition to the foregoing, the State presented evidence showing that it was Lowry who started the fire. Deputy Tony Baugh, of the Saline County Sheriffs Department, and Reserve Deputy Christi Preator positively identified Lowry’s truck as being parked in an area within walking distance of the scene and within minutes of the time the fire started. They testified that they were on routine patrol of the area when they saw the fire. On their way to the scene, they noticed a gold GMC pickup truck with a ladder rack parked on the side of the readjust down the hill from the fire. Baugh recognized the truck, but he did not initially recall the owner’s name. They shined their spotlight on the truck and observed it for twenty or thirty seconds, during which time they noticed a person standing at the back of the driver’s side wearing jeans and brown and black hiking boots. They thought it was probably just someone relieving himself, and they headed on to the fire.
Once Baugh and Preator arrived at the scene, Sandra reported that Mike Lowry had started the fire. It was at that point that it occurred to Baugh whose truck he had just seen. Once he made sure that everyone was out of harm’s way and that the fire was under control, he drove back down the hill to see if the truck was still there, but it was gone. A couple of hours later, the officers, along with Saline County Sheriff s Detective Jimmy Long, went to Lowry’s house. There, they found the truck they had seen previously, and they noted that the hood was still warm. They also discovered in Lowry’s bedroom the brown and black hiking boots they had seen with the truck.
Finally, there was evidence that only hours before the fire Lowry was overheard to say: “They’re going to burn for this shit.” There was also evidence from Sandra that during their fight on May 28, Lowry told her: “I have a lighter ... I will light your house, I will light your son’s house, and I will light your mother’s house with them in it[.]”
The foregoing constitutes sufficient evidence that the fire of the two vehicles was purposely set by a person and that Lowry was that person. As stated above, to be substantial, circumstantial evidence need only exclude every reasonable hypothesis than that of the guilt of the accused. Stewart, 362 Ark. 400, 208 S.W.3d 768; Harper, 359 Ark. 142, 194 S.W.3d 730. Whether such evidence does exclude every other such reasonable hypothesis is for the jury to decide. Id. Because we conclude that the jury in this case did not need to resort to speculation or conjecture in reaching its verdict, we affirm the conviction for arson.
II. Admission of Letter
For his next point on appeal, Lowry argues that the trial court erred in allowing into evidence a letter written by Rhonda Lowry to Sandra Lewellen. The letter was postmarked July 6, 2002, and reads: “Sandy, Thanks for cleaning the lake lot up. It looks real good. P.S. I do swallow.” During the trial, Rhonda indicated that the letter was meant to be a dig of sorts at Sandra, because she had commented before that she did not want to be cleaning on the lake lot. The postscript was intended to answer a question posed by Sandra to Lowry when she discovered that he was having a relationship with Rhonda. Lowry contends that the letter was not relevant because there was no evidence that he authorized, aided, or encouraged Rhonda to send it.
The State contends that this letter was relevant because it had a tendency to show a violation of the protection order and a course of harassing conduct by Lowry toward Sandra. Specifically, the State asserts that the letter is relevant because the order of protection prohibited Lowry from having even indirect contact with Sandra. Moreover, the State asserts that Lowry has failed to show how he was prejudiced by the evidence, as Rhonda admitted to writing the letter and explained the meaning of its content on cross-examination, without objection by Lowry.
The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Morris v. State, 358 Ark. 455, 193 S.W.3d 243 (2004); Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). Nor will we reverse absent a showing of prejudice by the appellant. Id.
The record in this case demonstrates that the State sought to introduce the letter in its case-in-chief through Sandra’s direct examination. Lowry objected, but the trial court allowed it. However, Lowry did not renew his objection when the State later cross-examined Rhonda about the letter’s content and meaning. This court has held that even if an appellant makes a proper objection to the admission of evidence, he or she must preserve the argument by renewing that objection if the State subsequently attempts to introduce the same or similar evidence. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998); Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). Because Lowry failed to renew his objection to the letter’s relevancy when the State later elicited the same or similar evidence, he failed to preserve his objection for our review. We thus affirm the trial court on this point.
III. Evidence of Additional Instances of Property Damage
Lowry also argues that the trial court erred in admitting testimony from Sandra Lewellen regarding two incidents in which she discovered damage to her personal property. As with the previous point, he argues that the evidence was irrelevant because there was no proof to connect him to it. The first incident was the damage to Sandra’s patio furniture, which took place around the end of July 2002. The second incident was the “keying” of Sandra’s truck one week later.
We agree with the State that even though neither incident could be directly connected to Lowry, the evidence had at least some tendency to show a course of harassing conduct by Lowry toward Sandra and her family. Especially that concerning the keying of Sandra’s truck, as she testified that she heard Rhonda drive by her home right before she discovered the damage and then saw Lowry waving his arms and laughing at her immediately after she reported the incident to the police. We simply cannot say that the trial court abused its discretion in admitting the evidence.
IV Motion for Continuance
The next point Lowry raises on appeal is that the trial court erred in denying his motion for a continuance due to the State’s having provided additional discovery materials to defense counsel two days prior to trial. The additional materials consisted of Lowry’s cellular telephone records; a handwritten report from the fire inspector; a recorded statement given by Lowry to the police, a summary of which had been previously received by the defense; and a certified transcript of Lowry’s bond hearing, which had previously been given to defense counsel in uncertified form. On appeal, Lowry only challenges the late discovery of the phone records and the fire inspector’s report.
The record reflects that defense counsel sought a continuance on the ground that she would not have time to read the materials and go over them with her client in preparation for trial. The trial court denied the continuance, but told defense counsel that it would entertain a motion to exclude the materials as evidence in the event the State attempted to use them at trial. Defense counsel did not attempt to exercise this option at trial. Even so, Lowry now argues that his convictions must be reversed based on the denial of a continuance. We disagree.
This court has held that a prosecutorial discovery violation does not automatically result in reversal. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Id. Absent a showing of prejudice, we will not reverse. Id; Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). Under Ark. R. Crim. P. 19.7, if the trial court learns that a party has failed to comply with a discovery rule, it may exercise any of the following options: (1) order the party to permit the discovery or inspection of materials not previously disclosed; (2) grant a continuance; (3) prohibit the party from introducing the material; or (4) enter another order that the court deems proper under the circumstances. Id. The choice of an appropriate sanction is within the trial court’s discretion. Id.
Here, the trial court chose the third option, informing defense counsel of its willingness to consider a motion to prohibit the State from introducing any of the materials as evidence at trial. The choice of this option was within the trial court’s sound discretion. In any event, Lowry has not demonstrated how he was prejudiced by the late discovery. The record demonstrates that the State never attempted to introduce the fire inspector’s report. Likewise, the State made no attempt to introduce Lowry’s cellular telephone records until after Lowry himself referenced the records in his direct examination. Moreover, we agree with the State that there could be no prejudice from the admission of the phone records because they were Lowry’s own records. This court has held that the prosecution is not required to disclose information that is already accessible by the defendant. See Johninson v. State, 317 Ark. 431, 878 S.W.2d 111 (1994). We thus affirm the trial court’s ruling on this point.
V Rebuttal Witness
For his final point on appeal, Lowry argues that the trial court erred in allowing James Heath, the tow-truck driver, to testify in the prosecution’s case-in-chief even though he was not previously revealed as a potential witness. The State argued that it had no obligation to reveal Heath’s name prior to trial because he was a rebuttal witness, whose testimony would be used to rebut any attempt by the defense to assert that Sandra Lewellen had poured gasoline on her property after the police and fire personnel had left the scene of the fire to show that the fire was purposely set. The trial court agreed with the State that Heath was a rebuttal witness who did not have to be disclosed prior to trial. However, the trial court allowed Heath to testify in the State’s case-in-chief because defense counsel had opened the door to his testimony during opening statement.
The purpose of rebuttal evidence is to respond to evidence presented by the defense. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197 (1994). If a witness is properly a rebuttal witness, the State is not required to disclose his or her identity before trial. Id. In Chenault v. State, 253 Ark. 144, 484 S.W.2d 887 (1972), this court held that it was error for the State to present evidence of the deceased’s good character in its case-in-chief; however, the error was made harmless because the defense had raised the issue of his bad character during opening statement and then pursued such evidence on cross-examination. This court held: “Although, in the present case it was erroneous to permit the introduction of character testimony at the time it was introduced, the defense in pursuing her evidence as outlined in her opening statement to the jury, made the error harmless.” Id. at 147, 484 S.W.2d at 889 (emphasis added). This holding is controlling of the issue in this case.
The record reflects that during her opening statement, defense counsel presented the theory that the charges against Lowry were not the result of his criminal behavior but were, instead, the product of a woman scorned. Her statement reflected in relevant part:
[Detective Long] said that when they left there they went and because there was a gold truck involved and the other officer saw it, they went in and arrested Mike that night, got him out of bed and arrested him that night, that very night, left immediately from her house and went — got a call to go back out there and when they went back out there the smell of gasoline was so strong, there was gasoline all over the side of that trailer, all over the side of [Sandra] Lewellen’s trailer. They were looking for accelerants. They were looking for gasoline, didn’t see any gasoline out there when they first went out. But when they got called back out there [Sandra] Lewellen wasn’t there, her daughter wasn’t there. Kim —• Sandy’s sister wasn’t there that was there previously. Everybody was gone. But there was gasoline [poured] all over the trailer, something they didn’t see the first time. They couldn’t find any trace of accelerants the first time they went out there. It was just another attempt of a scorned woman trying to get even and trying to put him in jail because if she couldn’t have Mike then nobody would.
The trial court ruled that counsel’s statement had raised the inference that the Lewellens had poured gasoline on their own property to make it look like arson. It thus allowed the State to present Heath’s testimony that he noticed gasoline pouring out one of the vehicle’s gas line when he loaded them onto his flatbed truck.
Under our holding in Chenault, 253 Ark. 144, 484 S.W.2d 887, any error in allowing Heath to testify in the State’s case-in-chief, even though he was a true rebuttal witness, was made harmless when defense counsel painted the picture of a woman scorned during opening statement, suggesting to the jury that the gasoline could only be smelled after the fire had been extinguished because Sandra intentionally poured gasoline on her own property to frame Lowry. Defense counsel then pursued this evidence on cross-examination of Detective Long.
Additionally, we note that defense counsel made no objection when Sandra testified on direct examination to essentially the same observation that Heath would later testify about. Specifically, Sandra testified that she did not smell gasoline right away, not until “a little later that night.” In response to the prosecutor asking her when she noticed the smell, she responded: “When the tow guy was pulling the cars off is when the gasoline smell was there.” Heath’s testimony was essentially cumulative to this. Accordingly, we cannot say that the trial court erred in allowing Heath to testify during the State’s case-in-chief.
Circuit court affirmed; court of appeals reversed.
Lowry does not challenge his eleven convictions for violating a protection order.
The May 29 order of protection was extended for a period of two years on July 8, 2002. | [
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Roberet L. Brown, Justice.
Appellant, Jose Feliciano Williams, appeals from the circuit court’s judgment and commitment order in which he was convicted of aggravated robbery and misdemeanor theft of property. He was sentenced as a habitual offender with two prior felony convictions to twelve years’ imprisonment for the aggravated robbery conviction. Additionally, he was sentenced to one month in the county jail for the misdemeanor theft-of-property conviction and to five years’ imprisonment for having used a firearm to commit aggravated robbery. The two sentences for imprisonment were ordered to be served consecutively, with the one month jail time to be served concurrently. Williams now contends on appeal that: (1) the five-year sentence imposed on him for having used a firearm to commit aggravated robbery was forbidden by the plain meaning of Arkansas Code Annotated § 5-4-104(a) (Repl. 1997); and (2) five years of Williams’s seventeen-year aggregate sentence of imprisonment is illegal, because it results from stacking a general statute imposing a sentence for use of a firearm to commit a felony offense onto the specific sentence enhancement for the use of a deadly weapon contained in the definition of aggravated robbery. We affirm the judgment of conviction.
The facts in this case are gleaned from the testimony at the ensuing trial. On the day of the crimes, Ms. Muc Yohe was working as a cashier at the North Little Rock Corner Store, which is a convenience store. On that day, she testified that Williams entered the store and robbed her at gunpoint. According to Ms. Yohe, when Williams threatened to shoot her, she gave him all the money that was in the cash register. Ms. Yohe specifically identified Williams at trial as the person who robbed her. Her testimony was corroborated by a videotape of the robbery, which was played for the jury, and by the testimony of Melvin Jefferson. Jefferson had given Williams a ride to the grocery store. When they arrived at the store, Jefferson did not go inside with Williams, but testified that after Williams got into Jefferson’s car, Williams told him to speed up and said to him: “Man, I done hit these folks.” According to Jefferson, Williams’s statement indicated that Williams had robbed or done something to somebody. Jefferson testified that Williams was holding a “big pistol” in his hands when he made that statement.
Subsequently, the State filed a felony information against Williams, charging him with aggravated robbery and misdemeanor theft of property. In addition, the State charged that Williams was subject to a sentence enhancement for using a firearm to commit a felony and as a habitual offender with more than one, but less than four, prior felony convictions. A jury trial followed, and Williams was found guilty of the two charges, and his sentence was enhanced.
For his first point on appeal, Williams claims that the five-year sentence imposed on him under Ark. Code Ann. § 16-90-120(a-b) (1987), for having used a firearm to commit aggravated robbery was forbidden by § 5-4-104(a). According to Williams, because his commission of aggravated robbery occurred after the passage of the Arkansas Criminal Code in 1975 and because aggravated robbery is defined in the Arkansas Criminal Code, Williams’s' sentencing should be governed solely by that Code, and not by any other statutory provision. To support his argument, he points to § 5-4-104(a), which reads: “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” He further asserts that because Ark. Code Ann. § 5-l-103(a) (Repl. 1997) provides that the provisions of the Arkansas Criminal Code “shall govern the prosecution for any offense defined by this code and committed after January 1, 1976,” his crime, which occurred in 2004, is governed only by the Arkansas Criminal Code. He concludes that § 16-90-120(a-b) is not included in the Arkansas Criminal Code and cannot be applied.
Additionally, Williams cites this court to Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998), for the proposition that this court has interpreted § 5-4-104(a) to bar the application of sentencing provisions that were enacted prior to the Arkansas Criminal Code. Because § 16-90-120(a-b) was enacted in 1969, six years before the enactment of the Arkansas Criminal Code, Williams urges that it cannot be used to enhance his sentence. Finally, citing, e.g., Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002), Williams notes that the use of the word “shall” in § 5-l-103(a) means that the General Assembly intended mandatory compliance with the statute, unless an absurdity would result. He contends that rather than an absurd result, precluding the application of § 16- 90-120(a-b) to this case would result in greater uniformity and consistency in sentencing, which was one of the General Assembly’s goals in enacting the Arkansas Criminal Code in 1975.
This court has consistently described its canons of statutory interpretation in criminal matters as follows:
The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, “[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).
Hunt v. State, 354 Ark. 682, 686, 128 S.W.3d 820, 823 (2003).
The crux of Williams’s argument is that there is a conflict between § 5-4-104(a) and § 16-90-120(a-b). In this case, these two statutory provisions can be read in a harmonious manner. Section 5-4-104(a) can be viewed as referring only to the initial sentence imposed based on the crime for which the defendant was convicted, and § 16-90-120(a-b) can be read as referring only to a sentence enhancement that may be added to the initial sentence.
Looking at the clear language of § 16-90-120(a-b), we observe that the legislature intended the statute to serve as an enhancement of the original sentence for the convicted crime, as the statute itself says that the sentence enhancement is an “additional period of confinement.” Ark. Code Ann. § 16-90-120(a) (emphasis added). We further note that when § 5-4-104(a) was enacted in 1975, the legislature did not choose to repeal or overrule § 16-90-120(a-b). This is important, since in Johnson v. State, supra, we have noted that when presented with the challenge of construing criminal statutes that were enacted at different times, the court presumes “that when the general assembly passed the later act, it was well aware of the prior act.” 331 Ark. at 425, 961 S.W.2d at 766 (holding that the Arkansas Criminal Code and the gambling-house statute can be read in harmony where one defines the term of imprisonment and the other allows the court to impose suspension or probation).
We hold that § 5-4-104(a) and § 16-90-120(a-b) can be read harmoniously to mean that § 16-90-120(a-b) is only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense.
Williams next argues that the five-year sentence imposed on him pursuant to § 16-90-120(a-b) is also illegal, because it results from stacking a general enhancement statute imposing a sentence for the use of a firearm to commit a felony offense onto the specific sentence enhancement for the use of a deadly weapon contained in the definition of aggravated robbery. Specifically, Williams argues that “aggravated robbery” is a specific sentence enhancement of robbery and is applicable only to robbery, while § 16-90-120(a-b) applies generally as an enhancement statute. Williams relies on two cases to support his argument — Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003), and Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988).
We first disagree with Williams that the Banks and Lawson cases control the outcome of this appeal. In Banks, the charge was third-degree domestic battering under Ark. Code Ann. § 5-26-305 (Repl. 1997). That statute provides that the misdemeanor charge will be automatically converted into a Class D felony, if the defendant had been convicted of a previous battering charge within the previous five years. Because of the enhanced felony charge based on the prior battering conviction for which the defendant was convicted, we held that it was error to enhance the defendant’s sentence further based on the general habitual offender statute, codified at Ark. Code Ann. § 5-4-501 (1987).
Similarly, in Lawson, the defendant was charged with DWI. At the time, he had at least three prior DWI offenses within three years of the DWI for which he was charged, which caused the charge to be enhanced to a felony. We held that enhancement had already occurred under the DWI statute and that the general habitual offender statute, § 5-4-501, could not precipitate an additional sentence. Again, we held that the stacking of the two enhancement statutes could not occur.
We view the situation in the instant case to be different. Here, we are not dealing with a statute like domestic battering or DWI that specifically provides for enhancement due to the commission of prior offenses of the same type. Rather, the stand-alone offense is aggravated robbery, which in the instant case is robbery armed “with a deadly weapon.” Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1997). Moreover, the aggravated robbery statute does not contain an enhancement from misdemeanor to felony status, as was the case in Banks and Lawson.
The General Assembly has enacted § 5-12-103, making it a separate offense to commit robbery “armed with a deadly weapon.” In addition, the General Assembly has given the sentencing court discretion to enhance the sentence up to fifteen years pursuant to § 16-90-120(a-b), when a firearm is employed in the commission of a felony. Because of the discretion vested in the sentencing court, we do not view this as an illegal stacking of sentences such as we had in Banks and Lawson for reasons already stated.
Affirmed.
Hannah, C.J., and Imber, J., dissent.
Williams adds that according to Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), an appellant may challenge an illegal sentence for the first time on appeal. Because he is, in fact, challenging the legality of the sentence in this case, he maintains that his failure to raise this argument before the circuit court does not bar this appeal. Relying on Mays v. State, 351 Ark. 26, 89 S.W.3d 926 (2002), the State agrees with appellant that to the extent he now claims that his sentence is an illegal sentence on its face, the issue may be raised for the first time on appeal.
We are aware of a previous statute that mandated an increased sentence of fifteen years as an enhancement when a firearm was used in the commission of a felony, but that statute was repealed by the General Assembly in 1994. See Acts 532 and 550 of1993, repealing Ark. Code Ann. § 5-4-505 (repeal effective January 1, 1994). The repealing acts left § 16-90-120(a-b) intact, which leaves the enhancement to the discretion of the sentencing court. Though previous case law discussed the illegality of stacking the enhancement under the repealed statute on top of the sentence for aggravated robbery, see Rust v. State, 263 Ark. 350, 565 S.W.2d 19 (1978), that case law did not involve or affect § 16-90-120 (a-b). Moreover, Williams does not argue the Rust case or the repealed statute in this appeal as grounds for reversal. | [
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Jim Gunter, Justice.
This case arises from an order from the Searcy County Circuit Court, denying a petition for writ of mandamus filed by appellants, Waco Watts and Joshua Henley. Appellants sought an order from the circuit court directing appellees, Searcy County Board of Elections and Dufford Taylor, chairman (jointly Board), to place a proposed initiative on the ballot for the general election in the City of Leslie (City). Appellants appeal the circuit court’s denial of their petition, and we dismiss the appeal as moot.
Watts, a citizen of Anchorage, Alaska, and Henley, a citizen of Leslie, circulated an initiative petition in the City to allow its citizens to vote on a proposed ordinance that would require the City to accept a gift of land from Watts. The petition further required that the City accept additional money for the mainte nance and development of the park. The proposal also requested the City to seek any grants for the development of the park and to keep funds from Watts in a separate account to ensure that the funds were used for the designated purpose of developing the park. The ballot title on the proposed measure was “Ordinance Accepting Gift of Park.”
Appellants circulated the initiative petition in the City, and they obtained ninety-five signatures from citizens in support of the measure. On September 2, 2004, the initiative petition was presented to Benny Davis, City Clerk, who certified that the petition was sufficient. Davis took the petition to Wesley Smith, the Searcy County Clerk, who reviewed the signatures and checked them against a list of registered voters in the City. Smith deemed that there was an adequate number of signatures and filed the petition. Smith later notified Watts that the initiative petition did not have a valid ballot title and would not be accepted by the Board. However, Smith presented the petition to the Board for consideration. The Board met to consider the initiative petition and decided to reject the petition because, according to the testimony of Dufford Taylor, chairman of the Board, the petition’s ballot title was insufficient.
On October 7, 2004, Watts and Henley filed their petition for writ of mandamus, requesting that the circuit court enter an order requiring the Board to include the initiative on the ballot for the November 2, 2004, general election in the City. Appellants also requested a temporary order precluding the Searcy County Clerk from printing any ballots for the City until the petition for writ of mandamus is decided.
The Board filed its response on October 21, 2004, alleging (1) that Watts had no standing to file a petition, as he was not a registered voter in the City, and (2) that the initiative did not have a valid ballot title because the title did not inform the voter “the full scope of the initiative being voted upon[.]” The Board asked that the circuit court deny the petition for writ of mandamus.
On October 22, 2004, the circuit court sent a letter order, denying the petition for writ of mandamus for the following three reasons: (1) the exact title was not submitted to the Board as required by Ark. Const. Art. 5, § 1; (2) a written certification pursuant to Ark. Code Ann. § 14-14-915(3) (Repl. 1998) was not made; and (3) the ballot title was insufficient, as “location[ ] and requirements of the City with regard to the maintenance, development and other restrictions placed on the property by Mr. Watts . . .” were not included in the title. An order to that effect was entered by the circuit court on December 2, 2004. Appellants timely filed their notice of appeal on December 8, 2004.
Before we reach the merits of appellants’ arguments, we now examine the issue of whether this appeal involving an election in November 2004 is moot. As a general rule, the appellate courts of this state will not review issues that are moot. Allison v. Lee County Election Commission et al., 359 Ark. 388, 198 S.W.3d 133 (2004). To do so would be to render advisory opinions, which we will not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. We have recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
The questions raised in appellants’ appeal are moot for two reasons. First, we find nothing in the record that the parties requested expedited consideration of this case. Flere, the election for which the initiative petition was circulated took place over one year ago on November 2, 2004. In appellants’ petition for writ of mandamus, they request that the circuit court “enter an order requiring the Searcy County Board of Elections to include the initiative on the ballot for the November 2, 2004, general election in the City [of] Leslie, for a temporary order precluding the Searcy County Clerk from printing any ballots for the City of Leslie until this petition is decided . . . [.]” Appellants’ prayer for relief in their petition for writ of mandamus renders the matter moot.
Second, the issues do not raise considerations of substantial public interest which, if addressed, would prevent future litigation. See Allison, supra. While it is true that, in some election cases, we will consider the merits of an appeal after the election has been held, we usually do so when the public interest is involved. Appellants do not suggest that their case falls within this exception, and we are not persuaded that an exception should be made in this case. Any review of appellants’ initiative petition would not only be untimely, but would also constitute an advisory opinion. We have often said that we do not render advisory opinions. Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001).
Thus, for the foregoing reasons, we dismiss appellants’ appeal as moot. | [
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Per Curiam.
Stark Ligón, Executive Director of the Committee on Professional Conduct and Larry G. Dunklin, Respondent, file a joint motion to waive briefing and for approval of the parties’ agreement of sanctions in a pending disbarment proceeding against Mr. Dunklin. The special judge assigned to this case approved these proposed findings and recommendation of sanction.
The record reflects the special judge was, in some measure, persuaded by the fact that Panel A of the Professional Conduct Committee voted unanimously in favor of the agreed sanction. The special judge opined this court was not bound to accept the parties’ sanction recommendation. The parties entered into a stipulation of facts on September 19, 2005. They also offered the special judge certain conclusions of law and the Model Rules alleged to have been violated. Those rules and violations included Model Rules 1.15 which provides, among other things, for the safekeeping of property and funds of clients or their persons. This includes keeping trust account records and avoiding an overdraft in such account at any time. The parties also stipulated in their agreement to the violation of Model Rule 8.4(c), which includes, but is not limited to engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. While Rule 8.4(b) is not mentioned in the special judge’s order, we note that the (b) provision provides that misconduct includes, committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.
We are further concerned with Mr. Dunklins’ alleged violation when he falsely denied under oath that he had never represented Mark Kimbrough in a criminal proceeding. The Pulaski County Circuit Court records show otherwise. Also of concern is Mr. Dunklin’s mishandling of proceeds he possessed that belonged to Renee Crater ($1,000) and Doris Jean Russell ($3,000).
As pointed out by Mr. Ligón, this court’s procedures regulating professional conduct does not provide for consent to discipline following the filing of a disbarment action; nor does Mr. Dunklin cite us to any such authority. This court has not provided for such a remedy, and has no plans to do so.
Because of the concerns we list above, we deny the parties motion to waive briefing and for approval of stipulation of sanction and return this matter to the special judge for further proceedings. | [
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CLIFF HOOFMAN, Judge
| Appellant Adam Alexander appeals from the Sebastian County Circuit Court’s July 14, 2015 order granting appellee’s motion for summary judgment and denying appellant’s motion for extension of time to respond, and from the circuit court’s August 11, 2015 order denying appellant’s motion for new trial or reconsideration. On appeal, appellant contends that (1) the circuit court erred in concluding that he failed to produce sufficient evidence to show that genuine issues of fact remain to be tried with respect to whether the discharge of his employment was motivated by discrimination in violation of the Americans with Disabilities Act (ADA) and the Arkansas- Civil Rights Act (ACRA), and (2) the circuit court erred in denying his request for additional time to complete discovery before ruling on appel-lee’s motion for summary judgment. We affirm in part and reverse and remand in part.
Appellant filed his complaint against ap-pellee Eastern Tank Services, Inc. (Eastern) on 1 pMay 2, 2014. He alleged that Eastern unlawfully terminated his employment in violation of the ADA the ACRA, and 42 U.S.C. § 2000ff (GINA). Aexan-der began his employment with Eastern as a dispatcher in September 2011. He alleged that he began seeing Eric Johnson, LPC, LMFT, at Vista Health in Barling, Akansas, around August 9, 2012, for biweekly outpatient-therapy sessions. He provided a copy of a note explaining the need for his therapy to his safety manager, Paul McGehee, and Barry Zielinski with Eastern. Aexander also alleged that he had revealed to his employer that his therapist mentioned the possibility that he had Asperger’s Syndrome, that he was scheduled to be tested in the future, and that he felt that he could still handle his work without any problems. Aexander stated that he subsequently overheard McGehee speaking on his cell phone stating that “we are not going to have someone with that condition working in this office.” However, he did not overhear who McGehee was speaking about, Aexander’s employment was subsequently terminated on August 20, 2012, and Eastern told him that he was being “laid off.” Aexander further alleged in his complaint that he was wrongfully terminated because of his disability, because he was regarded as having a disability, or because of his genetic informa tion in violation of the ADA, the ACRA, and GINA. ■
Appellee filed an' answer on May 30, 2014, and a motion for summary judgment on March 11, 2015. In' its motion for summary judgment, Eastern alleged that Alexander had failed to establish a prima facie case for discrimination under the ADA or the ACRA and had [ Jailed to establish any unlawful employment practice in connection with GINA. Eastern additionally alleged that Alexander was laid off because its largest customer was reducing -the number of loads, and fewer dispatchers were needed. Eastern further alleged that Alexander’s alleged disability, and genetic information had no impact on its decision; instead, Alexander had the least seniority except for one other dispatcher who actually occupied the position of slip seat, meaning that the employee could either dispatch or drive, because he held a commercial driver’s license. Eastern attached several exhibits to its motion, including depositions and. affidavits. In McGehee’s affidavit, he revealed that the decision to lay off Alexander was made in early August before Alexander had ever mentioned Asperger’s Syndrome. The termination date of the first employee that Eastern laid off was on August 8, 2012. However, McGehee explained in his affidavit that Alexander’s termination was delayed until August 20, 2012, because pf other dispatchers being out sick or on vacation.
On March 17, 2015, appellant filed a motion for an extension of time to file a response, which the circuit court subsequently granted and extended his time to file a response until May 1⅝ 2015. Appellant filed a second request for an extension of time on April 27, 2015, which the circuit court granted and extended his time to file a response until May 29, 2015. On May 29, 2015, appellant filed a partial response in opposition to the motion for summary judgment' and alternatively requested the court to again grant him an 1 ¿extension of time to respond. In his partial response, he alleged that there were genuine issues of fact that still existed and that appellee’s motion for summary judgihent should be denied in its entirety. Alternatively, he requested additional time to conduct further discovery to show that any decline-in-business explanation offered by Eastern was merely pretext and to incorporate any 'further findings in á subsequent response, “if such be necessary.” After Eastern filed a reply, the circuit court filed an order on July 14, 2015, stating, “The Court being well-informed declares that the [summary-judgment] motion should be and is hereby GRANTED. Plaintiffs request fór a second extension of time is therefore DENIED.” Although appellant filed a motion for new trial,or for reconsideration, the circuit court denied this motion on August 11, 2015/ without any additional findings incorporated into the. order. This timely appeal followed.
Appellant first contends that the circuit court erred in concluding that he failed to produce sufficient evidence to show that genuine issues of fact remain to be tried with respect to whether the discharge of his employment was motivated by discrimination in violation of the ADA and the ACRA. Summary judgment may be grant ed only when there are no genuine issues of material fact to be litigated. Greenlee v. J.B. Hunt Transp. Servs., 2009 Ark. 5506, 342 S.W.3d 274. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. In the context of employment-discrimination cases, our supreme court has noted that an affidavit must contain “[m]ore than mere assertions or possibilities ... to defeat a motion for summary judgment.” Mack v. Sutter, 366 Ark. 1, 6, 233 S.W.3d 140, 145 (2006).
The ADA prohibits employers from discriminating against a disabled individual qualified for a job because of the disability of such individual. 42 U.S.C.A. § 12112(a) (Westlaw through Pub.L. No. 114-115 (excluding Pub.L. Nos. 114-94 and 114-95)). To establish a prima facie ease of disability discrimination, a plaintiff must show (1) that he or she was disabled; (2) that he or she was qualified to do the essential job functions with or without reasonable accommodation; and (3) that he or she suffered an adverse action due to his or her disability. See Johnson v. Windstream Commc’ns, Inc., 2012 Ark. App. 590, 2012 WL 5327799 (Johnson I). The ACRA provides citizens of this state legal redress for civil-rights violations of state constitutional or statutory provisions, hate offenses, and discrimination offenses, and ACRA claims are analyzed under the same principles as ADA claims. Id. However, the statutes differ Lin that the ADA includes within its definition of the term “disability” an individual who is “regarded as” disabled by his or her employer, 42 U.S.C. § 12102, and the ACRA does not include such language in its definition. Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 954-55, 69 S.W.3d 393, 402 (2002) (refusing to extend coverage of the ACRA to include individuals who are regarded as being disabled by their employers).
Our supreme court has adopted the three-stage, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) in analyzing these types of employment-discrimination cases. Brodie v. City of Jonesboro, 2012 Ark. 5, 2012 WL 90016. The plaintiff bears the initial burden of establishing a prima fa-cie case of discrimination. Id. Once a prima facie case is established, a rebutta-ble presumption shifts the burden to the employer to articulate a legitimate, nondiscriminatory reason for discharging the employee. Id. If the employer articulates such a reason, the presumption disappears, and the plaintiff bears the burden of proving that the employer’s proffered reason is merely a pretext for discrimination. Id.
Our supreme court has additionally made it clear that, even in summary-judgment cases, the circuit court must evaluate employment-discrimination cases using the McDonnell Douglas framework and that it must explain its findings. Brodie, supra. As in Brodie and Johnson I, we cannot conclude that the circuit court properly-evaluated this case under McDonnell Douglas. There is no mention in the circuit court’s order about a prima facie ease of discrimination, a legitimate, nondiscriminatory reason for the discharge, or pretext for discrimination. See Brodie, supra; Johnson I, supra; Johnson v. Windstream Commc’ns, Inc., 2014 Ark. App. 99, 2014 WL 580151 (Johnson II). Accordingly, we must reverse and remand this case to the circuit |7court to explain its ruling on each issue. Johnson I, supra. As we further explained in Johnson II, the circuit court must use the McDonnell Douglas framework in reviewing appellee’s motion for summary judgment regarding appellant’s ADA and ACRA claims and include its analysis in its summary-judgment order. Implicit in these directions is the possibility that the circuit court might determine after its analysis that the claims are not appropriate for summary judgment. See Johnson II, supra.
In his second point on appeal, appellant contends that the circuit court erred in denying his request for additional time to complete discovery before ruling on appellee’s motion for summary judgment. We disagree. A circuit court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appealing party. Bennett v. Lonoke Bancshares, Inc., 356 Ark. 371, 155 S.W.3d 15 (2004). In order for this court to reverse the circuit court’s denial of a continuance, the appellant must show that the circuit court abused its discretion and that the additional discovery would have changed the outcome of the case. Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411. Under Arkansas Rule of Civil Procedure 56(f) (2015), the party opposing the motion for summary judgment is required to present an affidavit setting forth the problems the party is having gathering facts to support its opposition to summary judgment. See id.; Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).
While the passage of time is not determinative, our supreme court has explained that it is a factor to be considered. Jenkins, supra. Appellant filed his complaint on May 2, 2014. | sAlmost a year later, appellee filed its motion for summary judgment. Although appellant’s response was initially due on April 2, 2015, the circuit court granted two extensions, giving appellant until May 29, 2015, to file a response. Although appellant filed a response on May 29, 2015, requesting the circuit court to deny the motion for summary judgment, appellant alternatively requested additional time to complete further discovery and incorporate any findings into a subsequent response, despite the fact that appellant had already received two extensions to file his response. Furthermore, even on appeal, appellant fails to adequately explain how he was prejudiced and instead alleges only that he “may have been able to provide ... more evidence of pretext ... or [evidence] that the reasons given for his termination were not credible.” (Emphasis added.) Therefore, under these circumstances, we cannot say that the circuit court abused its discretion, and we affirm on this point on appeal.
Affirmed in part; reversed and remanded in part.
Kinard and Glover, JJ., agree.
. In Alexander’s deposition, he explained that he was officially diagnosed with Asperger's Syndrome on May 21, 2014, after he had undergone testing.
. Alexander alleged that his response to the motion for summary judgment was originally due on April 2, 2015.
. Alexander titled his alternative request as a "REQUEST FOR SECOND EXTENSION OF TIME TO RESPOND” even though he had already received two extensions.
.Appellant does not contend that the circuit court erred in granting summary judgment based on the allegation in his complaint that appellee also violated GINA by unlawfully discriminating against him based on his genetic information, and any argument as to this claim is therefore abandoned. | [
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ROBERT J; GLADWIN, Chief Judge
| Appellant Devin' Hardin appeals the June 5, 2015 order of the Saline County Circuit Court that denied his motion to transfer his case to juvenile court. He argues that the circuit court erred in denying his motion to transfer his case to juvenile court or in not designating and dispos ing of his case under the provisions of the Extended Juvenile Jurisdiction Act (EJJA). We affirm.
I. Facts
On February 11, 2015, appellant, d/o/b July 5, 1997, was charged by felony information as an adult in the criminal division of circuit court with aggravated robbery, a Class Y felony, terroristic • act, a Class B felony, and aggravated assault, a Class D felony, allegedly committed on December 20, 2014, when he was seventeen years old. Appellant moved to have the charges transferred to the juvenile division of circuit court, for treatment either as a juvenile-delinquency case or, in the alternative, to have his casé disposed of under |¡,the provisions of the EJJA. The State filed a response opposing the motion,' and the case proceeded to a hearing on June 1, 2015.
. At the hearing, testimony by police officers, juvenile officers, a Department of Youth Services (DYS) worker, and appellant’s father was presented, and exhibits were admitted into evidence, including appellant’s Family in Need of Services (FINS) records, juvenile court, records, DYS reports, and documents regarding current charges appellant is facing as an adult. At the conclusion of the hearing, the circuit court heard arguments of counsel on the motions and ruled that both of appellant’s ■ pleadings seeking to have the case resolved in juvenile court as either a juvenile-delinquency or EJJA case would be denied and that he could continue to be prosecuted as an adult. A formal order with written findings denying appellant’s motion was filed on June 5, 2015, and a timely notice of appeal from the order denying the motions was filed on July >2, 2015.
II. Standard of Review and Applicable Law
A decision denying a motion to transfer will be reversed only if it is clearly erroneous. Brown v. State., 2015 Ark. App. 570, 2015 WL 6378733. It is within a prosecuting attorney’s discretion to charge a juvenile in either the juvenile or criminal division of circuit court if a juvenile is at least sixteen years old when he- or she allegedly engages in conduct that, if committed by an adult, would be a felony. Id.; Ark.Code Ann. § 9-27-318(c)(1) (Repl. 2015). On.-the motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court. Brown, supra; Ark.Code Ann. § 9-27-318(e). The moving party bears the burden of proving that |sthe case should be transferred to the juvenile division of circuit court. Brown, supra; Miller v. State, 2015 Ark. App. 117, 456 S.W.3d 761.
The circuit court shall order the case transferred to another division only upon' a finding by clear and convincing evidence' that the é'ase should be transferred; Brown, supra; ArkiCode Ann. § 9-27-318(h)(2). Clear and' -convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Brown, supra; R.W.G. v. State, 2014 Ark. App. 545, 444 S.W.3d 376.
Arkansas Code Annotated section 9-27-318(g). sets forth all the factors the court shall consider in a transfer hearing:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of-circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
• (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;.
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against. persons or property, and any other previous history .of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first-birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
|4A circuit court is required- to make written findings on all of the above factors. Ark.Code Ann; § 9 — -27—318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Neal v. State, 2010 Ark. App. 744, 379 S.W.3d 634.
III. Denial of Appellant’s Motion to Transfer Case to Juvenile Court
Appellant argues .that the circuit court erred in not granting his motion to transfer his case to juvenile court to be resolved as a juvenile case. Appellant submits that he was an accomplice to the offenses with which he was charged and was not the principal actor. He was accompanied by an adult with respect to all offenses with which he was charged. Appellant notes that he did not have a serious juvenile history — dispositions in a FINS case and juvenile offenses, but only minor misdemeanors — however, he acknowledges that he was ultimately committed to DYS. No personal injury resulted to anyone during these incidents, and the acts were spontaneous and not the result of elaborate planning. Appellant argues that he should have had his ease transferred to juvenile court because, although he had been to DYS before, he responded well to a structured environment and had no problems while there. His case manager at the DYS facility testified that he completed all of his programs, accomplished all of his goals, and did very well while at the DYS facility. Appellant urges that he deserved of another chance to be treated within the juvenile system, especially considering the fact that he faces a minimum of seven years’ imprisonment for his most serious charge of aggravated robbery, a Class Y felony.
|BWe disagree and hold that appellant’s arguments do not demonstrate that the circuit court clearly erred by denying his motion to transfer his case to the juvenile division. Although the circuit court noted in its order that appellant committed his offenses with an accomplice, that his delinquency adjudications were for misdemeanors, that none of his victims had been physically injured, -and that he had good educational reports and “no major or mi nor disciplinary incidents” while committed to DYS, the circuit court nonetheless concluded that other evidence bearing on the statutory factors weighed against granting his motion to transfer his case to the juvenile division. Evidence supporting that finding includes (1) his alleged participation in premeditated and serious crimes of violence against persons for which he had some part in planning, (2) his history of failing to comply with juvenile-division orders, and (3) his prior participation in every program available in juvenile court (except inpatient rehabilitation). The circuit court did not ignore evidence that appellant cites in support of his motion; it simply weighed the evidence differently than appellant requested.
It is well established that the weight afforded to each of the statutory factors and its supporting evidence is within the province of the circuit court. See, e.g., D.A.S. v. State, 2010 Ark. App. 144, 2010 WL 502977. Appellant’s disagreement with how the evidence was weighed provides no basis for reversal, and the circuit court’s denial of his motion to transfer to the juvenile division is affirmed.
IV. Refusal to Designate/Dispose of Case Under the Provisions of the EJJA
For his second point of error, appellant contends that the circuit court erred in not designating and disposing of his case under the provisions of the EJJA. It has been noted that |fithe factors for consideration of whether a ease should be transferred to juvenile court or treated as an EJJA case are essentially the same and vary only slightly. See Richardson v. State, 97 Ark. App. 52, 244 S.W.3d 736 (2007); see also Ark.Code Ann. § 9-27-503. With respect to the standard of review concerning whether to treat a case as an EJJA case, it is reviewed under the same clearly-erroneous standard as whether the case should be transferred to juvenile court. Richardson, supra. For all of the reasons set forth in support of appellant’s argument that his case should have been transferred to juvenile court, he also claims that his case should have been treated and disposed of in accordance with the provisions of the EJJA.
We find no merit in appellant’s argument. Because the circuit court determined that appellant’s case should remain in the criminal division, any claim about an EJJA designation is moot, because an EJJA designation applies only when a case is pending in the juvenile division. See, e.g., M.R.W. v. State, 2012 Ark. App. 591, 424 S.W.3d 355. That limited application also explains why appellant’s claim premised on section 9-27-503(e) — that it mandated that his case be treated as a juvenile case when his request that his case be treated as an EJJA case was denied—is incorrect. In J.S. v. State., 2009 Ark. App. 710, at 5, 372 S.W.3d 370, 373, this court explained that
there can be no EJJ[A] designation unless the case either is already in the juvenile division or is transferred to the juvenile division. Subsection [9-27-]503(e) states that if the court denies the requested EJJ[A] designation, then it shall “proceed with the case as a delinquency proceeding.” Clearly, this presupposes that, before a request for designation is considered, the case is in the juvenile division.
Because the circuit court denied his request to transfer his case to the juvenile division, appellant’s claims that his .case should have been treated as an EJJA case are meritless. Accordingly, we affirm.
|7Affirmed.
Harrison and Whiteaker, JJ., agree. | [
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PER CURIAM
hln 2008, appellant- Rodney L. Jones was charged with capital murder in the shooting death of his former wife, Orzona Fischer, for’ which the State sought the death penalty. He Was tried by a jury in 2010 and- sentenced to life imprisonment without parole. We affirmed. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411.
At trial, appellant raised the affirmative defense of riot guilty by reason of mental disease or defect, arguing that his use of prescription drugs and the stress that he had been experiencing. induced him - to commit 'th,e murder. , There was evidence adduced at trial that appellant traveled from Colorado to Clinton, Arkansas, where he used a rifle to shoot Ms. Fischer through the front window of her house. He then returned to Colorado, disposing of the rifle ⅛ a river in Kansas. Appellant later confessed to authorities, and the rifle was recovered. A witness for the State testified that, months before appellant left Colorado, appellant had tried to convince the witness on multiple occasions to provide him with an alibi for when he traveled to Arkansas toRplant drugs on the victim’s land or to otherwise harm her. On cross-examination, the defense elicited testimony from the witness that the medication appellant was taking changed his behavior, making him agitated.
After the judgment was affirmed on appeal, , appellant timely filed in the trial court a. verified, pro se petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). With leave of. the trial court, he was allowed to amend the petition. An eviden-tiary hearing was held, and the relief sought was denied. Appellant brings this appeal.
In his - petition, appellant alleged that he was not afforded effective assistance of counsel at trial. This -court has held that it will reverse ‘the trial court’s decision granting- or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evh dence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Caery v. State,. 2014 Ark. 247, 2014 WL 2158140 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is, whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial |acannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a cláim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by‘the Sixth Amendment to the United States Constitution. Caery, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial, counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable- professional judgment. Henington v. State, 2012 Ark. 181, 403. S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark, 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also, to possible prejudice in sentencing. Id. Unless a petitioner makes both ^showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[TJhere is no reason for a court deciding an ineffective assistance claim .•.. to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
In his brief, appellant initially argues that his attorney was ineffective because he failed to investigate -the full extent' of the effect that the drugs he had been prescribed could have on human behavior. He focuses particularly on Chan-tix and Cymbalta, two drugs with a “black box” warning of documented history of causing psychotic behavior in some patients, but he also contends that the other drugs he was taking had adverse psychological effects as well. He asserts that counsel should have looked beyond the warning label on the drugs to find evidence to establish that the drugs, and consuming the drugs in combination, were capable of producing psychosis.
At the evidentiary hearing, counsel testified that the effect of the drugs on appellant formed the “cornerstone” of the defense. Expert testimony was presented by defense witness |fiDr. Bob Gale, a forensic psychiatrist and neurologist, that, appellant was suffering from depression and fibromyalgia and that the drugs in question could produce psychosis. It was Dr. Gale’s conclusion that appellant had experienced a “brief psychotic disorder,” which Dr. Gale testified constituted a mental disorder and a mental defect. Dr. Gale further testified that he had reviewed the police and investigative reports, witness statements, appellant’s medical records, and the record of his prescription drugs. Dr. Gale also consulted with a doctor of pharmacy concerning the effects of appellant’s prescriptions, both individually and in combination, on a person like appellant who was experiencing depression and fi-bromyalgia. It was Dr. Gale’s opinion that appellant was unable, due to his delusional state, to conform his conduct to the requirements of the law. ' Dr. Gale testified at length as to the information on which he based his conclusion, including testimony on the stressors in appellant’s life, appellant’s chronic pain and depression, the neurological effect on the brain of the drugs appellant was taking, and the medical evidence fhat demonstrated the , dangers of the drugs. •
Another expert, who also evaluated appellant, testified that appellant suffered from depression but had the capacity to form the culpable mental state necessary to commit the offense charged and to engage in purposeful behavior. The expert concluded that appellant did not suffer from a mental disease or defect.
It was for the jury to assess the credibility of the expert witnesses and decide whom to 6believe. See Green v. State, 2013 Ark. 497, 430 S.W.3d 729 (citing Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)). The jury determines, not merely the credibility of witnesses, but the weight and value of their testimony. Jordan v, State, 2013 Ark. 469, 2013 WL 6046053 (per curiam) (citing Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam)). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Tryon, 371 Ark. 25, 263 S.W.3d 475.
Beyond pointing to copious examples of the adverse effects of the drugs on other people and asserting that counsel should have done more testing to determine the severity of his mental problems, appellant did not show that there was some specific information that further investigation into the drugs or testing could have revealed that could have been applied to the facts of his case. To warrant post-conviction relief on the ground that counsel was ineffective for failure to perform adequate investigation, a petitioner must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific information that would have been uncovered with further investigation could have changed the trial outcome. Green v. State, 2014 Ark. 284, 2014 WL 2814866 (per curiam); Bryant, 2013 Ark. 305, 429 S.W.3d 193. This court has held that general assertions, unsupported with facts, that counsel did not prepare for trial aggressively enough, do not provide a basis for a finding of ineffective assistance of counsel. Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam) (citing Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918). The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was | effective, and such statements and. allegations will not warrant granting a Rule 37.1 petition. Rowan v. State, 2014 Ark. 353, 438 S.W.3d 918 (per curiam).
The trial court found that counsel had provided the jury with sufficient information to make a decision on whether appellant suffered from a mental disease or defect and that counsel’s representation was within the range of reasonable professional judgment required of a defense attorney in a criminal proceeding. Appellant has not established that the trial court’s decision was clearly erroneous.
Appellant next argues that an attorney should have been appointed to represent him at the evidentiary hearing. We have held that, in order to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, appellant must make some substantial showing in his request for counsel that his petition included a meritorious claim. Chunestudy, 2014 Ark. 345, 438 S.W.3d 923 (citing Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam)); see also Viveros v. State, 372 Ark. 463, 277 S.W.3d 223 (2008) (per curiam). A review of the Rule 37.1 petition demonstrates that appellant did not make that showing. The claims raised by appellant were largely devoid of the factual support required for the trial court to find that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. While appellant contends that he was a person in “special need” of counsel, he does not argue in his brief that there was any specific issue that he was unable to raise to the court without the assistance of an attorney.
Appellant also cites Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) as authority |sfor his contention that counsel should have been appointed. Appellant’s reliance on Martinez is misplaced. The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s, failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. In Trevino v. Thaler, — U.S. — , 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the Court extended its holding in Martinez ,to cases in which a state’s procedural framework make it unlikely in a typical case that a defendant would have a meaningful opportunity to raise a claim of -ineffective assistance of trial counsel on direct appeal. Trevino clarified aspects of Martinez but it did not require states to provide counsel to every petitioner in a collateral attack on a judgment. Accordingly, neither the ruling in Martinez nor the ruling in Trevino dictated that the trial court was required to appoint counsel for appellant. See Chunestudy, 2014 Ark. 345, 438 S.W.3d 923. Postconviction matters, such as Rule 37.1 petitions, are considered civil in nature, and there is no absolute right to appointment of counsel. Walton v. State, 2012 Ark. 269, 2012 WL 2149762 (per curiam) (citing Noble v. State, 2011 Ark. 200, 2011 WL 1688318 (per curiam)). Nevertheless, if a petitioner makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we have held that the petitioner is entitled to have counsel appointed to represent him in a postconviction proceeding. See Walton, 2012 Ark. 269, 2012 WL 2149762. Appellant here did not make a substantial showing in his request for counsel that his petition included a meritorious claim; accordingly, |9the trial court did not err in declining to appoint counsel for the hearing. See id.
In his third claim, appellant asserts that the trial court erred in denying his request for a copy of the transcript of his trial.' The record reflects that the trial court at a preliminary hearing elected to stay its decision on the motion for transcript until an attorney whs appointed for appellant. On May 30, 2013, the court declined to appoint counsel, informing appellant that he would be required to retain counsel and resetting the date for the evi-dentiary hearing to August 8, 2013. At the August 8, 2013 hearing, appellant did not raise the issue of whether he was entitled to a copy of the trial transcript and, thus, the trial court did not rule on the request. As appellant did not obtain a ruling on his motion, the failure to obtain a ruling below bars a review of the issue on appeal. Rainer v. State, 2014 Ark. 306, 440 S.W.3d 315.
As his final issue on appeal, appellant argues that his attorney was ineffective for advising him against accepting an offer of a plea bargain by which he would have entered a plea of guilty and been sentenced -.to forty years’ imprisonment. Appellant conceded -at the Rule 37.1 hearing that he made the decision to forgo the plea offer, but he contends that he would have accepted the plea had counsel not “all but guaranteed” him that counsel could bring in :a verdict of guilty to a lesser offense than capital murder. At the hearing, counsel testified that he made a special trip to see appellant to discuss the offer and that he did not advise against accepting the plea because the State was seeking the death penalty. Counsel further testified that it was his practice to advise defendants accused of capital murder to accept an offer of a plea that would avoid the death penalty and that, while he may have discussed lesser-included offenses with appellant; he did not guarantee appellant that he could achieve a verdict of less than capital murder if | ^appellant went to trial. Counsel also recalled that appellant had-given him the understanding that he would not accept a plea of more than thirty years’ imprisonment because he was going to. die in prison anyway if he received a greater sentence.
In addition to appellant’s testimony that he would have accepted the plea if counsel had not told him that he would be convicted of first-degree or possibly second-degree murder, appellant produced an affidavit from his mother in which she averred that counsel had advised her son not to take the forty-year plea because counsel could “beat the capital charge and get it to a lesser charge, maybe as low as second degree.”
In rendering its decision declining to grant relief on the allegation concerning the plea offer, the trial court was not required to accept appellant’s allegation or the affidavit as- truthful. When there is conflict that presents an issue of credibility, it is trial court’s task as trier of fact to resolve it, and the court is free to believe all or part of any witness’s testimony. Hoyle v. State, 2011 Ark. 321, 388 S.W.3d 901 (per curiam). This -applies especially to the testimony of the petitioner in a Rule 37.1 proceeding, as the petitioner has the most interest in the outcome of the proceeding. Heard v. State, 2012 Ark. 67, 2012 WL 503884 (per curiam). Here, the trial court found counsel’s testimony concerning-the plea offer more credible; This court does not assess the credibility of witnesses on appeal, and we will not overturn the decision of the trial court in this matter as it was based on an assessment of credibility by the trier of fact. See Hoyle, 2011 Ark. 321, 388 S.W.3d 901; see also Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785.
After a review' of the record and appellant’s arguments, we find that the claims raised by appellant were largely devoid of the factual support required for the trial court to find that ^counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. When there is insufficient factual support for an allegation to demoíistrate a specific failure on the part of counsel, there is no showing of ineffective assistance of counsel under the Strickland standard. Caery, 2014 Ark. 247, 2014 WL 2158140. Appellant did not show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have.had a reasonable.doubt respecting guilt, i.e., the décision reached would have been different absent the errors. For that reason, we cannot say that the trial court erred in denying- relief under Rule 37.1.
Affirmed.
. The State notes in its brief that appellant in his brief has expanded the allegations raised in the Rule 37.1 petition and discussed at the evidentiary hearing by offering an anecdotal account of persons reported to have had suffered a psychotic episode while taking Chan-tix, one of the drugs he contends was responsible for his altered state of mind leading to the murder. While appellant argued at length in his Rule 37.1 petition that Chantix and other drugs could induce psychosis and gave examples of such occurrences, on appeal, he is limited to the specific arguments that he made below that were considered by the trial court in rendering its ruling. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). To the extent that any of the information offered in the brief was not before the trial court when it considered the petition, we will not consider new information or new arguments added to bolster the allegations made below. Id.; see also Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); Hogan v. State, 2013 Ark. 223 (per curiam). Likewise, issues raised below but not argued on appeal are considered abandoned, Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
. Counsel testified that he also engaged a second expert, a psychologist, to perform an evaluation on appellant but that person did not agree with the defense’s position and was not called to testify.
. The trial court initially appointed counsel for appellant but ultimately rescinded the order. | [
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RHONDA K. WOOD, Associate Justice
|, Appellant John David Moore (“David”) appeals a decree entered by the Logan County Circuit Court granting appellee Nancy Moore (“Nancy”) a divorce on the ground of general indignities. He argues that the circuit court erred in dividing the growth of his business as a marital asset, awarding Nancy alimony in the amount of $5,000 per month, and considering the division of property and alimony in isolation. We granted the parties’ joint petition for review of the court of appeals’ decision dismissing the appeal because the divorce decree was not a final, appealable order. We hold that the decree is a final order and reverse and remand as to the circuit court’s division of the growth of David’s business and the alimony award for an entry of an order consistent with our findings herein.
The parties, David Moore and Nancy Moore, were married on April 27, 2007. On June 18, 2012, Nancy filed for divorce. David answered and counterclaimed. The parties litigated the appropriate property distribution and alimony issues. Specifically, David ^requested an equal distribution of marital property. Nancy requested that the court also divide and award her half of the growth of David’s company, Moore U.S. Mail Contractor, Inc., which was a nonmarital business. She contended that the growth in value of the business was a marital asset to be divided between the- parties. David also contested the amount of alimony requested by Nancy.
On February 5, 2014, the circuit court entered a divorce decree. In it, the circuit court determined that David owned the company prior to the marriage, and therefore, it was nonmarital property. However, the circuit court found that the company’s increase in value was a marital asset because David spent a substantial amount of time during the marriage working to increase its value. The court also found that the company’s stock value increased as a result of Nancy’s participation in, and contributions to, the company. It concluded that the increase in the business’s value during the marriage was $556,365.05 and awarded Nancy one-half of that amount.
The circuit court also awarded Nancy $5,000 per month in alimony to be paid until she is sixty-five years old. The basis for this award was Nancy’s financial neéd and David’s income, as well as Nancy’s health, education, and prior work experience. Notably, in 2012, Nancy underwent surgery to remove a brain tumor. She and others testified that she had continuing medical complications as a result of the procedure, including short-term memory loss, weakness, difficulties with depth perception, and panic attacks. The circuit court noted that Nancy’s medical condition was the “most significant factor presented in support of her request.”
IsDavid appealed, arguing that the circuit court erred in awarding Nancy one-half of the growth of his business during the marriage and alimony of $5,000 per month until she is sixty-five years old. The court of appeals dismissed the appeal, finding that the divorce decree was not final for purposes of appeal, citing the following paragraph:
Plaintiffs Exhibits 37, 38, and 39 were three separate 'Warranty Deeds (legal description is attached as Exhibit “C”) which described a third tract of real estate .involved in, this case. Those deeds were from different grantors but did not convey all of those grantors’ interest in the same real estate to the Plaintiff and Defendant as tenants by the entirety. The court reduces the parties to tenants in common as to this tract of real estate and orders -the. same sold upon such terms and conditions as to which the. parties may agree. If the parties' are unable to agree upon the terms and conditions of sale after 180 days, then either party is free to petition to thé court to have the same sold by the clerk of this‘court. All proceeds after costs of sale shall be .divided equally between the parties.
Moore v. Moore, 2015 Ark. App. 115, at 1, 2015 WL 801993. The court of appeals noted that the decree directed the parties to come- to an agreement and, in the event that they could not reach an agreement, required them to return to the court for an order for the property to be sold by the clerk. Id. The court held that the decree was not final because it did not fully dispose of the parties’ property. Id. The court then dismissed the appeal without prejudice. Id. . The parties jointly filed a petition for review in this court, arguing that the court of appeals’ decision conflicted with prior holdings from this court, which we granted.'
I.Finality
The finality issue in this case is similar to that in Davis v. Davis, 2016 Ark. 64, 487 S.W.3d 803. For the same reasons recently expressed in Davis, we hold that the divorce decree is a final, appealable order. As in Davis, the decree in this case does not include language requiring, the parties to return to court for further judicial action. Rather, it allows for alternative methods of property distribution and gives the parties a specific period of time to work outjjtheir differences as well as an enforceable- judicial resolution if they are unable to reach an agreement within the time period set by' the court. As it adequately addresses every issue presented by the parties and reserves no issues for later determination, the order is final and appealable. Accordingly, we vacate the court of appeals’ opinion that the divorce decree is not a final, appealable order. Moreover, because this case involves a. significant issue concerning statutory construction and the overruling of precedent, which are the province of this court, we proceed to address the merits of the appeal.
II.Standard of Review
On appeal, divorce cases are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40S.W.3d 768.(2001). We review the circuit court’s findings pertaining to division of property and alimony and affirm them unless they are clearly erroneous or against the preponderance of evidence. Id.] Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Skokos, 344 Ark. at 425, 40 S.W.3d at 772. The appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. We give due deference to the circuit judge’s position to determine the credibility of witnesses and the weight given to their testimony. Id. | ^Furthermore, when we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Bohannon v. Robinson, 2014 Ark. 458, 447 SW.3d 585.
III.Property Division
For his first point on appeal, David claims that the trial court erred in finding that the increase in value of his business is a marital asset to be equally divided between the parties. David claims the circuit court wrongly interpreted the statute, and we review issues involving statutory interpretation de novo, as it is for this court to determine what a statute means. Dep’t of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006).
David contends that the growth of a his nonmarital business remained nonmarital property under Arkansas Code Annotated section 9 — 12—315(b)(5) (Repl. 2015) and is not subject to division. He recognizes that this court has carved out an exception to the statute, but contends it was inapplicable to the facts in this case. In support of the property division, the circuit court utilized the “active appreciation” analysis we adopted in Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987). . We do not assess whether the court correctly applied the “active appreciation” analysis to the facts because we find that this analysis directly conflicts with Arkansas Code Annotated section 9r-12-315. We find merit in David’s argument that the, growth of the business is nonmarital property according to section 9-12-315(b)(5). The circuit court relied on our precedent involving active appreciation when reaching its .decision, but our precedent conflicts with the statutory language.,
This issue, of property division deals squarely with the interpretation of section 9-12-315. The basic rule of statutory construction is to give effect to the intent of the legislature. Hose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W,3d 607 (2005). We construe the statute | rjust as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Where the language of a statute is plain and Unambiguous, we determine legislative intent from the meaning of the language used. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. However, when a statute is clear, it is given its plain meaning, and this court will not search for legislative intent. Rather, that intent must be gathered from the plain meaning of the language used. Id. “This court is very hesitant to , interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent,”. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002).
In a divorce action, statutory law requires that all marital property be divided equally to each party, unless the circuit court finds the. division to be inequitable, in which case, the circuit court may make a division that it deems equitable. Ark.Code Ann. § 9-12-315(a). Section 9-12-315(b)(5) defines marital property as “all property acquired by either spouse subsequent to the marriage except ... the increase in value of property acquired prior to marriage_” Thus, under section 9-12 — 315(b)(5) the increase in value of property during a marriage is nonmarital, without exception, and should be returned to the owning party.
In Layman, this court added a caveat to the legislature’s determination that “the increase in value of property acquired pri- or to the marriage” is a nonmarital asset. 292 Ark. at 542-43, 731 S.W.2d at 773-74. It reasoned that when the appreciation in the value of separate property during the marriage is the result of efforts of the spouse owning the |7nonmarital property, the appreciation is a marital asset. Id. The court concluded that “when one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmarital property, the presumption arises that such increases belong to the marital estate.” 292 Ark., at 543, 731 S.W.2d at 774 (emphasis added).
More recently, we applied this analysis in Farrell v. Farrell, 365 Ark. 465, 475-76, 231 S.W.3d 619, 626-27 (2006); see also Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008). In Farrell, the parties were married for approximately twenty years. Prior to the marriage, Mrs. Farrell acquired stock in ARC, Inc., and the stock value increased during the course of the marriage, in part, as a result of her time and efforts within the company. 365 Ark. at 475, 231 S.W.3d at 626-27. We held that, while the stock was a nonmarital asset under section 9-12-315(b) because Mrs. Farrell purchased it prior to the mar riage, the circuit court correctly concluded that the entire increase in the stock value was property of the marriage under the “active appreciation” analysis. Although the Farrell court determined that an unequal distribution was equitable based on the factors set forth in section 9-12-315(a), absent such a finding, the court could have divided the increase in value of the shares equally between the parties. Id.
Layman and its progeny clearly conflict with the statutory scheme. Our legislature, by enacting section 9-12-315, has defined marital property in ordinary terms and determined how property should be divided among spouses at the time of the divorce. This is a matter of policy with which the legislature, not this court, is almost exclusively tasked. See Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979); McNew v. McNew, 262 Art 567, 559 8S.W.2d 155 (1977). The public policy of this state is best evidenced by its statutes, and because the legislature has plainly detailed how property is to be divided, we should apply the statute as written. See Hatcher, 265 Ark. at 687, 580 S.W.2d at 477. Not only does the “active appreciation” analysis of Layman write an exception into the statute, it clearly conflicts with the statute’s plain language. Section 9 — 12—315(a) provides our courts with broad discretion and flexibility to redistribute marital and nonmarital property to achieve an equitable distribution. Our courts should work within the confines of the statute to accomplish this goal.
Additionally, some courts have confused the rule in Layman by weighing the efforts of the owning and nonowning spouse when determining whether nonmarital property should be reclassified as marital. See Davis v, Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). Indeed, in this case the circuit court considered Nancy’s contributions to the company, in addition to David’s, in concluding that the increase in value in the company was a marital asset. This was erroneous even under Layman. Accordingly, we find it appropriate to return to the statute’s plain language, which states that “the increase in the value of property acquired prior to marriage” is nonmarital. Accordingly, to the extent that Layman, Farrell, and Brown 'redefined marital property through the “active appreciation” rule, which conflicts with section 9-12-315, we expressly overrule them. Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987); Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006); Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008).
The dissents ai-gue that stare decisis compels the opposite result. The policy behind stare decisis is to lend predictability and stability in the law. . However, we will overrule | ^precedent “when there has been a palpable error in legal analysis.” Ward v. State, 2015 Ark. 62, 4, 455 S.W.3d 830, 833. Similarly, in In re Guardianship of W.L. this court overruled precedent for almost the same reason as in the present case. 2015 Ark. 289, 467 S.W.3d 129. The court there stated that it was overruling precedent in order to “return to the statute’s plain language.” Id. at 7, 467 S.W.3d at 133. The court explained that the judiciary had created tests that had moved the law “too far from the statute.” Id. Likewise, in this case, because the court has taken the statutory language and rewritten it to achieve a contrary result, we are compelled to serve justice by returning to the statute’s clear language. The legal analysis behind Layman and its progeny, regarding the judicially created “active appreciation doctrine” contains a palpable error, and it is patently wrong to the extent we now must overrule-it in order to return to the statute’s plain language.
In this case, it is undisputed that David’s interest- in his company, Moore U.S. Mail Contractor, Inc., was-acquired before his marriage to Nancy. Therefore, it is a nonmarital asset and the circuit court erred by considering it marital property and awarding Nancy. half of the growth of the business. See Ark.Code Ann. § 9-12-315(a)(2).
We recognize that our property-division statute permits the division of non-marital property if the circuit court deems it equitable after taking into consideration several factors, including the following: the length of the marriage; age, health, and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and |10the federal income tax consequences of the court’s division of property. Ark.Code Ann. § '9-12-315(a)(2). In such instances the circuit court must recite its basis and reasons for not returning the nonmarital property. Id.
Here, the circuit court did not make findings under section 9-12-315(a)(2) to justify a distribution of nonmarital property, Instead, the court considered it marital property. For- these reasons, we reverse and remand for the circuit court to enter an order awarding David the growth of his business as his nonmarital property absent a specific statutory finding to justify any distribution to Nancy.
IV. Alimony
David next argues that the circuit court erred in granting Nancy $5,000 per month in alimony until she reaches age sixty-five. The purpose of alimony is to rectify economic imbalance in the earning power .and standard of living of the parties to a divorce in light of the particular facts of each ease. Kuchmas v. Kuchmas, 368 Ark. 43, 45-46, 243 S.W.3d 270, 271-72 (2006). The primary factors that a court should consider in determining whether to award alimony.are the financial need of one spouse and the other spouse’s ability to pay. Id. The circuit court may also consider secondary factors, such as (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning, ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the | ^ condition of health and medical needs of both husband and wife; (11) the duration of the marriage; and (12) the amount of child support (if applicable). Id.
At the hearing on the divorce petition, Nancy testified to the nature and amount of her income, both current and anticipated. She stated she had graduated from high school-and attended one semester of college. -Prior to-her marriage to David, she worked as an administrative assistant at a bank and had'been offered a position as a loan officer shortly before she began working for David at his mail-delivery business. In 2012, she underwent surgery to remove a brain tumor. Following the surgery, she suffered from ongoing medical problems, which - prevented her from returning to work as an administrative assistant. Several witnesses testified as to their personal observations of Nancy following the surgery.
■ David argues that the alimony award is erroneous because Nancy offered no medical testimony regarding her prognosis and ability to return to the workforce in the future. Because the circuit court undertook the proper analysis after hearing the parties’ testimony and reviewing the evidence, we hold that the alimony award was not an abuse of discretion.
The circuit court concluded that David could afford a sum of $5,000 per month'and considered Nancy’s health’ and medical needs in addition to her education, prior work experience, and other financial needs. The court noted its observations of Nancy during the hearing, including an unanticipated event which caused her to appear to suffer from a panic attack. He found her medical issues to be legitimate. While it considered Nancy’s health to be the most significant factor presented, the court analyzed and weighed all the relevant factors. Despite the short length of the marriage and the exceptional amount of alimony awarded, the circuit court was in the best position to view the parties, and we | ^repeatedly have held that we will not reverse a finding by the' circuit eourt in an equity case unless it was clearly erroneous. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007); McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). Nevertheless, because we consider property division and alimony complementary devices that the circuit, court may utilize in combination to make the .dissolution of marriage equitable, we remand this issue to the .circuit court to reconsider alimony when it redistributes the parties’ property. See Boyles v, Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Davis, 79. Ark. App. at 185-86, 84 S.W.3d, at 451-52.
V. Property Division and Alimony
Finally, David asserts that the court considered the property division and award for spousal support in isolatioh, and as a result, issued an inequitable award. We cannot find any support in the record for this argument. In setting the amount of alimony, the circuit court fully considered the statutory factors, one of which is the distribution of assets. Appellant even acknowledged in his brief that the decree stated that alimony was determined after considering “the amount of assets [Nancy] is awarded herein.” We find no abuse of discretion.
Reversed and remanded; court of appeals’ opinion vacated.
Special Justices Chad L. Atwell and Daniel Greenberg join in this opinion.
Brill, C.J., Wynne, J., concur in part and dissent in part.
Brill, C.J., and Wynne, J,, dissent.
Danielson and Goodson, JJ., not participating.
. The dissents contend that this case like Kelly v. Kelly, which also addressed the issue of finality, should be remanded to the court of appeals for reconsideration on the merits. 2016 Ark. 72, 483 S.W.3d 296. However, unlike in Kelly, the circuit court in this case relied on a faulty judicially created doctrine when dividing the parties’ property. If this court remanded, the court of appeals would be required to apply that doctrine as precedent, and we would be addressing this issue when the case returned to us on review. This suggested approach does not further efficient administration of justice. | [
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Subsets and Splits
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