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JOSEPHINE LINKER HART, Justice
11 Hammerhead Contracting & Development, LLC, and Brandon Holmes (Hammerhead), appeal from the grant of summary judgment in favor of Dale Ladd. Ladd had sued Holmes to remove a “Laborer’s, Mechanic’s, or Materialman’s Lien” that Holmes had filed on behalf of his wholly owned limited-liability company (Hammerhead). Ladd had withheld payment of $101,676.82 that Hammerhead claimed it was owed. On appeal, Hammerhead argues that: (1) the circuit court erred in finding that the direct-sales exception to the residential-preconstruction notice requirement, codified at Arkansas Code Annotated section 18-44-115(a)(8), can never apply to a contractor — even though the plain language of the statute covers contractors; (2) the circuit court’s interpretation of Arkansas Code Annotated section 18-44-115(a)(4) that bars contractors from exercising their constitutional right to redress wrongs in a court of law; and (3) the owner of an LLC can file a lien on the LLC’s behalf. We accepted original appellate jurisdiction over this case in accordance with |2Arkansas Supreme Court Rule 1-2 because it involves construction of the Arkansas Constitution as well as an issue of first impression, an issue of substantial public interest, and statutory construction.
In January 2014, Ladd hired Hammerhead to build a house in Batesville, Arkansas. Under the agreement, Ladd agreed to pay $356,560. A further provision in the job estimate stated that “prices will not change unless upgrades are requested by the buyer.” It is not disputed that prior to beginning construction, Hammerhead did not provide Ladd with the statutory notice provided for in Arkansas Code Annotated section 18^4-115.
A dispute arose regarding the amount owed for the construction of Ladd’s home. According to Hammerhead’s records, Ladd paid more than $370,000 through August 2014, but Ladd contends that he paid more. As noted previously, Hammerhead asserted that Ladd owed an additional $101,676.82, and on September 23, 2014, Holmes filed a “Laborer’s, Mechanic’s, or Materialman’s Lien” for that amount on behalf of the LLC.
On October 2, 2014, Ladd filed suit against Holmes to remove the lien. On January 22, 2015, Hammerhead filed an amended complaint against Ladd seeking judgment for the $101,676.82. Ladd moved to dismiss, asserting that the failure to give statutory notice required by Arkansas Code Annotated section 18-44-115 (Repl. 2015) barred Hammerhead from pursuing his cause of action. Hammerhead responded to the motion to dismiss, continuing to assert that it was not required to give notice because it was a direct sale and additionally asserting that subsection (a)(4) in section 18-44-115 was unconstitutional. Hammerhead and Ladd moved for summary judgment. The cases were consolidated on May | <¡26,2015.
In his summary-judgment motion, Ladd asserted that Hammerhead had failed to give him the notice required by Arkansas Code Annotated section 18-44-115. Quoting section 18^4-115(a), Ladd argued that the plain wording of the statute barred Hammerhead from acquiring a lien on his home. The statute states in pertinent part,
(a)(1) No lien upon residential real estate containing four (4) or fewer units may be acquired by virtue of this sub-chapter unless the owner of the residential real estate, the owner’s authorized agent, or the owner’s registered agent has received, by personal delivery or by certified mail, a copy of the notice set out in this subsection.
(3) It shall be the duty of the residential contractor to give the owner, the owner’s authorized agent, or the owner’s registered agent the notice set out in this subsection on behalf of all potential lien claimants before the commencement of work.
(4) If a residential contractor fails to give the notice required under this subsection, then the residential contractor is barred from bringing an action either at law or in equity, including without limitation quantum meruit, to enforce any provision of a residential contract.
Ladd further argued that he anticipated that Hammerhead might assert that he was not required to give notice under the “direct sale”' exception found in section 18-44-115(a)(8)(A):
(8)(A) If the residential contractor supplies a performance and payment bond or if the transaction is a direct sale to the property owner, the notice requirement of this subsection shall not apply, and the lien rights arising under this subchapter shall not be conditioned on the delivery and execution of the notice. (B) A sale shall be a direct sale only if the owner orders materials or services from the lien claimant.
Even so, Ladd asserted that, given the statutory definition of “contractor” in Arkansas Code Annotated section 18-44-107(1); “‘contractor’ means any person who contracts orally or in writing directly with a person holding an interest in real estate, or such persqn’s agent, for the | ¿construction of any improvement to or repair of real estate,” there was no “conceivable” scenario in which any transaction between a homeowner and a contractor would not be a direct sale. According to Ladd, that construction of the statute would “lead to an absurd result” and defeat the “plain purpose” of the law, which required that contractors give customers notice of the potential for a lien to be filed. He claimed that under Hammerhead’s interpretation of the statute, section 18-44-115(a)(1) would be rendered “superfluous.”
Hammerhead opposed Ladd’s summary-judgment motion, asserting that there was a genuine- issue of material fact as to whether notice was required by section 18-44-115. Citing National Lumber Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987) and Duncan v. Davis & Earnest, Inc., 285 Ark. 143, 685 S.W.2d 509 (1985), it asserted that in determining whether notice was required, it is necessary to consider whether the materials and services were “charged to, shipped to, and received by” Ladd and whether the invoices and monthly statements were sent to .Ladd in determining if there was.a direct sale.
In deciding whether to grant summary judgment, the circuit court concluded that it had three issues before it: (1) whether a general contractor, who did not provide predelivery notice, as required by Arkansas Code Annotated section 18-44-115(a), is entitled to assert 'a materialman’s lien pursuant to Arkansas Code Annotates sections 18-44-101 et seq.; (2) whether a general contractor, who did not provide predelivery notice, is barred from bringing an,action'to enforce the terms of a residential contract; and (3) whether Arkansas Code Annotated section 18-44-115(a)(4)’s bar against suit by a contractor who failed to provide the statutory notice is unconstitutional.
hAt the summary-judgment hearing, Ladd conceded that his dealings with Hammerhead was a direct sale. Accordingly, there was a general agreement between the parties and the circuit court that was the factual predicate for the case. Nonetheless, Ladd asserted that the case had .to be resolved as a matter of law through the circuit court’s construction of section 18-44-115.
The circuit court found that “there exists no conceivable scenario in which, by definition, any transaction between a homeowner and contractor would not be a direct sale.” It rejected Hammerhead’s contention that it was exempted from the notice requirement because “it was this court’s duty to reject any interpretation of the statute that would lead to such absurdity or defeat the plain purpose of the law.” It further found that exempting Hammerhead from the notice requirement would render section 18-44-115(a)(l) “superfluous” because a general contractor would never be required to give notice as a condition precedent to obtaining a lien on the property. The circuit court concluded that the different provision of section 18-44-115 could be reconciled by finding that the direct-sales .exception applied only to subcontractors. The circuit court granted Ladd’s motion to dismiss Hammerhead’s complaint because it lacked standing to bring the action due to its failure to give the notice required by section 18-44-115. The circuit court also granted Ladd’s summary-judgment motion and ordered the lien canceled.. Finally, relying on Central Oklahoma Pipeline, Inc. v. Hawk Field Services, LLC, 2012 Ark. 157, 400 S.W.3d 701, the circuit court that found section 18^44-115(a)(4) is constitutional. Hammerhead timely.appealed.
|fiOn appeal, Hammerhead first argues that the circuit' court erred in finding that the direct-sales exception in Arkansas Code Annotated section 18-44-115(a)(8) to the residential preconstruction-notice requirement can never apply to a contractor — even though the plain language of the statute covers contractors. It asserts that the plain wording of the statute properly reflects the legislature’s intent when it drafted the statute. Further, the circuit court erred in finding that the direct-sales exception never covers contractors because it made the incorrect assumption that all contractors’ contracts fit the definition of a direct sale. We find merit to this argument.
. [2-4] Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave no disputed questions of material fact. Id. In our review, 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. We focus not only on the pleadings, but also on the affidavits and documents filed by the parties. Id. Moreover, we have held that, even when there is no material dispute as to the facts, on review, we will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate; if so, summary judgment is not appropriate. Id.
The question of the correct application and interpretation .of an Arkansas statute is a question of law, which this court decides de novo. Evans v. Hamby, 2011 Ark. 69, 378 S.W.3d 723. The purpose of the rules of statutory construction is to give effect to the intent of the legislature. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. The first rule of statutory construction is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning, Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Colvin, supra. Statutes relating to the same subject must be construed together and in harmony, if possible. Id.
As noted previously, the “direct sale” exception that is found in section 18-44-115(a)(8)(A). Subsection 115(a)(8)(B) defines a direct sale: “A sale shall be a direct sale only if the owner orders materials or services from the lien claimant.” Contrary to the findings of the circuit court, it is not “absurd” to construe section 18-44-115 just as written. Under the plain wording of the statute, to the extent that Ladd has ordered materials or services directly from Hammerhead, those transactions constitute direct sales, and Hammerhead is not required to give Ladd the statutory notice. In situations such as the case at bar, the homeowner is in direct privity of contract with the direct-sale contractor. There are no undisclosed suppliers or laborers. In Ladd’s dealings with Hammerhead, Ladd had to expect that Hammerhead would want to be paid for the labor and materials that it provided directly to Ladd. Whether the direct-sales exception encompasses every transaction between a general contractor and a homeowner, a premise that we do not accept, is of no moment. The plain wording of the statute is clear, and it is not the role of this court to rewrite the statute. We therefore reverse the circuit court’s grant of summary judgment and its order 18voiding the lien and remand for further proceedings consistent with this opinion.
Because we have reversed and remanded this case based on Hammerhead’s first point on appeal, we need not reach his second point in which he asserts that the circuit court’s interpretation of Arkansas Code Annotated section 18-44-115(a)(4) is unconstitutional because it violates a contractor’s right to seek redress in court for wrongs done to them. We also decline to address Hammerhead’s argument concerning the propriety of Holmes, as the owner of an LLC, filing a lien on the LLC’s behalf. This issue was not ruled on by the circuit court and therefore will not be addressed on appeal.
Reversed and remanded.
Goodson, Wood, and Wynne, JJ., dissent. | [
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COURTNEY HUDSON GOODSON, Associate Justice
hThis case is an appeal from the Sebastian County Circuit Court’s grant of summary judgment in favor of appellee David Hudson against appellant Ken Blevins on his complaint against Hudson for abuse of process and false light. Blevins raises ten points on appeal: (1) summary judgment was inappropriate while discovery was ongoing; (2) Hudson did not make a prima facie case for summary judgment; (3) factual issues existed as to Hudson’s motive, intent, and malice; (4) Hudson was not entitled to absolute immunity; (5) Hudson was not entitled to qualified immunity; (6) factual issues existed regarding whether Hudson’s conduct caused injury or damages; (7) Hudson’s actions violated constitutional and statutory boundaries; (8) Hudson denied Blevins substantive due process; (9) Hudson’s actions were ultra vires; and (10) the Association of Arkansas Counties also faces liability. Because Hudson is entitled to immunity on all of Blevins’s claims, we affirm the circuit court’s grant of summary judgment.
|2The record reflects that .Blevins was elected as Sebastian County Circuit Clerk and took office on January 1, 2011. At that time, Hudson served as the county judge for Sebastian County. ' In April 2011, several deputy clerks working for Blevins filed letters with Hudson alleging that Blevins was sexually harassing them and requesting grievance hearings, as authorized by the Sebastian County Employment Handbook. According to the handbook, Hudson, as the county judge, was responsible for appointing three members to the grievance committee to hear, the complaint. Accordingly, Hudson, appointed the committee, which held a hearing in May 2011. The committee ultimately issued a unanimous decision that Blevins had sexually harassed1 the' employees, and it ordered Blevins to issue a formal apology-
Thereafter,, in November 2011, Blevins sought to terminate two of the deputy clerks who had participated in the grievance hearing against him earlier ,in the year. The two deputy clerks filed grievance letters with Hudson, requesting a hearing. Hudson appointed three new members to the grievance committee, and following the hearing, the committee determined that Blevins had,, attempted to unlawfully retaliate against, the deputy clerks for their participation in the previous grievance hearing. Following the committee’s determination, Hudson entered an order making conclusions of law, incorporating the factual findings of the grievance committee, and requiring Blevins to continue the employment of the deputy clerks, but Blevins indicated that he would not do so. Subsequently, the six circuit judges of Sebastian County issued an order adopting Hudson’s order and mandating Blevins to comply. Blevins did not appeal this decision.
lain July 2013, Blevins filed the instant lawsuit against Hudson, alleging that Hudson abused the grievance process and that Hudson had made statements .regarding the grievance hearings that placed Blevins in a false light and contributed to his ultimate defeat in the next election. Blevins named Hudson in his official and individual capacities, as well as the Association of Arkansas Counties, as the liability insurer for Sebastian County.
Blevins filed a motion for summary judgment, arguing that the grievance proceedings amounted to an ultra vires assertion of power by Hudson, as an administrative county judge, over Blevins, an elected official of a judicial district in violation of Arkansas Code Annotated § 14-14-101 (Repl. 2013). Hudson and the Association of Arkansas Counties also filed a motion for summary judgment arguing that Hudson was entitled to absolute immunity because he was acting in his official capacity as county judge, as well as qualified immunity in his individual capacity. The motion also alleged that the Association of Arkansas Counties had no liability because Blevins did not allege an illegal county custom or policy. Finally, Hudson alleged that Blevins was barred from attacking the findings of the grievance committees because he did not appeal those findings, and that his claim for false light was barred by the one-year statute of limitations because over eighteen months had passed since Hudson made the alleged statements about the grievance proceedings. The circuit court granted the defendants’ motion for summary judgment, and Blevins filed this appeal.
A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Hotel Assocs., Inc. v. Rieves, Rubens & Mayton, 2014 Ark. 254, 435 S.W.3d 488. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Davis v. City of Blytheville, 2015 Ark. 482, 478 S.W.3d 214. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13. The burden is not on the moving party to demonstrate that every fact is undisputed, but to show that reasonable minds could not differ as to the conclusion to be drawn from them. Early v. Crockett, 2014 Ark. 278, 436 S.W.3d 141. Summary judgment is also appropriate when the circuit court finds that the allegations, taken as true, fail to state a cause of action. Sullins v. Cent. Ark. Water, 2015 Ark. 29, 454 S.W.3d 727.
The circuit court properly granted summary judgment to Hudson because he was entitled to immunity on all claims raised by Blevins. Blevins challenges three of Hudson’s activities: First, Hudson’s appointment of members to the grievance committees; second, his entry of the order directing Blevins to continue the employment of the deputy clerks; and third, Hudson’s statements to the public regarding the findings of the grievance committees. When a public officer is granted discretion and empowered to exercise his ■ independent judgment, like a judge, he becomes a quasi-judicial officer and may enjoy judicial immunity when he is acting within the scope of his authority. Chambers v. Stern, 338 Ark. 332, 994 S.W.2d 463 (1999). Judicial immunity is absolute immunity from suit. Hall v. Jones, 2015 Ark. 2, 453 S.W.3d 674. The rationale behind judicial immunity is to | ^maintain an independent and impartial judiciary. Chambers, supra. We have adopted the following factors for determining whether an action is judicial for purposes of judicial immunity: (a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private-damages ac tions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998) (citing Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985)).
We have held that an administrative law judge was entitled to judicial immunity where the undisputed facts showed that her job “required her to administer oaths to witnesses, rule on evidentiary matters, rule on objections,' and issue findings and conclusions of law in a final order.” Langdon, 333 Ark. at 669, 970 S.W.2d at 295. Similarly, in this case, Hudson is entitled to judicial immunity for any claims arising from the entry of the order against Blevins. Hudson’s order makes numerous conclusions of law regarding the jurisdiction of the county court over the matter and the power of the quorum court to control the employees of the circuit clerk. The order also incorporates the factual findings of the grievance committee, applies the applicable standards, and issues a directive for action. Finally, both Hudson’s order as well as the order entered by the circuit court judges of Sebastian County note that Hudson was acting in his judicial capacity in entering the order. Utilizing our criteria enumerated above, it is clear that there is a need for county judges to be free from harassment and intimidation, and insulated from political influence when they | fienter orders in a judicial capacity. Additionally, the hearing before the grievance committee was an adversarial process, and any error in that process could have been corrected through an appeal. Although the concurrence argues that Hudson is not entitled to judicial immunity because he did not actually preside over the hearing, this fact is ■immaterial because Blevins has challenged Hudson’s entry of the Order. As noted above, -the entry of the order was a quasi-judicial action because it required Hudson to make conclusions of law, incorporate findings of fact, and render a judgment in the matter.. Accordingly, Hudson was performing a quasi-judicial function when he entered the order requiring Blevins to retain the employees, and he is entitled to judicial immunity against claims arising from that action.
As to the remaining activities, Hudson is entitled to qualified immunity. Qualified immunity shields government officials from liability for civil damages when they are performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable pdrson would have known.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Immunity for county officials is set out in Arkansas Code Annotated section 21-9-301, which states,
It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
Ark.Code Ann. § 21-9-301(a) (Supp. 2015). We have held that this provision protects employees against suits in their official and individual capacities. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005). On the issue of qualified immunity, we have traditionally been guided by the analysis adopted by the Supreme Court for quali-fíéd-immunity claims in federal civil-rights actions. Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002). Thus, courts evaluating a claim of qualified immunity must determine whether the-plaintiff has alleged the deprivation of an actual constitutional right and, if so, whether that right was clearly established at the time of the alleged'violation. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). The issue of whether the official’s conduct violated clearly established constitutional rights is a-question of law that may be resolved by summary judgment. Id.
In this case, Blevins’s complaint wholly fails to plead facts to establish liability on Hudson in his individual or official capacity. First, although the heading of the complaint indicates that the suit is against Hudson individually, the factual recitations within the body of the complaint indicate that the suit is against Hudson only in his official capacity, statipg, “(A]ll actions of the Defendant, Hudson, were'committed in his official capacity as county judge of Sebastian County.” Thus, because the complaint fails to state a cause of action against Hudson individually, the circuit court properly granted summary judgment in favor of-him.
Second, as to Hudson officially, the complaint also fails to plead facts sufficient to establish liability. As noted above, qualified 'immunity shields government employees from liability when they are performing discretionary duties “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson, 526 U.S. at 609, 119 S.Ct. 1692. Here, Blevins’s complaint does not identify Ror plead facts sufficient to establish that-Hudson violated an established statutory or constitutional right. Rather, Blevins makes only conclusory factual and legal allegations, such as (1) that the employees filing sexual harassment complaints against Blevins “colluded with Defendant, Hudson, with the resolution of receiving a promise from [Blevins] to withdraw from running for the Sebastian County Circuit Clerk’s office in 2012, and to apologize for sexual harassment”; (2) that Hudson “selected judges for the [grievance] hearing in-violation of Arkansas Law”; (3) that Hudson “failed to take any action to enforce the rules according to his duties”; (4) that the grievance hearing “was an ultra vires assertion of authority of an administrative county judge over an elected official of a judicial district”; (5) that the grievance proceeding was used “to undermine public confidence in [Blevins] and to replace [Blevins] in his duly-elected position, either by recall or in an election”; and (6) that Hudson “gave publicity to a matter concerning [Blevins] including, but not limited. to, implying that [Blevins’s] decision to terminate certain employees violated, the Constitution and Laws of Arkansas and the United States.” These conclusory allegations are insufficient, as a matter of law, to establish the violation of a constitutional right necessary to impart liability on a government employee acting in his official capacity. See Key v. Curry, 2015 Ark. 392, 473 S.W.3d 1. Thus, the circuit court properly granted summary judgment against-Blevins, and we affirm its decision. , .
We likewise affirm the circuit court’s grant of summary judgment in favor of the Association of Arkansas Counties. In his complaint, Blevins pled no specific causes of action to establish liability on the Association but merely sought to impute any liability of Hudson |flto the- Association. Because Hudson is entitled to immunity on Blevins’s claims and because Blevins failed to establish any independent liability on the part of the Association, summary judgment was proper.
Affirmed.
Brill, C.J., and Danielson, J., concur. | [
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RAYMOND R; ABRAMSON, Judge
hOn appeal, Arnold Moody ' contends that the trial court erred in granting summary judgment in favor of appellees, Mary Tarvin, Jimmy Tarvin, Richard Christie, and Mary Tarvin and Jimmy Tarvin, d/b/a Tarvin Trailer Park (collectively “the Tar-vins”). We disagree and affirm.
On November 22, 2008, Arnold Moody and Richard Christie were involved in a physical altercation at the Tarvin Trailer Park in Lonsdale, Arkansas. Both men were tenants of the trailer park. On November 21, 2013, Moody filed a complaint for breach of contract in the Garland County Circuit Court, alleging that he had entered into a written landlord-tenant contract on September 18, 2008, with appellee Mary Tarvin and Jimmy Tarvin, d/b/a Tar-vin Trailer Park. In .his .complaint, Moody alleged that he sustained serious physical injuries caused by Richard D.. Christie, who worked as a maintenance person for the. Tarvins at the |2trailer park. Mary Tarvin was served with the complaint; Jimmy Tarvin is deceased. Richard Christie was never served. Moody contended ■ that the Tarvins had a duty to provide him with a safe living environment as a result., of their landlord-tenant relationship. Moody argues that the Tarvins knew or should have known of Christie’s alleged violent tendencies.
After discovery was completed, including the taking of.several witnesses’ depositions, the Tarvins moved for summary judgment on December 10, 2014. The Tarvins maintained that Moody’s claims were for assault and battery and/or negligence, both of which were time-barred when Moody filed his complaint. The Tar-vins further, argued that Moody could not avoid statute-of-limitations defenses simply by calling his claim one for brea'ch of contract rather than one for assault and battery and/or negligence. Moreover, the Tarvins argue that even if Moody’s claims were not barred by the statute of limitations, they would fail because the Tarvins owed no legal duty to protect Moody from criminal acts. Moody responded that his claim was one for breach of contract because the Tarvins’ duty to protect should be implied.
The trial court held a hearing on the motion for summary judgment on April 20, 2015. An order granting the motion for summary judgment was entered on April 22, 2015. Moody timely filed a notice of appeal, and the matter is now before this court.
Our standard of review for summary-judgment cases is well established. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). On appeal, 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 question of fact unanswered. Madden v. Mercedes-Benz USA, Inc., 2016 Ark.App. 45, 481 S.W.3d 455. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). 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. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003). We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in the trial court’s efficiency arsenal. Id; Once a moving party has established prima facie entitlement to summary'judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id.
On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the- moving party' in support of its motion leave a material question of fact unanswered. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002). Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id.
Here, the evidentiary items presented by the Tarvins do not leave material questions of fact unanswered. The trial court’s granting of summary judgment was appropriate because 14the gravamen of Moody’s claim is for assault and battery and/or negligence, not breach of contract. There is a one-year statute of limitations applicable to actions for assault and battery. See Ark.Code Ann. § 16-56-104(2)(A) (Repl. 2016). The' altercation between Moody and Christie occurred on November 22, 2008. Moody filed his complaint on November 21,2013 — four years after the statute had run. There is a three-year statute of limitations applicable to negligence and other claimed obligations riot expressed in writing. See Ark.Code Ann. § 16-66-105. That statute of limitations expired on November 22, 2011, two years before Moody filed his complaint. Because Moody’s claims were time-barred when he filed this action, the trial court correctly dismissed his complaint.
Moody asserts that his cause of action is not for assault and battery or negligence, but rather for breach of a written contract. There is k five-year statute of limitations for written obligations, duties, and rights, including breach-of-contract claims. See Ark.Code Ann. § 16-66-111, The' fact that Moody simply calls, his claim a breach-of-contract cause of action does not make it so. Nowhere in his complaint. does Moody show that this is a .breach of a specific promise.
In support of his theory, Moody attaches the “Rental Terms” for Tarvin Trailer Park to his complaint. This form, which is not specific to him, contains no promise, specific or general, on the part of the Tarvins to protect him from harm. Instead, it reflects what services are included with monthly rent, the amount of rent; an explanation of the deposit and how it is returned, the payment of utilities, trash pick-up information, reporting any trailer damage, the pet policy, and that the renter is responsible for normal' upkeep of the yard (while the landlord maintains mowing, weed eating, and pest control). ■ There is nothing in this form to |Rsupport Moody’s purported breach-of-contract claim. Further, there is some confusion 'as to whether Moody actually signed' the form. Mrs. Tarvin testified that she had been unable to locate a copy signed by either Moody or his wife, but she believed the Moodys signed the form at the time of rental. Assuming that the document was, in fact, signed, 4t still does not support Moody’s claim for breach of contract. Furthermore, it is the only documerit Moody has relied on as the. basis for his lawsuit.
The factual allegations of Moody’s complaint fail to support his claim for breach of contract. Instead, the complaint points to assault and battery, with Moody 'con tending that Christie assault[ed] and batter[ed] him.” Moody alleges that the Tar-vins employed Christie and “knew or should have known of Defendant Christie’s violent tendencies.” Moody also seeks damages for his alleged personal injuries — damages that ordinarily flow from an assault and battery or negligence claim. He asks the trial court to award him money. for his medical bills and pain and suffering, stemming from his personal injuries, not from a breach of a contract.
Moody argues that implicit in item six of the rental terms, which reads, “Any trailer damage (water leaks, broken appliances ...) should be reported to the landlords immediately for prompt repairs,” is a duty on the part of the Tarvins to protect him from criminal acts. He contends that because Christie worked for the Tarvins and would be making the repairs, the Tarvins somehow implied to Moody that they would protect him from criminal acts in the course of those repairs. This argument lacks merit. There is nothing in any of the terms — specifically item six — that has to do with criminal acts and a duty to protect. No duty on the part of the Tar-vins can be inferred from this language. Even if there had been a duty, Christie Lwas not making any repairs at the time of the altercation. Moody cannot avoid the certain effect of the statute of limitations for assault and battery and/or negligence by simply labeling his claim as one for breach of contract. See Tony Smith Trucking v. Woods & Woods, 75 Ark.App. 134, 137, 55 S.W.3d 327, 329 (2001).
The circuit court granted the motion for summary judgment from the bench, stating, “I appreciate your arguments, Mr. Standridge, but this is an assault and battery complaint. Could have come forward as a negligent hiring, or some negligence cause of action, but it’s not a breach of contract claim.” The trial court was correct. By the time Moody filed his complaint, the statute of limitations had expired. Accordingly, we affirm.
Affirmed.
Gruber and Vaught, JJ., agree.
. There is a line of cases which holds that in making the determination on the application of the statute of limitations, this court looks to the complaint itself, despite the fact that the trial court had actually granted summary judgment (see McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Goldsby v. Fairfey, 309 Ark. 380, 831 S.W.2d 142 (1992)). Here, the rental terms were attached to the complaint a.nd this case does not completely turn on a determination of whether the applicable statute had run, but rather what the correct cause of action was. | [
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PER CURIAM
|,In 2013, appellant Earl Delmar Pigg was found guilty of eleven counts of rape of a victim who was less than fourteen years of age and one count of interference with custody. Pigg received consecutive life sentences for all eleven counts of rape and an additional term of 120 months’ imprisonment, also to be served consecutively to the life sentences, for the interference charge. This court affirmed the judgment. Pigg v. State, 2014 Ark. 433, 444 S.W.3d 863. Pigg filed in the trial court a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015). Following an evi-dentiary hearing, the court denied relief, considering both the original petition and a supplemental petition, and Pigg brings this appeal. We affirm the order denying postconviction relief.
This court will not reverse a trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. A finding is clearly erroneous when, although there is evidence to support it, the appellate |acourt, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. Pigg alleges seven points for reversal.
In his first point on appeal, Pigg contends that the trial court failed to provide the findings of fact and conclusions of law required under Arkansas Rule of Criminal Procedure 37.3. When the trial court does not.summarily deny relief on a Rule 37.1 petition without a hearing under Rule 37.3(a), the court must determine the issues and make written findings of fact and conclusions of law with .respect to those issues. Ark. R.Crim. P. 37.3(c). This court- has consistently remanded when the trial court failed to enter any written findings following a hearing, and we'remand when the findings provided are riot adequate for our review. Magness v. State, 2015 Ark. 185, 461 S.W.3d 337 (per curiam).
When the trial court provides written findings on at least one, but less than all of the claims in the petition, however, the appellant has an obligation to obtain a ruling on any omitted issues to be considered on appeal. Id. Any claim on which the appellant failed to obtain a ruling is proeedurally • barred from our review. Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005). The trial court provided written findings. Although Pigg contends that the trial court’s findings on the issues were conclusory, as we discuss in turn below, the court’s findings are adequate for our review of those remaining issues that were addressed by the trial court and raised on appeal.
laThe other points raised in Pigg’s brief-in-chief address his claims of ineffective assistance of counsel. Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. Unless a petitionér makes both showings, the allegations do not meet the benchmark for assessing a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. A petitioner, in claiming deficiency, must show that counsel’s representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
A claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s alleged errors in order to meet the second prong of the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. In assessing prejudice, courts “must consider the totality of the evidence before the | judge or jury.” Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).
In his first claim of ineffective assistance, Pigg appears to concede that the trial court correctly determined counsel was not ineffective for failing to request a hearing for admission of evidence under the rape-shield statute. In its order denying relief, the trial court found that counsel had sought such a hearing, and, albeit unsuccessfully, sought to have the evidence admitted. ■ The record supports, that conclusion.
Pigg consolidates his arguments for his next two points on appeal. Both concern Pigg’s allegations that trial counsel failed to perform an adequate investigation into potential witness testimony or defenses. The trial court found that the witnesses that Pigg contended counsel should have investigated and called were identified to counsel only after trial had begun and that the witnesses’ testimony would have been inadmissible hearsay. The trial court further found that Pigg neyer identified another defense that counsel might have pursued. On appeal, Pigg contends that, contrary to the trial court’s findings, he demonstrated that counsel could have used these witnesses in support of a defense theory positing that .the victim had concocted the accusations against Pigg in retaliation for Pigg’s having caused charges to be brought against a youth minister who was convicted of a sex offense involving the victim. Although Pigg contends the trial court erred in failing to find counsel’s actions were not ineffective, we conclude that the trial court correctly found that Pigg did not demonstrate prejudice.
In reviewing an assertion of ineffective assistance of counsel based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would Rhave changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The burden is entirely on the claimant to provide facts that affirmatively support his claims' of prejudice. Id. Under the circumstances of this case, Pigg failed to meet this burden. He did not demonstrate that presenting 'the defense that- he contends counsel should have investigated and presented would have changed the outcome of the trial.
The evidence at Pigg’s trial included testimony from A.S. and her younger, sister, W.S., who were friends with Pigg’s daughter. . Á.S. testified that she had an ongoing sexual relationship with Pigg that began when she was eleven or twelve. A.S. testified that Pigg proposed marriage and gave her a ring on a trip to Fayetteville that she took with Pigg, Pigg’s daughter, and W.S. W.S. and Pigg’s daughter both testified to having witnessed the marriage 'proposal and to having previously witnessed oral sex between Pigg and A.S. W.S. testified that she had been digitally penetrated by Pigg. Pigg’s daughter’s mother, also described the relationship between Pigg and A.S., and, consistently with the girls’ testimony, she stated that she had noticed inappropriate behavior between the two that was indicative of a sexual relationship. She testified -that Pigg had demanded that she begin sleeping in a guest room so that A.S. could sleep with Pigg. ■
An investigating detective, Jonathan Wear, testified that A.S. was wearing a ring that she said Pigg- had given her, and the ring was introduced into evidence. Wear also testified that Pigg had fled on his motorcycle when Wear and another officer tried to arrest him, that Pigg crashed the motorcycle, and that a phone was confiscated at the crash scene. The phone had numerous pictures of A.S.,. texts with A.S., and a video of A.S. dancing that were all introduced into evidence.
|fiOne of the girls’ friends, testified that she had accompanied Pigg and A.S. on a trip to Branson, Missouri, where she observed A.S. holding hands with Pigg and A.S. dancing in the video. The friend testified that they had told A.S.’s grandmother, who was A.S.’s guardian, that they were going to visit an aunt of the friend because A.S. was not supposed to be with Pigg. They had taken a picture with - a stranger to aid in this deception. Her description of the trip was consistent with the other witnesses’ testimony.
In addition, there was expert testimony that A.S. had physical signs suggesting sexual abuse, and testimony from Pigg’s niece that Pigg had molested her when she was eight years old. As we noted in our opinion on direct appeal, the evidence of guilt at trial was overwhelming.
Pigg’s arguments — his assertion that he was prejudiced by counsel’s failure to present evidence that A.S. was motivated to lie because of her belief that Pigg had reported the youth minister to the police — fail because A.S.’s testimony was abundantly supported by independent evidence. As we previously determined, the evidence in this case was so overwhelming that no prejudice would have resulted from the failure to present evidence of A.S.’s motivation to lie or from a failure to use the theory of defense that Pigg contends would. have been successful. See Pigg, 2014 Ark. 433, at 3-5, 444 S.W.3d at 864-66. Moreover, trial counsel unsuccessfully sought to introduce additional evidence in support of this defense in a pretrial motion, but this court upheld the trial court’s ruling that the evidence was inadmissible under the rape-shield statute. Id. As a consequence, Pigg’s allegations failed to provide facts that affirmatively supported his claims of prejudice.
|7In his, next point on appeal, Pigg again appears to* concede the issues. Pigg takes the position that there was no.error in the. trial court’s findings-that Pigg did not support his claim of a conspiracy by trial counsel with the prosecution and police and that Pigg. failed .to, present any evidence at the hearing to substantiate the allegations. As the trial court noted, trial counsel testified that the allegations were not true. We defer to the fact-finder concerning the credibility of the witnesses. Young v. State, 2015 Ark. 65, 2015 WL 854754. Pigg did not demonstrate clear error on this point.
Next,, Pigg asserts that counsel was ineffective during the penalty phase of the trial for failing to have .admitted into evidence a medical record with a notation that Pigg had complained of erectile dysfunction. The trial court found that counsel had attempted to introduce the document but that a hearsay objection was sustained, that Pigg had testified that hé suffered from erectile dysfunction, and that Pigg had not been willing to discuss with counsel the use of any evidence, . for the penalty phase.
■ Pigg does not point to any argument counsel might have advanced in the penalty phase to overcome a hearsay objection. Where it is asserted that counsel was ineffective for failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. In addition, the trial court correctly determined that the medical report would have been cumulative to Pigg’s testimony.
IsThe record reflects that Pigg testified at trial that he suffered from erectile dysfunction. Although Pigg asserts the medical record would have bolstered this testimony, the document proffered in the record was contradicted by the witnesses’ testimony, just as Pigg’s statement that he was not capable of the alleged rapes was. The trial court was not clearly erroneous to conclude that Pigg failed to satisfy the prejudice prong of the Strickland test.
In Pigg’s last point on appeal, he alleges trial counsel was ineffective for failing to suppress evidence admitted under Rule of Evidence 404(b) and for failing to move for a mistrial. The trial court found that counsel had unsuccessfully challenged Rule 404(b) evidence. It also found that Pigg had testified that he asked counsel to move for a mistrial because he had witnessed Detective Wear speaking to a juror but that the detective testified' that no such encounter had occurred.
Pigg failed to demonstrate clear error. The trial court correctly found that Pigg did not identify any meritorious argument that counsel might have made to object to the Rule 404(b) evidence.or to move for a mistrial. While Pigg asserted that counsel should have filed a motion in limine to have the evidence excluded, he did not describe the motion he would have had counsel file with any further specificity. The record reflects that, as the trial court found, counsel did move unsuccessfully to exclude certain evidence, including the testimony by Pigg’s niece. Pigg does not point to any argument that counsel could have successfully employed to oppose admission of the evidence-under the pedophile exception, and he does not identify any other evidence that should have been included in the motion.
IsAt the Rule 37 hearing, the State countered Pigg’s claim that counsel could have presented a successful argument for mistrial with testimony from Detective Wear. The trial court was not clearly erroneous in finding that the detective was more credible that Pigg, and that the motion would have been unsuccessful if made.
The trial court was not clearly erroneous in finding that Pigg failed to meet his burden to identify specific acts or omissions that would overcome the presumption that counsel was. effective. Nor did Pigg carry his burden to provide factual substantiation for his claims of prejudice. Accordingly, we affirm the denial of post-conviction relief.
Affirmed.
. Pigg raises additional points and issues in his reply brief. We decline to address those issues. This court has repeatedly held that an argument cannot be raised for the first time in a reply brief. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).
. The objection to the report’s admission was made during Pigg’s testimony in the guilt phase. | [
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DAVID M. GLOVER, Judge
| í Sarah Gildehaus appeals from the order that dismissed her petition for judicial review of the Alcohol Beverage Control (ABC) Board’s transfer of a retail liquor permit and that, alternatively, affirmed the Board’s decision. She contends that the trial court erred in 1) dismissing her amended petition for lack of standing, 2) refusing to consider the entire record on appeal-, and 3) allowing the issuance of a retail liquor permit despite numerous violations of the law. We affirm. .
in its order dismissing Gildehaus’s' petition, ’the trial court set out the basic, and essentially undisputed, background facts. Michelle Jameson received conditional permit number 05132 for a retail liquor store to be located at 2800 West Hudson Road, Suite D, in Rogers, Arkansas. After reconsidering the potential financial burdens, Jameson contacted the ABC and asked about alternatives she might pursue. She learned about inactive status for a permit while she considered her future desires regarding the permit. She was told she Lcould submit an application for inactive status for her permit if she opened her business for one day, had a phone line and her business license, sold one bottle of liquor, and had an ABC agent come and approve her location. Jameson operated her business for one day and then applied with Christopher Moore to the ABC to transfer permit number 05132 from her to Moore. The ABC Director refused to approve the application on April 17, 2014. She appealed the transfer denial, and, following a hearing, the ABC Board unanimously reversed the Director and approved the transfer on September 17, 2014, (the “agency decision”).
On October 13, 2014, Gildehaus filed an original petition with the circuit court, seeking judicial review and a stay of the agency decisión. Orí December 18, 2014, she filed an amended petition. Paragraph three of her amended petition provides in pertinent part:
Further, this location is within three (3) miles of Gildehaus’ liquor store and is a competitor of Gildehaus. As a result, this has caused Gildehaus to suffer injury and is a basis for this litigation.
She offered no further testimony or evidence of injury at the hearing to expand upon paragraph three of her amended petition.
Gildehaus urged reversal of the agency decisionbased on the following summarized arguments: 1) Jameson did not have a valid permit to transfer to Moore because Jameson represented she had leased the property, when in fact she had only an option to lease the premises; no ABC agent ever inspected Jameson’s store prior to opening, she just complied with the ABC agent’s request that she send photos; Jameson'had no sales-tax permit and did not remit taxes to DFC; she received $4,000 from Moore to pay for her option to lease the premises; and 2) Moore was not legally qualified to receive transfer of the permit because |ahe had some interest in two permits; he made knowing misstatements of material facts regarding ownership of the business location; and he pro vided remuneration to another retail liquor permittee. • •
In its April 15, 2015 order, the trial court dismissed Gildehaus’s petition, concluding, ' sua sponte, she lacked standing under the Administrative Procedure Act: Relying upon Arkansas Alcoholic Beverage Control v. Mwncrief, 74 Ark. App. 221, 45 S.W.3d 438 (2001), the trial court reasoned it was without jurisdiction to hear her petition because she had failed to set forth specifically how she sustained injury or why she was in immediate danger of sustaining injury. The order. explained, alternatively, that even if Gildehaus had established standing for judicial review, there was substantial evidence to support the agency’s decision to allow the transfer of the permit. A majority of our six-judge panel hearing this appeal affirms the trial court’s dismissal based on Gildehaus’s failure, to establish sufficient injury'to invoke judicial review. Accordingly, we find no basis for addressing the. alternative ruling that affirms.the agency’s decision.
Ordinarily, an appeal from the circuit court regarding an agency decision requires our court to review the agency’s decision, not the trial1 court’s decision. Arkansas State Highway & Trans. Dep’t v. Ram Outdoor Advert., 2015 Ark. App. 713, 479 S.W.3d 51. Here, however, we review the trial court’s decision for error because the controlling basis for its decision was to dismiss Gildehaus’s petition for lack of jurisdiction because she failed to demonstrate specific, concrete, real, and . immediate injury from the agency’s action. The question of standing is a matter of law for this court to decide, and,.we review questions of law de novo. Arkansas Beverage Retailers Ass’n, Inc. v. Moore, 369 Ark. 498, 256 S.W.3d 488 (2007).
| Judicial review of an agency decision is governed by the Administrative Procedures Act. Arkansas Code Annotated section 25-15-212(a) (Repl. 2014) provides in pertinent part:
Administrative adjudication — Judicial review.
(a) In cases of adjudication, any person, ... who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action under this sub-chapter. Nothing in this section shall be construed to limit other means of review provided by law.
Opinions from both our court and the supreme court have explained that, under this statute, only persons who have a personal stake in the outcome of a controversy have standing to invoke the jurisdiction of the circuit court in order to seek judicial review of agency action; that the injury must be concrete, specific, real, and immediate, rather than conjectural .or hypothetical; and that the petitioner must demonstrate how he or she has already sustained or is immediately in danger of sustaining such injury as a consequence of the agency’s. action. See, e.g., Arkansas Beverage Retailers Ass’n, Inc., supra; Arkansas Alcoholic Beverage Control v. Muncrief, 74 Ark. App. 221, 45 S.W.3d 438 (2001); Estes v. Walters, 269 Ark. 891, 601 S.W.2d 252 (Ark.App.1980).
Here, the only basis for injury asserted by - Gildehaus was that Moore’s proposed liquor store would be located within three (3) miles of Gildehaus’s liquor store and would-be a competitor of-Gilde-haus. This allegation of injury was not further developed at the hearing, and neither has it been further explained on appeal. The gist of Gildehaus’s argument to us on this controlling issue is as .follows: the -trial court erred in dismissing her appeal for lack of standing because granting the permit to Moore violated several statutory l^and regulatory requirements and directly impacted her own business by allowing an additional neighboring permit-tee that did not exist before the transfer and location change in favor of Moore. She is clear in her allegations that the Board ignored statutory and regulatory violations by Jameson and Moore and that she believes she has been harmed by the agency’s decision to allow the transfer of the permit. However, our cases and those of the supreme court require more than mere assertions of injury — to be entitled to judicial review of an agency decision pursuant to Arkansas Code Annotated section 25-15-212(a), a petitioner must demonstrate injury that is concrete, specific, real, and immediate, rather than conjectural or hypothetical; and the petitioner must also demonstrate how he or she has already sustained or is immediately in danger’ of sustaining such injury as. a consequence of the'agency’s action. See, e.g., Arkansas Beverage Retailers Ass’n., Inc., supra; Arkansas Alcoholic Beverage Control v. Muncrief, supra; Estes, supra.
The “keys to the courthouse”'lie in Arkansas Code Annotated section 25-15-212(a). If a petitioner satisfies the injury requirement of this statute, then he or she qualifies for judicial review of agency action. If a petitioner does riot demonstrate specific, concrete,’ real, and immediate injury from the agency’s action, then he or she is not entitled to judicial review of agency actiori. We find no error with the trial court’s determination that Gildehaus’s assertions of injury are not sufficient to invoke the trial court’s jurisdiction to review the agency decision pursuant to Arkansas Code Annotated section 25-15-212(a). Moreover, though we are concerned with the sua sponte nature of the trial court’s dismissal, Gildehaus does not challenge the trial court’s decision on .that basis; consequently, we do not address it.
IfiAffirmed.
Kinard, Gruber, Whiteaker, JJ., agree!
Hoofinan, J., concurs.
Virden, J., dissents. | [
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KENNETH S. HIXSON, Judge
| Appellant Daniel Patrick appeals the entry of summary judgment against him in his lawsuit against appellees Tyson Foods, Inc. (“Tyson”), Woody L. Dos's, and Gregory 0. Clark. Appellant filed a complaint in the Circuit Court of Washington County, Arkansas, seeking damages for alleged malicious prosecution, defamation of character, and outrage. Appellant’s allegations arose from the following brief summary of the facts. Appellant was a long-time employee at Tyson’s Springdale, Arkansas, plant until he was terminated after a February 2012 ammonia leak inside the plant. An internal investigation led by Tyson’s security department investigators, Woody Doss and Gregory Clark, led Tyson to conclude that the ammonia leak was most likely caused by appellant and another employee . tampering |2with plant equipment. Upon request, Tyson provided its investigative materials to the Springdale Police Department. The investigative materials included a video of the work area where and when the ammonia leak occurred and the internal investigators’ interpretation of what appellant appeared to be doing on the video. The police forwarded the Tyson investigation materials to the Washington County prosecutor. The county prosecutor subsequently filed charges against appellant in April 2012 for second-degree criminal mischief and ten counts of third-degree battery committéd against other Tyson employees who were exposed to the ammonia gas. The prosecutor nolle prossed the charges four months later in August 2012.
Appellant filed his civil complaint in June 2014. The primary accusation in appellant’s complaint was that the Tyson in vestigators wrongly informed law enforcement that the video showed him behaving in a criminal fashion when, in reality, the video only showed that appellant was performing the routine tasks of his job. Ap-pellees subsequently filed a motion for summary judgment in December 2014, contending that appellant could not establish all the elements of the alleged torts, nor could he prove any damages proximately caused by the alleged torts. Ap-pellees attached affidavits, deposition testimony, the Tyson internal investigative video and report, and the Washington County criminal-charge documents. Appellant filed a response in opposition to summary judgment. The trial court determined that appellees were entitled to judgment as a matter of law and granted summary judgment. This appeal followed, and appellant contends that the trial court erred in dismissing his complaint. We disagree and affirm.
|SI. Standard of Review
The standard of review in the appeal of a summary judgment is well settled. 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 moving party is entitled to judgment as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268 S.W.3d 885 (2007). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. Conclusory allegations are, however, insufficient to create a fact issue in a summary-judgment situation. Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Greenlee v. J.B. Hunt Transport Serv’s., Inc., 2009 Ark. 506, 342 S.W.3d 274; Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473 S.W.3d 60. The object of summary judgment is not to try the issues but to determine whether there are any issues to be tried. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
|4II. Statement of Evidence and Facts
A more amplified recitation of the underlying facts is necessary prior to our consideration of the arguments on appeal. In the early morning of February 6, 2012, an ammonia leak at the Tyson plant resulted in the plant being evacuated. Several law enforcement officers, fire department personnel, and emergency services personnel were dispatched to the scene. Ten Tyson plant employees were taken to the hospital for treatment of inhalation injuries. A Springdale police officer, working in conjunction with an FBI Task Force, contacted Tyson because the Springdale fire department had concerns about whether the ammonia release could have possibly been a terroristic act. Doss, one of Tyson’s corporate security managers, responded to the Springdale police officer that Tyson was of the initial opinion that the event was caused by an accidental ammonia release. The police officer advised Doss to report to him if Tyson later determined that the leak was not accidental.
Tyson immediately commenced an internal investigation to determine the root cause of the ammonia release. The investigation revealed that pressure gauges indicated increased pressure in an ammonia refrigeration line shortly before the leak. It was determined that the ammonia release was caused by a partially open valve and a missing plug in, a pipe located on the vacuum side of the ammonia-based refrigeration system. The partially open valve and the missing plug ultimately allowed for the ammonia to be released into the plant.
Appellant’s work station was in the same area of the plant as the open valve and missing plug. The plant had previously installed ceiling-mounted security cameras. One of the security cameras covered appellant’s general work area and the valve. During the | ^investigation, Doss and other Tyson management personnel reviewed the video and observed a maintenance mechanic spending what they perceived as an unusual amount of time repetitively and unnecessarily adjusting and testing plant equipment near the ammonia line. The actual valve on the ammonia line was not quite visible on the video due to the location and sight line of the video camera. Another employee was observed walking behind the maintenance mechanic while carrying and opening a bottle, an item not permitted in this area of the plant. The maintenance mechanic was then observed moving toward the valve area, and the other employee was seen bending over the valve area. Tyson investigative personnel concluded that the maintenance mechanic was attempting to shield the other employee from view and acting as a lookout, while the other employee attempted to remove ammonia from the valve. The other employee subsequently appeared startled, stood up, and quickly walked away while putting the top back on the bottle. Tyson’s investigators opined that due to insufficient time, there was a failure to fully close the valve, which subsequently caused the leak. After additional investigation, Tyson identified the maintenance mechanic in the video as the appellant, Daniel Patrick.
As previously and specifically requested by the Springdale police officer, Doss reported to the Springdale police that the ammonia release no longer appeared to be accidental. In subsequent affidavits submitted with the, motion for summary judgment, Clark and Doss swore that an FBI agent and a Springdale police officer came to the plant to |fiview the security video. According to Doss’s affidavit, the police officer who viewed the videotape opined that this was an attempt to steal ammonia for the purpose of manufacturing drugs. Doss and Clark interviewed appellant and the other employee seen on the video, both of whom denied any wrongdoing.
Doss and -Clark subsequently prepared a special internal investigative report on this ammonia release, a typical practice for Tyson’s internal use. Doss and Clark relied on the information provided by the plant management in compiling the report. Neither Doss nor Clark knew either appellant or the other Tyson employee shown on the video prior to interviewing them. Each page of Doss and Clark’s report was marked “TYSON CONFIDENTIAL.”
A Springdale police detective contacted Doss and made a formal request for a copy of the internal investigative report and other material. Doss obtained approval from the Tyson in-house corporate counsel and delivered the investigative report to the Springdale police. A copy of the security video was contained in the delivered material.
Tyson subsequently terminated appellant from employment oh February 10, 2012, based on Tyson’s internal investigation. Neither Doss nor Clark was involved in the decision to terminate appellant.
On April 9, 2012, the prosecutor charged appellant in Washington County Circuit Court with criminal mischief and battery. The affidavit for the issuance of the arrest warrant was completed by Detective Eric Evans' of the Springdale Police Department and it was based, in part, on the material provided by Tyson.' Washington County Deputy Prosecuting Attorney Brian Lamb approved the detective’s affidavit, and District Judge Ray Reynolds ^signed the warrant finding that the affidavit demonstrated “reasonable and probable cause for the issuance of a warrant of arrest.” The criminal information was filed the same date, April 9, 2012. Four months later, on August 10, 2012, the deputy prosecutor moved to nolle prosequi the criminal charges, and the circuit judge approved the dismissal of charges.
Two years later, in June 2014, appellant filed his civil complaint. The complaint alleged that appellant had worked for Tyson for over twenty years, that the Tyson plarit had experienced multiple chemical releases over those years resulting in governmental action, and that Tyson intentionally blamed him for the ammonia leak in order to have a scapegoat by using falsified accounts of what the video revealed. Appellant recited seven particular characterizations of his behavior at work that he believed were false, given a review of the video itself. For example, appellant stated that the video did not show anyone with a container or opening- or closing one, nor did it show anyone bending over the valve or standing up quickly from the valve. Appellant accused Tyson of malicious prosecution based on the “false and outrageous report as to what the video showed,” which was made “with malice and without probable cause.” Appellant’s complaint ■ accused Tyson of defamation of character because Tyson maliciously and knowingly gave “false oral and written statements [that] were published broadly to superiors at Tyson Foods, Inc., to the Springdale Police Department, to prosecution officials, and to newspaper and television reporters and to the general public.” Appellant’s complaint also alleged the' tort of outrage based on the “false statements and misrepresentations, as well as the harsh personal treatment visited upon [appellant] by Doss and Clark.” He contended that Tyson’s behavior caused him damages, including costs incurred to defend against the criminal charges; loss of past |Rand future wages and benefits due to wrongful discharge; extreme emotional pain, anguish, distress, depression, embarrassment,, and humiliation; and damage to his reputation in the community. Each appellee filed separate answers, denying that their acts were anything other than appropriate internal investigations done in good faith and,stating that law enforcement independently sought Tyson’s information and determined that, criminal charges should be pursued. Each appellee responded that appellant was an at-will employee, that appellant, suffered no com-pensable damages, that they were entitled to the advice-of-eounsel defense, that they had a qualified privilege to communicate about the ammonia leak at the Tyson plant, that they acted without malice, and that their statements about appellant were truthful.
After the civil lawsuit was filed, discovery proceeded. In December 2014, appel-lees moved for summary judgment on all three causes of action. Appellees asserted that as to malicious prosecution, appellant failed to prove the essential elements of malicious prosecution and further, that they were entitled to the defense of advice of counsel. Appellees asserted that as to defamation, they possessed a qualified privilege to communicate to law enforcement officials regarding the release of ammonia gas at the plant. Appellees asserted that as to outrage, even if every allegation made by appellant were true, the allegations did not rise to the level necessary to sustain a lawsuit for the tort of outrage. Appellees presented supportive documentation, including multiple affidavits from Tyson management personnel, affidavits from Doss and Clark, termination paperwork related to appellant, portions of appellant’s deposition, the internal investigative report and video, and the filings related to the criminal charges. In resistance, appellant’s primary contention was Isthat Tyson personnel, including Doss and Clark, mischaracterized and falsely stated to law enforcement their interpretation of what the security video showed. Stated another way, appellant asserted that Tyson told law enforcement that appellant was engaged in suspicious and perhaps criminal activity when in reality appellant was merely doing his job. Appellant’s response was accompanied by his own affidavit in which appellant listed nine “misrepresentations of fact” that showed a variance between what Tyson’s investigative report recited and what he perceived the video actually showed. Notably, though, appellant attached the affidavit of the deputy prosecuting attorney. In that affidavit, the prosecuting attorney swore that he was provided Springdale police reports, Tyson’s special investigation report, and the security video and then witnessed the Springdale police detective sign the affidavit for the issuance of the arrest warrant.
In granting summary judgment on malicious prosecution, the trial court found that (1) appellees provided all the information collected during their investigation to law enforcement, entitling appellees to the defense of advice of counsel; (2) there was no evidence of malice; and (3) probable cause was found to exist. As to defamation, the trial judge found that appellees, as appellant’s employer, were entitled to a qualified privilege, that the publication was to law enforcement only, and that the disclosure was based on first-hand knowledge. The trial judge found that the communication was exercised in a reasonable manner and for a proper purpose and that appellant had not presented any evidence that the privilege was abused in any fashion or was based on falsehoods. As to outrage, the trial judge entered summary judgment on the basis that this narrowly construed tort was particularly limited in the context of at-will-employee discharge, and further that |inappellant presented no evidence of the outrageous conduct required at law. (The trial court also granted summary judgment on appellant’s wife’s claim of loss of consortium, a derivative claim not relevant on appeal.) We now examine each of the three torts allegedly committed by appellees and whether the trial court erred in granting summary judgment.
III. Analysis
A. Malicious Prosecution
To establish a claim for malicious prosecution, a plaintiff must prove five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of proba ble cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen, 355 Ark. at 142, 133 S.W.3d at 395. The failure of one element renders a malicious-prosecution case defunct. Jones v. McLemore, 2014 Ark.App. 147, 432 S.W.3d 668.
The trial court’s summary-judgment order recites that probable cause was found to exist. Probable cause for prosecution must be based on the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 163, 15 S.W.3d 320, 324 (2000). The test for determining probable cause is an objective one. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984). Ordinary caution is a standard of reasonableness. See McMullen v. McHughes Law Firm, 2015 Ark. 15, at 15-16, 454 S.W.3d 200, 210. In making a probable-cause determination in the context of a malicious-prosecution suit, the court generally “concentrates on the facts before the action commenced,” Sundeen, 355 Ark. at 145, 133 S.W.3d at 397; see also Coombs v. Hot Springs Village Prop. Owners Ass’n, 98 Ark.App. 226, 233, 254 S.W.3d 5, 11 (2007). Malice has been defined as any improper or sinister motive for instituting the suit. Sundeen, supra. Malice can be inferred from the lack of probable cause. Wal-Mart Stores, Inc. v. Williams, 71 Ark.App. 211, 29 S.W.3d 754 (2000). When, however, probable cause exists and there is no strong evidence of malice, a charge of malicious prosecution cannot succeed. Sundeen, supra.
The prosecutor charged appellant with second-degree criminal mischief pursuant to Arkansas Code Annotated section 5-38-204(a)(2). Subsection (a)(2) defines second-degree criminal mischief as being committed when a person “purposely tampers with any property of another person and by the tampering causes substantial inconvenience to the owner or another person.” See Coombs, supra (discussing probable cause for second-degree criminal mischief in the context of malicious-prosecution claim). The prosecutor also charged appellant with third-degree battery pursuant to Arkansas Code Annotated section 5-13-203(a)(2), which is committed when a person “recklessly causes physical injury to another person.” A person is “reckless” under our criminal code when he “consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.” Ark.Code Ann. § 5-2-202(3)(A).
On appeal, appellant contends that Tyson misrepresented appellant’s activities in the internal report provided to law enforcement, which fabricated the basis for finding probable cause and shows malice on Tyson’s part. Appellant does not challenge the existence of any particular element of the crimes for which he was charged. Appellant asserts only that the video does not manifest a reasonable basis on which to believe that he assisted in tampering 11gwith the ammonia valve that undisputedly caused physical injury. Appellant, however, concedes that there is “no contest as to the identity or accuracy of the video recording” or that it was provided to law enforcement prior to charges being filed. The affidavit of the deputy prosecutor attests that he was provided a copy of Tyson’s investigative report. The affidavits provided by Doss and Clark both swore that a Springdale police officer came to the Tyson plant and viewed the security video; this occurred prior to the preparation of the Tyson investigative report and tender of the l-eport and video to police. The police officer’s viewing the video at the plant was also confirmed by the affidavits of two safety managers employed at the Tyson plant. The police officer opined at the time he viewed the video that it showed criminal activity:
Appellant’s contention that the video and the investigative report can be inter-' preted differently does not mean that appellant showed evidence of a lack of probable cause. Appellees internally were of the opinion, mistakenly or not, that appellant was involved in a nonaccidental ammonia leak. Appellees did not seek out law enforcement but instead complied with law enforcement’s initiation of contact and requests for information. Appellees, .the Springdale police, and the prosecutor could reasonably have believed that appellant was involved with purposely tampering with plant equipment, which caused substantial inconvenience and physical injury and that the appellant recklessly caused physical injury to the ten Tyson employees who were treated for ammonia-gas inhalation. This satisfied the requirement of probable cause to believe that appellant committed the crimes for which he was charged. See Pourmehdi v. Nw. Nat’l Bank, 849 F.2d 1145 (8th Cir.1988) (summary judgment .proper, dismissing malicious-prosecution claim due to there being no genuine issue of material fact on the absence of probable cause).
Furthermore, appellant presented only conclusory allegations without any evidence or facts to support the existence of a genuine issue of material fact on the element of malice. Without meeting proof with proof-on the element of malice, appellant’s claim of malicious prosecution fails. Compare Sundeen, supra. Given the existence of probable cause and lack of evidence of malice, the trial court did not err in entering summary judgment on malicious prosecution in this case. Compare Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473 S.W.3d 60; McWilliams v. Schmidt, 76 Ark.App. 173, 61 S.W.3d 898 (2001).
We hasten to add that as to the first element of malicious prosecution, appellant failed to present any evidence that appellees “instituted or continued” the criminal proceedings. It is true that when the information given to-a prosecutor is known by the giver to be false, then an intelligent exercise of the prosecutor’s discretion becomes impossible, and a prosecution based on it is procured by the person giving the' false information. Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). Here, however, appellees provided all the information that they possessed, and appellees presented unrebutted evidence that they in good faith believed the information to be accurate. In contrast, appellant relied on mere accusations that the conclusions drawn from the information by the appel-lees were false. The police, the prosecutor, the trial court, and our court were all provided the admittedly accurate video to compare against appellees’ internal investigative report.. We cannot say that the trial court erred in drawing the only reasonable conclusion that there was a full, fair, truthful disclosure of all facts known to Tyson. This necessarily |14means that appellees did not “institute” the-criminal prosecution. See 52 Am.Jur.2d Malicious Prosecution § 23 (noting that to charge a private person with the responsibility for initiation of proceedings by a public official, it must appear that his desire to have the proceedings initiated was the determining factor in -the official’s decision to commence the prosecution or that the information acted upon was known to be false by the information provider, citing Pratt v. Kilborn Motors, Inc., 363 N.E.2d 452 (Ill.App.Ct.1977)).
• Even had appellant met proof with proof on all the elements of malicious prosecution, we would still affirm. Acting on the advice of counsel is a defense to a charge of malicious prosecution. Family Dollar Trucking, Inc. v. Huff, 2015, Ark.App. 574, 474 S.W.3d 100. In order to avail oneself of this defense, one must have made a full, fair, and truthful disclosure of all facts known to him and acted in good faith on counsel’s advice. Id. The proponent of the. defense bears the burden to establish it. by a preponderance of the evidence. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987). The rule that affords a defense to an action for malicious prosecution for one who has acted on the advice of counsel applies with greater force if' the proceeding was instituted on the advice and approval of the state’s prosecuting attorney. 52 Am.Jur.2d Malicious Prosecution § 107. If one in good faith fully and fairly discloses to an attorney or the prosecutor all the information he has and is advised that a crime was committed, then he has made out a complete defense to an action for malicious prosecution. Id. When one makes such a disclosure to the prosecutor and follows the prosecuting attorney’s advice, the law conclusively presumes the existence of probable cause, the lack of which is a necessary element in a suit for malicious prosecution. See Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931) 11fi(malicious prosecution reversed where, even though Burch-field accused Jennings’s officials of making untruthful accusations to its own attorney and the prosecutor, Jennings presented testimony that it merely provided what evidence it had to both attorneys).
Appellant argues in his brief that appel-lees should not be entitled to the defense because appellees did not provide a full, fair, and truthful account- of what appellant was observed doing on the video, contending that the police officer must not have viewed- the security video prior to seeking criminal charges. We disagree. The undisputed facts are that the prosecutor, not Tyson, filed and pursued legal proceedings against appellant after receiving all the information garnered by Tyson in its investigation. This information included the security video that — according to appellant — clearly and accurately sets forth appellant’s activities on the morning in question. Any perceived contradictions between the internal investigative report and the security video provided by Tyson at the request of law enforcement were for law enforcement to assess. Tyson presented affidavits swearing that a Spring-dale police officer-viewed the video himself prior to the report even being prepared and ultimately tendered to -law enforcement. In summary, we hold that the trial court did not err in entering summary judgment in favor of Tyson on malicious prosecution; Compare Sawada, supra.
B. Defamation
To recover for defamation, a plaintiff must prove six elements: (1) the defamatory nature of the statement of fact; (2) the statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault-in the publication; (5) the statement’s falsity; and (6) the damages suffered by the plaintiff. See Superior Fed. Bank v. Mackey, 84 Ark.App. 1, 129 S.W.3d 324 (2003). A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Addington v. Wal-Mart Stores, Inc., 81 Ark.App. 441, 105 S.W.3d 369 (2003). A plaintiff must prove that defamatory statements have been communicated to others and that the statements have detrimentally affected those relations. Lancaster v. Red Robin Int’l, Inc., 2011 Ark.App. 706, 386 S.W.3d 662.
The law recognizes that a potentially defamatory communication may not impose liability under the qualified-privilege doctrine. A statement may become privileged when made in good faith and in reference to a subject matter in which the communicator has an interest or duty and to a person having a corresponding interest or duty. See Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). For example, negligently reporting activity thought to be criminal is usually a privileged communication. See DeHart v. Wal-Mart Stores, Inc., 328 Ark. 579, 946 S.W.2d 647 (1997). But even if a statement may possibly be privileged, the speaker who steps outside the privilege, or abuses it, loses it. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). The qualified-privilege doctrine does not extend to published statements that have no relation to the protected interest, and it is lost if the publication is not made for the purpose of furthering a common interest. Id. The qualified privilege may also be lost if it is abused by excessive publication, if the statement is made with malice, or if the statement is made with a lack of grounds for belief in the truth of the statement. Superior Fed. Bank, supra.
Applying the law related to defamation to this appeal, we hold that the trial court did not err in entering summary judgment on behalf of appellees. Assuming arguen-do that l17all six elements of defamation were sufficiently supported by evidence in order to survive summary judgment, the trial court did not err in finding that Tyson was protected by the qualified privilege afforded-to an employer. Tyson responded to a request by law enforcement by delivering material that was created as a confidential internal corporate investigative report to determine the root cause of the ammonia leak. The response to law enforcement was factual, necessary, and not excessive. Appellees demonstrated a prima facie case of entitlement to this qualified privilege, and appellant failed to meet proof with proof to .demonstrate that there was any basis to bar appellees from the benefit of the qualified privilege. We affirm on this point.
C. Outrage
The tort of outrage — also known as intentional infliction of emotional distress — opens an actor up to civil liability for committing extreme and outrageous behavior. See McQuay v. Guntharp, 331 Ark. 466, 470, 963 S.W.2d 583, 585 (1998). Arkansas courts have consistently taken a narrow view in recognizing claims for the tort of outrage. Family Dollar Trucking, Inc., supra. Our supreme court has taken great care to point out that this tort does not make actionable every insult-or indignity one must endure in life. Dillard Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). This tort provides á basis for recovery only for conduct that is so outrageous .in character and so extreme in degree as to go beyond all possible bounds of decency, to be regarded as atrocious, and to be utterly intolerable in a civilized society. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). This tort is not easily established; merely describing conduct as outrageous does not make it so. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). This tort has four elements:
(1) the actor 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 actions of the defendant were the cause of the plaintiffs distress; and
(4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.
Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403-04 (2002). Notably, in Cordes, our supreme court held that allegations that the defendant caused the plaintiffs to be arrested, even if proven, did not rise to a level sufficient to support a claim for damages for the tort of outrage.
In his appellate brief, appellant recites the four elements of outrage as set forth in Faulkner, followed by this as his entire argument on this point:
We believe those elements have been met. Being falsely charged with crime alters the entirety of a person’s relationships, and creates huge stress. Here we had the mistreatment of the appellant upon original interview by these appel-lees. He lost his job and income and status because of it. ■
We are not persuaded by this conclusory argument. Merely describing conduct as outrageous does not make it so. Cordes, supra. We hold that appellant failed to provide any specific allegation, much less proof, to sustain that Tyson committed acts of “outrage” in investigating the plant’s ammonia leak and in complying with a request by law enforcement for results of that investigation. Compare Family Dollar Trucking, Inc., supra. We affirm the entry of summary judgment in favor of appellees on appellant’s claim of outrage.
Affirmed.
Gladwin, C.J., and Vaught, J., agree.
. Daniel’s wife Mary Patrick was also a plaintiff in this lawsuit. Mary’s claims in the lawsuit were dismissed at the trial court level and are not advanced as issues on appeal. Although Mary is listed as an appellant in the caption of this case, we need not and do not discuss Mary as a named appellant.
. The Tyson personnel included corporate counsel Chris Mitchell, plant safely manager David Smith, complex environmental health and safety manager Patrick Abshire, human resource director Hector Gonzalez, assistant plant manager Matt Evans, and refrigeration superintendent James L. Richardson. | [
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Per Curiam.
This is a death case. On February 22, 2000, appellant Roger Coulter filed a motion for belated appeal and for appointment of counsel for purposes of appealing the circuit court’s denial of relief under Arkansas Rule of Criminal Procedure 37.5. On March 30, 2000, the motion for belated appeal was granted, and Alvin Schay was appointed as counsel to represent Coulter. No prejudicial error was found, and this court affirmed the decision of the circuit court on November 30, 2000. The mandate was issued on December 19, 2000.
On October 1, 2001, a petition for writ of habeas corpus was filed in federal court. By order dated October 7, 2002, the federal district court appointed the federal public defender’s office to represent petitioner, “along with Alvin Schay and Craig Lambert, so that the resources of the Federal Public Defender Office can be utilized in this death habeas case.”
On September 10, 2003, the federal district judge granted Coulter’s motion to amend his habeas corpus petition to include a claim of mental retardation, and, on May 24, 2004, the judge found that claim was unexhausted in state court. Therefore, the retardation claim was dismissed in federal court and the remaining claims were stayed on condition that Coulter seek relief on the mental retardation claim in state court within 90 days, and that he return to federal court within 90 days of the full exhaustion of the retardation claim to pursue his exhausted claims.
Attorneys for Coulter (Schay, Lambert, and the federal public defender) filed a motion to reconsider the order and asked: “Can a federal court stay, or must it dismiss, a 28 U.S.C. 2254 petition for habeas corpus that includes exhausted and unexhausted claims when the stay is necessary to permit the petitioner to exhaust claims in state court without having his federal petition barred by the one-year statute of limitation in the Antiterrorism and Effective Death Penalty Act?” The federal court denied this motion on July 21, 2004.
A motion to recall mandate or alternatively for a writ of error comm nobis was filed in this court on August 17, 2004. The motion was filed by Craig Lambert and Alvin Schay as attorneys for Coulter. This court ordered that the motion be submitted as a case. On November 18, 2004, a motion to stay briefing schedule was granted, pending a decision by the Supreme Court in Engram v. State, Sup. Ct. No. CR 99-928. The Engram case was decided, the stay was lifted, and a briefing schedule was initiated in this court.
On July 26, 2005, the day before Coulter’s reply brief was due to be filed, Bruce Eddy, a federal public defender, filed a motion to hold proceedings in abeyance pending ascertainment of counsel and pending a decision in Hill v. State, CR00-1210, regarding federal public defender representation. On October 13, 2005, the Hill opinion was handed down, and this court ordered the federal public defender to comply with the opinion.
On November 1, 2005, the State moved and requested that a brief be filed by the federal public defender or by Schay and Lambert. On November 8, 2005, Bruce Eddy filed an application for permission to appear as counsel under Hill v. State, CR 00-1210 (October 13, 2005). Both the State and Craig Lambert responded, asking that this court deny the federal public defender permission to appear on behalf of petitioner.
In the instant case, Coulter’s attorneys of record are Lambert and Schay. These attorneys are familiar with the case and they are qualified to undertake the representation. They filed the motion to recall the mandate that resulted in this pending case, and they represented Coulter in federal habeas corpus proceedings for more than a year before a federal public defender was appointed. Under these circumstances, we see no reason to appoint additional counsel to represent Coulter, especially when existing counsel have not requested the FPD’s assistance and, indeed, one existing counsel opposes FPD representation. The motion of Federal Public Defender Bruce Eddy to appear as counsel on behalf of Coulter is denied. | [
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Per Curiam.
The Masters’ Report in this matter was filed with this court on October 3, 2005. Pursuant to Ark. R. Civ. P. 53(e)(2), the Intervenors and the State Defendants, and the Arkansas Chamber of Commerce, as amicus curiae, have served written comments and objections to the Report which we have received. Accordingly, we hereby take the matter under advisement, as noted in our per curiam of October 4, 2005. Should the parties wish to do so, they may file simultaneous briefs by Thursday, November 10, 2005. No reply briefs will be allowed. The briefs should only address any objection to the Masters’ Report already made and filed by a party. We will also receive requests by any party wishing to participate in oral arguments to be held Thursday, November 17, 2005. The amicus curiae will not be permitted to participate in oral argument.
Special Justice Carol Dalby joins.
Imber, J., not participating. | [
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Jim Gunter, Justice.
Appellant Anthony C. Malone appeals his conviction in the White County Circuit Court of one count of possession of cocaine with intent to deliver, for which he was sentenced to a term of forty years’ imprisonment and a fine of $25,000, and one count of possession of marijuana with intent to deliver, for which he was sentenced to a term of four years’ imprisonment, with the sentences to be served concurrently. Malone raises two issues on appeal. First, he argues that the circuit court erred in denying his motion to suppress, and, second, he claims that the evidence was insufficient to show that he was in possession of the contraband. We reject both of Malone’s arguments and affirm.
This case comes to us on the State’s petition for review of a decision of the court of appeals. See Malone v. State, 89 Ark. App. 281, 202 S.W.3d 540 (2005). The court of appeals determined that there was sufficient evidence of appellant’s knowledge of and control over the contraband to support his conviction. However, the court of appeals reversed the circuit court’s denial of Malone’s .motion to suppress and remanded the case. When this court grants review from a decision by the court of appeals, it reviews the case as though the appeal had originally been filed with this court. See, e.g., McElyea v. State, 360 Ark. 229, 200 S.W.3d 881 (2005). We affirm the order of the circuit court.
Malone was driving on Arkansas Highway 67/167 in Bald Knob at about 2:30 a.m., when he was pulled over by Officer Brandon Wilson of the Bald Knob Police Department for a broken taillight. It was cold and snowing. Officer Wilson testified at the suppression hearing that he ran a registration check on the Texas license plate before approaching the car, which indicated that the car was registered to a Texas resident, Eddie Carter. In addition to Malone, there was one male passenger and one female passenger in the car, neither of whom was Eddie Carter. Officer Wilson testified that, upon his request, Malone promptly provided his identification and proof of insurance on the car, but that the two passengers provided their identification only after Officer Wilson requested the information several more times. No one provided proof of ownership or registration of the car. The proof of insurance stated that the car was insured in the name of the male passenger, Anthony Richardson. After Officer Wilson received identification on all three occupants, he returned to his patrol car to run a check on them. The check revealed that there were no outstanding warrants. Officer Wilson then asked Malone to come back to his patrol car so that he could issue a warning citation for the defective taillight.
Officer Wilson testified that during the course of writing a warning ticket, he asked Malone where he was going. Malone said he was taking his niece to her aunt’s house. When Officer Wilson asked where she lived, Malone stated that she lived in Arkansas, although he did not know exactly where in Arkansas. Officer Wilson testified that Malone appeared nervous, was shaking uncontrollably, did not make eye contact with him, and answered his questions in a very quiet voice. When Officer Wilson was finished with the paperwork on the warning ticket, he requested permission to search the car. Malone said he did not feel it was right for him to give consent because it was not his car. Officer Wilson then testified that he requested permission from Richardson to search the car. Richardson refused to consent to a search, but he did state, “You might as well get your dog out.” Officer Wilson stated that he then got his drug dog from the back of his patrol car and walked him around Richardson’s car. The dog alerted, indicating that there were drugs in the trunk. Officer Wilson opened the trunk and immediately smelled a strong odor of marijuana. He then found a suitcase and several other bags in the trunk. The suitcase contained a little less than ten pounds of marijuana and two pounds of cocaine, with a combined street value in excess of $100,000. One of the other bags contained larger-sized male clothing, which appeared to be Richardson’s size, and the other bag contained smaller male clothing that appeared to be too small to fit Richardson.
We address Malone’s argument challenging the sufficiency of the evidence first in order to preserve his right to freedom from double jeopardy. See George v. State, 356 Ark. 345, 350, 151 S.W.3d 770, 772 (2004); Dodson v. State, 341 Ark. 41, 46, 14 S.W.3d 489, 492 (2000). Malone claims that the evidence presented at trial was insufficient to establish that he was in constructive possession of the drugs. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.
The question before us is whether there was substantial evidence to show that Malone was in constructive possession of the contraband found in the trunk of the car he was driving. To prove constructive possession, the State must establish that the defendant exercised “care, control, and management over the contraband.” McKenzie, 362 Ark. at 257, 208 S.W.3d at 173. While we have held that constructive possession may be implied when the contraband is in the joint control of the accused and another, joint occupancy of a car, standing alone, is not sufficient to establish possession. Jones v. State, 355 Ark. 630, 634, 144 S.W.3d 254, 256 (2004); Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). There must be some other factor linking the accused to the contraband. Id. In other words, there must be some evidence that the accused had knowledge of the presence of the contraband in the vehicle. Jones, supra. Other factors to be considered in cases involving vehicles occupied by more than one person are:
(1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest.
McKenzie, supra (citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994)).
In this case, in order to prove constructive possession, the State must show more than the fact that Malone occupied a car in which contraband was discovered. As the driver of the car, Malone exercised dominion and control over it and had keys to the trunk; the odor of marijuana in the trunk was strong, supporting an inference that anyone who opened the trunk would know that the trunk contained contraband. There was evidence supporting an inference that the male clothing found in one of the bags in the trunk was too small for Richardson and could reasonably have been found to belong to Malone. Finally, Officer Wilson testified that Malone, the driver of the car, did not know where he was going other than “somewhere in Arkansas,” and was nervous and shaking uncontrollably during the traffic stop, even though the stop was for a minor infraction. Viewing the evidence in the light most favorable to the State, as we must, we find that there was sufficient evidence of Malone’s knowledge of and control over the contraband to support his conviction. See Dodson, supra.
Malone next argues that the circuit court erred in denying his motion to suppress evidence obtained after the initial traffic stop was concluded. In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact 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, 511-12, 157 S.W.3d 530, 533 (2004).
In this case, there was nothing illegal about the initial traffic stop, which was based on a defective taillight. See, e.g., Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). We have held, however, that in order to conduct a canine sniff of a motorist’s vehicle after the legitimate purpose for the initial traffic stop has terminated, Rule 3.1 of the Arkansas Rules of Criminal Procedure requires the officer to possess reasonable suspicion that the person is committing, has committed, or is about to commit a felony or a misdemeanor involving danger to persons or property. Id. The officer must develop reasonable suspicion to detain before the legitimate purpose of the traffic stop has ended. Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005) (citing Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004)). Whether there is reasonable suspicion depends upon whether, under the totality of the circumstances, the police have “specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Id. (citing Laime v. State, 347 Ark. 142, 155, 60 S.W.3d 464, 473 (2001)).
The State first contends that the canine sniff occurred before the legitimate reason for the traffic stop was completed. Therefore, the State claims, the canine sniff was neither a Fourth Amendment violation nor a violation of Rule 3.1. See Sims, supra; Illinois v. Caballes, 543 U.S. 405 (2005) (holding canine sniff during traffic stop is not illegal search under Fourth Amendment). It is not clear from the testimony in this case exactly when Officer Wilson issued the warning citation. However, we hold that, even if the legitimate purpose of the traffic stop was complete before the canine sniff occurred, Officer Wilson possessed reasonable suspicion to detain Malone under Rule 3.1. See Ark. R. Crim. P. 3.1.
Our de novo review revealed the following facts supporting the State’s contention that Officer Wilson had reasonable suspicion to detain Malone. First, Officer Wilson testified at the suppression hearing that Malone said he was taking his niece to her aunt’s house, but when he asked where she lived, Malone stated that he did not know exactly, somewhere in Arkansas. This answer was evasive at best. Officer Wilson also testified that Malone was nervous, was shaking uncontrollably, did not make eye contact with him, and spoke in a very quiet voice. Finally, Officer Wilson’s registration check on the Texas license plate indicated that the car was owned by a Texas resident, Eddie Carter. However, Mr. Carter was not in the car; no one in the car could produce proof of ownership or registration of the car; the car was hundreds of miles away from the home of its listed owner traveling north; and there was no indication that Mr. Carter had given permission to any of the occupants to possess the car.
This court has recently decided several cases involving the existence of reasonable suspicion justifying the detention of a motorist after the termination of a legitimate traffic stop. In Lilley, supra, the police noticed that Lilley was nervous and shaking, despite the heat being on in his car and in the patrol car; that his rental-car agreement was for one-way travel, despite the fact that he planned to return to California after his visit with his mother in Virginia; that the rental was in another person’s name (although Lilley was listed as an alternate driver); and that the car smelled of air freshener. We held that these facts did not give the police reasonable suspicion to detain Lilley to conduct a canine sniff of his car after the traffic stop was concluded. Id.
However, in Burks, supra, we held that police did have reasonable suspicion to detain appellant and conduct a canine sniff after the traffic stop was concluded. The officer testified that Burks appeared anxious and evasive with his answers. A license check revealed that Burks had been arrested for a firearms offense. Finally, Burks was driving a rental car due to be returned the day before that was not to be driven outside of California and Arizona, which we found could have given the officer reason to suspect that the car was stolen. We stated that under the totality of the circumstances, these facts established “specific, particularized, and articulable reasons” that criminal activity was afoot. Id.
We find that the facts in this case bear more similarities to those present in Burks than those in Lilley. In this case, Officer Wilson testified that Malone was nervous, evasive, and shaking uncontrollably. He did not make eye contact and whispered his answers to Officer Malone. Finally, Malone was driving a car registered to a Texas resident who was not in the car, with no indication that he had permission from the owner to do so. Particularly coupled with the fact that Malone did not know where he was going, this could have given Officer Wilson reason to suspect that the car was stolen. After reviewing the totality of the circumstances, we conclude that Officer Wilson had specific, particular, and articulable reasons to extend the detention of Malone beyond the initial traffic stop. Therefore, we affirm the circuit court’s denial of Malone’s motion to suppress.
Affirmed.
Glaze and Imber, JJ., dissent. | [
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Betty C. Dickey, Justice.
Appellant Jason Virgil Burns challenges the circuit court’s dismissal of his claim against appellee, the Estate of Jerry Noel Cole, in which he claims to be the natural child and heir of the deceased. He argues that the circuit court erred in (1) refusing to determine that he commenced an action or asserted a claim within 180 days from the death of the decedent, as required by Ark. Code Ann. section 28-9-209(d); (2) determining that one of the six conditions under section 28-9-209(d)(1) through (d)(6) must be satisfied within the 180-day requirement; and (3) finding that the deceased did not make a written acknowledgment that he was the natural father of Bums pursuant to section 28-9-209(2). This appeal requires interpretation of our statutes; therefore, our jurisdiction in this case is pursuant to Ark. Sup. Ct. R. 1-2(b)(6) (Repl. 2005). We find no error and affirm.
Jerry Noel Cole died intestate on April 9, 2003, with his sisters, Barbara Matson and Judy Jameson, as his only known living heirs. On May 29, 2003, Ms. Matson and Ms. Jameson filed an affidavit for collection of the Cole estate. Later that day, Burns filed a Petition for Appointment of Administrator, stating that he was an interested party because he was the son of the decedent. The circuit court granted the petition, and Burns was named administrator of the estate. The circuit court later granted Burns’ motion in which he requested authorization for the Arkansas Crime Lab to release a portion of the decedent’s DNA to establish paternity. Burns subsequently received a DNA report, dated November 11, 2003, showing a 99.99% probability that the decedent was his natural father. Consequently, on April 26, 2004, Burns filed a motion seeking a judicial determination that he was the natural child of the decedent.
During a hearing on May 4, 2004, testimony revealed that Burns’ birth name was Jason Virgil Cole. A few months after his birth, his mother changed his last name to Burns, the name of her husband, Donald Burns, so that the child would be able to receive military benefits as his son. The couple later divorced, and while Donald never adopted Jason, the chancery court found him to be his father and ordered him to pay child support. Many years later, after Jason Burns had fathered a daughter, evidence was presented that the decedent had sent Burns’ mother a Christmas card stating that he wanted to have a relationship with his granddaughter. Burns argued that his Petition for Appointment of Administrator was an action commenced or claim asserted against the estate, and that it was filed within 180 days from the death of the decedent, as required by Ark. Code Ann. section 28-9-209(d). Additionally, he argued that the decedent acknowledged in writing that Burns was his natural child, pursuant to section 28-9-209 (d)(2), by sending the Christmas card to Burns’ mother.
The circuit court dismissed Burns’ claims against the estate and revoked its order appointing Burns as personal representative of the estate. The court explained that filing a petition to administer an estate within 180 days of decedent’s death could not be considered an action or claim against the estate pursuant to section 28-9-209 (d). Additionally, the court found that the card sent by the decedent to Burns’ mother was insufficient to establish written acknowledgment that Burns was the natural child of the decedent under section 28-9-209 (d)(2). Burns now appeals the circuit court’s dismissal.
This court reviews probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000); Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999). We are not bound by the circuit court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
The basic rule of statutory construction is to 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. In addition, 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).
At issue in this appeal is the language of Ark. Code Ann. section 28-9-209 (d). Burns first contends that the mere filing of his Petition for Appointment of Administrator on May 29, 2003, qualifies as an “action” or “claim” against the estate under section 28-9-209(d). We disagree. By filing the petition for appointment as administrator of the estate, Burns was claiming to be the acknowledged legitimate son and heir of the decedent. “Heir denotes a person entitled by the law of descent and distribution to the real and personal property of an intestate decedent, but does not include a surviving spouse[.]” Ark. Code Ann. § 28-1-102(10).
It is clear that at the time the petition was filed, Burns had not been legally declared the legitimate child of the decedent. Indeed, the decree from Burns’ mother’s divorce and his most recent birth certificate indicated that Donald Burns was his natural father. Bums even admitted to his illegitimate status when he filed a motion requesting that the circuit court declare him as the natural child of the decedent. Moreover, although he attached a DNA report to the motion, which showed a 99.99% probability that the decedent was his natural father, the motion was not filed until April 26, 2004, well beyond the 180-day requirement under Ark. Code Ann. section 28-9-209 (d).
In sum, we conclude that because Burns has never been determined a legitimate heir of the decedent, his petition for appointment as administrator of the estate cannot constitute an action or claim against the estate under Ark. Code Ann. section 28-9-209(d). It logically follows that because the petition was not an action or claim against the estate, Burns did not comply with the 180-day requirement under section 29-9-209 (d). For these reasons, the circuit court did not err in finding that Burns failed to comply with section 29-9-209(d).
The fact that Burns was not found to be a legitimate heir does not necessarily preclude him from inheriting from the estate. This leads us to Burns’ second point on appeal, that he was not required to satisfy one of the six conditions set out in Ark. Code Ann. section 28-9-209(d)(l) through (d)(6) within 180 days from the death of the decedent. Section 28-9-209(d) provides in pertinent part:
(d) ... The child may inherit real or personal property from his or her father or from his or her father’s blood kindred, provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man’s name appears with his written consent on the birth certificate as the father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid;
(6) The putative father is obligated to support the child under a written voluntary promise or by court order.
Ark. Code Ann. § 28-9-209(d)(l) - (6) (emphasis added). Bums submits that because the last five conditions require compliance prior to the father’s death, they are independent from the requirement that an action be commenced or a claim asserted against the estate within 180 days from the death of the decedent. Burns relies on In re Estate of F.C., 321 Ark. 191, 743 S.W.2d 800 (1995), and Boatman v. Dawkins, 294 Ark. 421, 900 S.W.2d 200 (1988); however, these cases do not advance his argument. He quotes language from our opinion, In re Estate of F.C., where we said:
Arkansas Code Ann. § 28-9-209 (1987) provides that an illegitimate child may inherit property from his father provided an action is commenced or claim asserted against the estate of the father within 180 days of the death of the father. However, one of the following conditions must also be satisfied[.]
321 Ark. at 193, 900 S.W.2d at 201 (emphasis omitted). Therefore, according to Burns, it is clear that this court allows compliance with the six conditions under section 28-9-209(d)(l) through (d)(6) after 180 days from the death of the father. Bums clearly ignores the plain reading of section 28-9-209(d), which, again, states that an illegitimate child may inherit from his or her father, “provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father [.]” (Emphasis added.) In the case of In re Estate of F.C., we simply reiterated the language in the statute.
In addition, Burns cites Boatman for the same reason. There, according to Burns, we emphasized the 180-day requirement but failed to mention that one of the six conditions must be satisfied within that time frame. In Boatman, the probate court found, and we affirmed, that the appellant was the illegitimate child of the deceased father, but that she could not inherit because she failed to assert her claim within 180 days from her father’s death. The conditions were not challenged. Instead, the issue was whether a statute requiring an illegitimate child to file a claim for her share of her father’s estate within a shorter period of time than would be required for a legitimate child to do the same thing violates equal protection. Ironically, Boatman undermines Burns’ position. In Boatman, we examined Ark. Code Ann. section 28-9-209 (d), and said, “The probate statute giving an illegitimate child 180 days to file a claim is a statute creating a new right, and the right is created only for the 180 days.” 294 Ark. at 424, 743 S.W.2d at 802 (emphasis added) (citing Modica v. Combs, 158 Ark. 149, 249 S.W. 567 (1923)).
We do not agree that either In re Estate of F.C., or Boatman, support Burns’ position. As in Boatman, we construe section 28-9-209 (d) strictly and conclude that the circuit court did not err in finding that one of the six conditions set out in section 28-9-209(d)(l) through (d)(6) was required to be satisfied within 180 days from the death of the decedent.
Finally, Burns maintains that the circuit court erred in finding that he failed to satisfy one of the six conditions enumerated in Ark. Code Ann. section 28-9-209(d)(l) through (d)(6). Specifically, he claims that he satisfied section 28-9-209(d)(2) by providing a Christmas card in which the decedent acknowledged in writing that Burns was his natural child by stating that he wanted to establish a relationship with Burns’ daughter. Because we have concluded that Burns failed to commence an action or assert a claim pursuant to Ark. Code Ann. section 28-9-209(d), this issue is irrelevant, and we decline to address the merits of his claim.
Affirmed. | [
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Per Curiam.
Appellant, Delarron Keith Washington, has filed a motion for rule on the clerk and a motion to supplement the record. Appellant filed both motions on October 25, 2005. We grant the petition and refer the matter to the Committee on Professional Conduct.
On February 25, 2005, a judgment, and commitment order was entered denying Washington of postconviction relief pursuant to Arkansas Rule of Criminal Procedure Rule 37. On March 10, 2005, Appellant filed a notice of appeal and designation of record with the Union County Circuit Clerk. Appellant filed a motion to be declared and indigent on March 15, 2005, so he could receive the record free of charge. On April 14, 2005, a motion for extension of time to file the record was filed and was granted by the court on May 3, 2005. The time for filing the record on appeal was extended until October 10, 2005. On May 6, 2005, an order denying Appellant to be declared an indigent was entered by the circuit court. A hearing on a petition requesting a declaration of indigency was held on May 12, 2005. This petition was also denied. An amended notice of appeal and designation of record was filed on May 18, 2005,'stating that Appellant had the financial arrangements to pay for the transcript he was requesting. A partial record was lodged with the Arkansas Supreme Court on October 7, 2005 and refused by the Clerk.
Appellant is requesting a motion for rule on the clerk because the court reporter transcript of evidence was not delivered to the court in a timely manner. Only a partial record was lodged with the Supreme Court Clerk on October 7, 2005, and was then refused. Appellant is also requesting to supplement the record based on the outcome of the motion for rule on the clerk.
This court recently clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There, we said:
. . . 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 filing 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. at 116, 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. Flow-ever, where a motion seeking relief from failure to perfect an appeal is filed and it is not plain from the motion, affidavits, and record whether there is attorney error, the clerk of this court will be ordered to accept the notice of appeal or record, and the appeal will proceed without delay. See id. At that time, the matter of attorney error will be remanded to the trial court to make findings of fact. See id. Upon receipt of the findings by this court, it will render a decision on attorney error. See id.
In this case, the transcript including the extension of time granted should have been filed on September 25, 2005, because that would have been seven months after the order was entered. Although in the order to extend time for filing, the court set a date at October 10, 2005, and it is the attorney’s responsibility to catch this mistake prior to the filing deadline. The attorney in this case failed to catch this mistake. Therefore, the clerk was proper in refusing the partial record on October 7, 2005. Flowever, this court will grant the motion for rule on the clerk and will refer the petitioner’s attorney to the Committee on Professional Conduct for evaluation.
Therefore, we grant the motion for rule on the clerk and the complete record should be filed with our clerk within thirty days from the date of this per curiam order. At that time, a briefing schedule will be set.
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Jim Hannah, Chief Justice.
Appellant, the City of Fort Smith, brings this appeal from the Crawford County Circuit Court’s award of attorney’s fees in an eminent domain action. The City argues that the circuit court misinterpreted and misapplied Rule 11 of the Arkansas Rules of Civil Procedure in awarding attorney’s fees. Appellees and cross-appellants, J.D. Carter, Mary Lois Carter, Lee. Hackler, and Patricia Hackler appeal the circuit court’s finding that Ark. Code Ann. § 18-15-605 (b) (Repl. 2003) does not entitle them to an award of attorney’s fees because the statute does not apply to municipal corporations. We reverse on direct appeal and reverse and remand on cross-appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1).
Facts
The Lake Fort Smith Expansion Project consists of Lake Shepherd Springs Dam and the construction of a larger dam on the current Lake Fort Smith to allow water to pool over both areas to create a large reservoir that will provide public water for communities in Sebastian and Crawford Counties. The City, a municipal corporation, filed an Application for Condemnation, seeking to acquire by eminent domain real property owned by the Carters.
In conjunction with its application, the City deposited the sum of $14,000 with the clerk of the circuit court as the estimated just compensation for the taking of the subject property. The circuit court subsequently entered an Order of Possession in favor of the City.
The parties appeared for trial on the morning of May 10, 2004, for the determination of the amount of just compensation due the Carters. Prior to commencement of trial, the parties began settlement negotiations while in the chambers of the circuit court. After an agreement was reached, counsel for each of the parties announced the terms of the agreement in open court. Counsel for the City informed the circuit court that the settlement agreement was contingent upon the approval of the City’s Board of Directors.
The Board subsequently voted to reject the terms of the settlement. The Hacklers then filed a Motion to Enforce Settlement Agreement, which the circuit court denied.
On June 22, 2004, a jury trial commenced on the issue of just compensation for the property. The jury affixed the amount due the Carters at $30,000. Following the trial, both the Carters and the Hacklers filed motions for an award of attorney’s fees, pursuant to Ark. Code Ann. § 18-15-605 (b). The circuit court denied the requests for attorney’s fees pursuant to the statute; however, the circuit court awarded partial attorney’s fees to the Carters and the Hacklers pursuant to Rule 11 of the Arkansas Rules of Civil Procedure, based upon the increased cost and delay that resulted from the Board’s rejection of the settlement.
The City filed an appeal of the circuit court’s order awarding attorney’s fees pursuant to Rule 11. The Carters and the Hacklers filed a cross-appeal of the circuit court’s denial of attorney’s fees pursuant to Ark. Code Ann. § 18-15-605 (b).
Appeal
The City argues that the circuit court erred in awarding attorney’s fees pursuant to Rule 11 of the Arkansas Rules of Civil Procedure. In its order awarding attorney’s fees, the circuit court made the following findings:
4. That counsel for the City of Fort Smith represented to the Carters and Hacklers and to the Court that they had authority to enter into the settlement agreement on the morning of the May 10, 2004, jury trial. The Court does not recall any prior case where a municipal corporation did not honor a settlement agreement made by its own attorneys.
5. That the Court finds that the City of Fort Smith’s rejection of the terms of a setdement agreement negotiated and entered into by its own attorneys unnecessarily caused a delay and increased expenses for both the Carters and Hacklers. That because the attorneys for the City of Fort Smith represented to the Court that they had authority to enter into the settlement agreement, when in fact they did not, the Court finds that Rule 11 of the Arkansas Rules of Civil Procedure was violated and hereby sanctions the Plaintiff, the City of Fort Smith, Arkansas, as follows: the City of Fort Smith, Arkansas, shall pay a partial attorney’s fee of Four Thousand Five Hundred and no/100 Dollars ($4,500.00) to the separate Defendant Carters and a partial fee of Two Thousand Five Hundred and no/100 Dollars ($2,500.00) to the separate Defendant Hacklers.
The City argues that sanctions imposed pursuant to Rule 11 are limited to those instances where a signed pleading, motion, or other paper has been presented to the court for an improper purpose, and that in this case, there was no finding that any of the pleadings filed by the City caused a delay in the litigation or increased costs to either party. Appellees conceded at oral argument that the sanctioned conduct was not based upon the filing of any pleading for an improper purpose. However, they argue that pursuant to Rule 11, the circuit court has the authority to assess penalties for oral representations made by counsel that cause delay or increase costs to the parties.
This court has not addressed the issue of whether Rule 11 sanctions may be imposed when the sanctioned conduct does not involve a pleading, motion, or other paper. We construe court rules using the same means and canons of construction used to interpret statutes. Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). The first rule in considering the meaning and effect of the statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. In other words, if the language of the statute is plain and unambiguous, the analysis need go no further. Id.
Rule 11 provides in pertinent part:
Signing of pleadings, motions, and other papers; sanctions.
(a) ... The signature of an attorney or p&rty constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
(Emphasis added.)
Rule 11(a) is “substantially identical” to Federal Rule 11, as amended in 1983. See Ark. R. Civ. P.11, Addition to Reporter’s Notes, 1986 Amendment. Based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of a significant precedential value. Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000). Federal courts have held that Rule 11, as amended in 1983, does not apply to oral representations or testimony made before the court. See, e.g., Business Guides, Inc. v. Chromatic Commc’ns Enter., Inc., 892 F.2d 802 (9th Cir. 1989); Schering Corp. v. Vitarine Pharm., Inc., 889 F.2d 490 (3rd Cir. 1989).
The plain language of Rule 11 provides that conduct is sanctionable when an attorney signs a pleading, motion, or other paper for an improper purpose. Here, the record reveals that the circuit court did not impose sanctions based upon the filing of a pleading for an improper purpose. Rather, the circuit court imposed sanctions based upon a finding that counsel for the City orally represented in court “that they had authority to enter into the settlement agreement, when in fact they did not... .” We hold that oral representations cannot be the basis for Rule 11 sanctions. Therefore, we reverse the circuit court’s award of attorney’s fees pursuant to Rule 11.
Cross-Appeal
Appellees argue that the circuit court improperly denied their motion for award of attorney’s fees pursuant to Ark. Code Ann. § 18-15-605(b). This court’s review of the circuit court’s denial of the appellees’ motion for attorney’s fees involves a matter of statutory interpretation. We review issues of statutory construction de novo because it is for this court to decide what a statute means. City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003). When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). 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. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, 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. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Section 18-15-605(b) provides:
In the case of application for orders of immediate possession by the corporation or water association, if the amount awarded by the jury exceeds the amount deposited by the corporation or water association in an amount which is more than twenty percent (20%) of the sum deposited, the landowner shall be entitled to recover the reasonable attorney’s fees and costs.
(Emphasis added.)
Appellees contend that they are entitled to attorney’s fees because the term “corporation” in § 18-15-605(b) refers to all corporations, including municipal corporations. They also point out that throughout Subchapter 6, multiple references are made to “a corporation” and “the corporation,” and such references are clearly a collective generic term applying to municipal corporations or any other corporation, including not-for-profit corporations and water associations that supply water. See, e.g., Ark. Code Ann. §§ 18-15-601 (a) and (b) (Repl. 2003).
The City contends that it proceeded under subchapter 4, making § 18-15-605 (b) inapplicable. Although the City argues that subchapter 6 does not apply, we note that subchapter 4, specifically § 18-15-401(c) (Repl. 2003), states that subchapter 4 is cumulative to any other laws granting municipal corporations rights of eminent domain. The dissent insists that “the only commonsensical reading of ‘cumulative’ is that the 1957 act (subchapter 4), which set up the new procedure, would be an alternative procedure to the 1895 act (subchapter six).” We disagree. Another interpretation of § 18-15-401 (c) is that the requirements of subchapter 4 include and are subject to the requirements of subchapter 6. Eminent-domain statutes are construed in favor of the landowner. Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001). Because there is more than one interpretation of the term “cumulative,” the statute should be construed in favor of the landowner in order to determine which interpretation should be used. Here, we construe the term “cu mulative” as it is used in § 18-15-401(c) to mean that subchapter 4 is subject to the requirements of subchapter 6, including the grant of attorney’s fees pursuant to § 18-15-605(b).
Still, the City argues that even if subchapter 6 is applicable, the plain language of § 18-15-605 (b) indicates that the attorney’s fees and costs provision applies only to corporations and water associations, and that the provision does not apply to municipal corporations. In light of the varying uses of the word “corporation” in subchapter 6, we cannot agree with the City’s contention that it is clear from the plain language of the statute that the General Assembly did not intend for the attorney’s fees and costs provision to apply to municipal corporations. The statute is ambiguous; therefore, we must look to legislative intent.
The right of municipalities to exercise the right of eminent domain in operation of waterworks and associated operations is granted in subchapters 3, 4, and 6 of title 18, chapter 15 of the Arkansas Code. The redundancy of three separate grants of what appears to be the same power in and of itself gives rise to uncertainty and confusion. In viewing the legislative history of subchapter 6, we note that the term “municipal corporations” has appeared in the opening paragraph of the first section of this statute since it was enacted in 1895. See Acts 1895, No. 126, § 1. Subchapter 3, which also grants a right of eminent domain, was enacted in 1875. See Acts 1875, No.l, § 74. Subchapter 4, which, again, grants a right of eminent domain, was enacted in 1957. See Acts 1957, No. 269, § 2.
It is not possible by reading the statutes or by looking to the acts to determine whether § 18 — 15—605 (b), as amended by Act 1207 in 1995, was to be limited to non-municipal corporations. It appears that this patchwork of statutes on eminent domain and waterworks resulted from various enactments and amendments made in response to differing needs that arose over the years and to various federal programs.
We note once again that eminent-domain statutes are construed in favor of the landowner. See, e.g., Pfeifer, supra. In light of this and the uncertainty in the statutes, we hold that the circuit court erred in finding that § 18 — 15—605(b) was not applicable. The General Assembly may wish to address and clarify the statutes on eminent domain as exercised by municipalities and others with respect to water projects.
We hereby reverse and remand this case to the circuit court to determine the amount of attorney’s fees due the Carters pursuant to § 18-15-605 (b). At this time, we are unable to determine whether attorney’s fees should be awarded to the Hacklers pursuant to § 18-15-605 (b) because the circuit court made no finding as to whether the Hacklers, as holders of a mortgage on the property, are landowners for the purposes of the statute. On remand, the circuit court shall determine whether the Hacklers are entitled to attorney’s fees pursuant to the statute.
Reversed on direct appeal; reversed and remanded on cross-appeal.
Brown, J., dissents.
The Hacklers sold the subject twenty-acre tract of real property to the Carters for the sum of $60,000 on April 12,2001. On that same date, the Hacklers took back a mortgage from the Carters to secure the remaining balance due to them of $49,425.
In 1993, the federal rule was amended to permit sanctions based upon the “presenting” of a paper — rather than limiting sanctions to those papers that bear an attorney’s signature — and defining “presenting” broadly as “signing, filing, submitting, or later advocating.” The Advisory Committee explained that the rule applies only to assertions contained in papers filed with or submitted to the court. Thus, to be sanctionable under the rule as amended in 1993, an oral representation must meet two requirements: “(1) it must violate the certification requirement of Rule 11(b), e.g., by advocating baseless allegations, and (2) it must relate directly to a matter addressed in the underlying paper and be in furtherance of that matter to constitute advocating within the meaning of subsection (b).” O’Brien v. Alexander, 101 F.3d 1479, 1490 (2d Cir. 1996). The Arkansas rule has not been amended to reflect the 1993 federal amendment and continues to apply to signed pleadings, motions, and other papers.
Black’s Law Dictionary does not define “cumulative” as a single term, instead defining it in conjunction with other terms. For example, “cumulative remedy” is defined as “a remedy available to a party in addition to another remedy that still remains in force.” Black’s Law Dictionary 1320 (8th ed. 2004). “Cumulative” is defined in Webster’s Third New International Dictionary as “increasing in size or strength by successive additions without corresponding loss.” Id. at 553 (2002). “Cumulate,” as defined by The American Heritage Dictionary of the English Language means “to combine into one unit, merge.” Id. at 443 (4th ed. 2000). Suffice it to say that the term “cumulative” is subject to more than one reasonable interpretation.
Appellees cite this court to City of Ozark v. Nichols, 56 Ark. App. 85, 937 S.W.2d 686 (1997), where the court of appeals affirmed the trial court’s award of attorney’s fees in accordance with § 18-15-605(b). In that case, the City of Ozark sought to condemn certain real property located in Franklin County for purposes related to its role as a regional water supplier. After a jury trial on the issue of compensation, appellees were awarded $28,500 for the property. Appellees then requested, and were awarded, attorney’s fees pursuant to § 18-15-605(b). The City appealed, arguing that § 18-15-605(b) was not in effect at the time the order of possession was entered. The court of appeals held that the amended statute, which made provisions for attorney’s fees in certain situations, was procedural in nature, and therefore applied retroactively.
Appellees state that Nichols makes clear that the statute governs damages for all water companies, including municipal corporations, because the court of appeals did not limit the statute to any particular type of water company. The City argues that Nichols does not answer the question of whether the statute applies to municipal corporations; rather, the court was asked only to determine whether the statute could be applied retroactively The issue that is before this court now — whether § 18-15-605(b) applies to municipal corporations — was not before the court of appeals in Nichols; therefore, we cannot say that Nichols is on point. On the other hand, the General Assembly is presumed to be familiar with the appellate courts’ interpretation of a statute, and if it disagrees, it can amend the statute. See, e.g., Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). Without such amendments, however, the appellate courts’ interpretation of the statute remains the law. See, e.g., Fordyce Concrete v. Garth, 84 Ark. App. 256, 139 S.W.3d 154 (2003). In Nichols, the court of appeals’ interpretation of the statute affirmed the award of attorney’s fees, pursuant to § 18-15-605(b), and those attorney’s fees were assessed against a municipal corporation, the City of Ozark. | [
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Annabelle Clinton Imber, Justice.
On October 5,1991, Appellant Andrew Low was attending a Fall Camporee with the Quapaw Area Council Boy Scouts of America (the Boy Scouts) when he fell approximately thirty feet from a bluff located adjacent to the campsite area. As a result of the fall, Andrew suffered severe lacerations, a fractured skull, compression fractures of his spine, cracked ribs, a collapsed lung, neurological, ophthalmological, and glandular damage, and various other physical injuries. On October 4, 1994, Andrew and his parents, Appellants Gary and Merrily Low, sued the Boy Scouts. The Boy Scouts moved for summary judgment, arguing that it was a charitable organization and immune from tort liability. This motion was granted at a hearing on February 2, 1999, and an order was entered on March 25, 1999.
Prior to the entry of summary judgment in favor of the Boy Scouts, Appellants propounded interrogatories and discovery requests on August 5, 1998, aimed at discovering any insurance coverage the Boy Scouts might have. Appellants then filed an amended and substituted complaint on March 23, 1999, for the sole purpose of naming the Boy Scouts’ liability insurance carrier, Insurance Company of North America (INA), pursuant to the direct-action statute, Ark. Code Ann. § 23-79-210 (Repl. 2004). Appellants alleged that INA was directly liable for Andrew’s injuries as a result of the Boy Scouts’ negligence, to the extent of its coverage under the policy. On July 19, 2000, the circuit court dismissed the claims of Andrew’s parents because their claims were filed after the statute of limitations had expired. Andrew’s claims survived dismissal because he did not reach the age of majority until March 2, 1997, and had three years to bring the suit under Ark. Code Ann. § 16-56-116(a) (Supp. 2005).
On July 24, 2001, Appellants named the following excess-liability insurance carriers as additional defendants: International Insurance Company (International), Industrial Indemnity Company (Industrial), Lexington Insurance Company (Lexington), Niagara Fire Insurance Company (Niagara), Planet Insurance Company (Planet), Federal Insurance Company (Federal), National Surety Insurance Company (National), and Gulf Insurance Company (Gulf). Planet, Federal, National, and Gulf were eventually dismissed from the suit.
On August 5, 2004, INA, International, and Industrial filed a motion to dismiss, arguing that, pursuant to this court’s decisions in Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 74 (2002), and Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004) , the Boy Scouts were never immune from suit and thus a direct action against the insurers was not proper. Shortly thereafter, Niagara and Lexington filed similar motions. On October 25, 2004, the circuit court entered a final order dismissing all the remaining insurers with prejudice. Appellants now appeal the final dismissal order. This case was certified to our court by the Arkansas Court of Appeals as a case involving issues of statutory interpretation and overruling of precedent. Ark. Sup. Ct. R. 1-2(b)(5), (6) (2005) .
For their primary point on appeal, Appellants request that we overrule our decision in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004). As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. Scamardo v. Jaggers, supra; Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). Indeed, it is well settled that “precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Scamardo v. Jaggers, supra (citing State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997)). Our test is whether adherence to the rule would result in “great injury or injustice.” Id. (citing Aka v. Jefferson, supra). In the instant case, Appellants argue “[t]hat test is met and exceeded by the calamity visited on Appellants by the trial court’s dutiful application of this Court’s recent pronouncements in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004).” Specifically, Appellants’ claims against the Boy Scouts were first dismissed based on the circuit court’s understanding of the charitable-immunity doctrine. Then, after our court’s decisions in Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002), and Scamardo v. Jaggers, supra, the circuit court also dismissed Appellants’ direct-action claims against the Boy Scouts’ liability insurance carriers on the basis that the Boy Scouts were only immune from liability, not from suit. According to Appellants, this result “[left] the Low family with no remedy at all — through no fault of theirs or of their counsel.”
In dismissing Appellants’ claims against the insurance companies, the circuit court relied on rationale from two recent decisions by this court stating that charitable organizations are not necessarily immune from suit. The first case to expressly note that not all charitable organizations were immune from suit, and consequently not subject to the direct-action statute, was Clayborn v. Bankers Standard Ins. Co., supra. Two years later, in 2004, we formally adopted the Clayborn rationale in Scamardo v. Jaggers, supra. However, the language delineating the scope and impact of the charitable-immunity doctrine has been developing for over a century. An analysis of our case law reveals that, over time, subtle changes in the language used to explain the charitable-immunity doctrine have eventually resulted in drastically different treatment of charitable organizations.
In Fordyce v. Woman’s Christian Nat. Library Ass’n, 79 Ark. 550, 96 S.W. 155 (1906), our court discussed the policy underlying the charitable-immunity doctrine. After determining that the appellee library was a charitable organization, the court stated, “We are of opinion that in this state the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees.” Id. at 559, 96 S.W. at 158. In support of this conclusion, the court noted that the agents and trustees of charities have a duty to the public to protect the charity and its funds and explained:
The immunity of the property of a charity from sale under execution rests on special grounds. The property of a corporation organized solely for charitable purposes is exclusively dedicated to public uses, as much so as the streets and alleys of a town or city; for this purpose the corporation is a mere trustee. It is of primary importance to the public that the trust shall be perpetuated. The trustees of the corporation are usually unsalaried agents, devoting their time and labor to the use and benefit of the public. For their own wrongs and misdeeds they are personally answerable .... If the doctrine of respondeat superior is applied to them, it follows that along with their other powers, they possess an implied power to destroy, by a willful violation of their duties, by collusion, or by negligence, the public interests that they are selected to preserve. Any conclusion that tends to support that view must leave out of consideration the public; that is to say, the party most deeply interested. To say that the trustees may by their negligence destroy the charity is simply to say that they may do indirectly and by inadvertence what they cannot do directly.
Id. at 561-62, 96 S.W. at 159-160.
Fifty years later, the United States District Court for the Western District of Arkansas was asked to determine whether a plaintiff had a right to file a direct action against a liability insurance carrier under Ark. Stats. 1947, Sec. 66-517 (prior version of the direct-action statute, now codified at Ark. Code Ann. § 23-79-210). Michael v. St. Mercury Indemnity Co., 92 F. Supp. 140 (Ark. W.D. 1950). Judge John E. Miller concluded, based on our court’s statements in the Fordyce case, that “under the law of Arkansas, a charitable organization is ‘not subject to suit for tort’ within the contemplation of Sec. 66-517 . . . .” Id. at 144. Judge Miller further noted:
It is true that the [Fordyce] court did not hold that the charitable association could not be sued in the first instance. The facts of the case did not require a decision of that question. The trustees were then and are now personally answerable for their own torts, as are their employees. But, a charitable corporation ... is operated on a non-profit basis, and all of its funds are committed to the operation and furtherance of its charitable purpose. There is no fund set aside or available for the payment of tort damages. If it were otherwise the corporation could not qualify as charitable.... And, to say that although the trust fund of the corporation cannot be reached on execution, and therefore, absolutely nothing realized from a judgment for tort, nevertheless a judgment may be obtained, is, in the opinion of the court, unrealistic and impractical reasoning.
Id. at 142-43. Additionally, our court reaffirmed the Fordyce rule that charitable organizations are immune from execution on their property in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953), where we stated, “In Arkansas we are committed to the rule that an organization maintained exclusively for charitable purposes will be protected against execution, in contradiction of the doctrine respondeat superior.” Id. at 882, 256 S.W.2d at 548.
A few years later, in Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957), the vernacular of the court changed slightly. In reviewing the trial court’s sustaining of the Boys’ Club’s demurrer, this court cited Fordyce v. Woman’s Christian Nat. Library Ass’n, supra, and stated, “The Fordyce cases were decided in 1906 and the rule of immunity as a charitable corporation from tort liability, as there recognized, has become a rule of property in this State.” Cabbiness v. City of North Little Rock, 228 Ark. at 363, 307 S.W.2d at 533 (emphasis added). The above-quoted language represents a significant shift in the court’s phrase ology from the Fordyce language, that charitable organizations are immune from execution on their property, to a new proposition, that charitable organizations are immune from tort liability.
The premise that a charitable organization was immune from tort liability was reiterated in Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961). In Helton, Sharon Helton suffered injuries during a procedure at St. Joseph’s Hospital. The Heltons sued the hospital and staff members. The hospital filed a motion to dismiss, arguing that it was a public charity, and thus not liable in tort. Id. The trial court granted the motion to dismiss, and the Heltons appealed. On appeal, this court examined the question of whether, as a public charity, the hospital was nonetheless liable in tort. The court determined that the hospital was not liable in tort, and held:
[S]ince the appellee is a public charity as a matter of law and is therefore not liable in tort... the trial court did not err in dismissing both complaints. This does not mean, however, that the litde girl and her parents are without any remedy. Of course, the individual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-3240gives the injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.
Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. at 83-84, 351 S.W.2d at 133 (emphasis added). Notably, the court held that, as the hospital was not liable in tort, the trial court did not err in dismissing the complaint against it. Additionally, the above-quoted language from the Helton court strongly suggests that under the direct-action statute (then Ark. Stat. § 66-3240) the plaintiff had a right to file a direct action against the charitable organization’s liability insurance carriers.
A brief statement by the court in the case of Ramsey v. American Automobile Insurance Co., 234 Ark. 1031, 356 S.W.2d 236 (1962), reaffirmed the suggestion in Helton that the direct-action statute authorizes an action against the liability insurers of a charitable organization. Id. at 1032, 356 S.W.2d at 237 (“As a charity the Salvation Army is not subject to an action in tort, but it carried liability insurance with the appellee. This is a direct action against the insurer, pursuant to Ark. Stats. 1947, § 66-3240”). See also Williams v. Jefferson Hospital Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969)(hospital as a charitable organization ex empt from tort liability under the charitable-immunity doctrine). Thirty years later, the Helton rationale that a charitable organization could be dismissed from a suit and its liability insurance carrier be subject to a direct action, was applied in the case of George v. Jefferson Hospital Ass’n, 337 Ark. 206, 987 S.W.2d 710 (1999). In that case, the court found that the defendant-hospital was entitled to assert the charitable-immunity doctrine. We also stated, “Permitting hospitals such as JMRC to raise this defense may seem harsh to injured parties, but our laws provide a remedy in such cases whereby the entity’s insurance carrier may be sued directly.” Id. at 214-215, 987 S.W.2d at 714 (citing the direct-action statute, Ark. Code Ann. § 23-79-210).
In the case of Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002), our court annunciated a distinction between a party’s immunity from suit and its immunity from liability, the distinction later used to support the court’s decisions in Clayborn and Scamardo. In Smith, the plaintiffs filed a suit against Rogers Group, Inc., a contractor who had done highway work for the Arkansas Highway and Transportation Department (AHTD). The suit also named Rogers’ two insurers as defendants. Id. The trial court granted summary judgment on the grounds of acquired immunity and the plaintiff appealed. On appeal, our court upheld the grant of summary judgment and also discussed the appellants’ argument that the direct-action statute authorized an action against the insurers. The Smith court specifically noted that the direct-action statute had been applied to “the insurers of charitable or nonprofit organizations.” Id. at 256, 72 S.W.3d at 459 (citing Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997); Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995); Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994)). This court then determined that the direct-action statute was not applicable in the context of the acquired-immunity doctrine because such immunity was not immunity from suit; rather, it was immunity from liability. Id. at 257, 72 S.W.3d at 460. The Smith court also noted that the direct-action statute was not applicable because the plaintiff was not injured “on account of the negligence or wrongful conduct of the organization[.]” The plaintiff in Smith was attempting to recover from Rogers’ insurers, but Rogers was not negligent in the performance of its contract. Thus, the insurers could not be held responsible under the direct-action statute. Id. at 257, 72 S.W.3d at 460.
Two years later, we handed down the decision in Clayborn v. Bankers Standard Ins. Co., supra. In Clayborn, Linda Witson was employed by Forrester-Davis Development Center, a nonprofit corporation that had liability insurance coverage with Bankers Standard Insurance Company. Ms. Witson drove a van to the Clayborn residence to pick up the children and transport them to the Forrester-Davis facility. In the process of picking up the children-, Ms. Witson ran over Meranda Clayborn. Id.
Meranda’s mother, Appellant Kathleen Clayborn, filed a direct-action complaint against Bankers, seeking damages for the negligent acts of Ms. Witson. Later, she amended her complaint to name Forrester-Davis and Ms. Witson as additional defendants, but eventually moved for a voluntary dismissal without prejudice as to her claims against them. Finally, the trial court granted Bankers’s motion to dismiss, based on the ground that a direct cause of action against Bankers was not allowed under the direct-action statute. Id. On appeal, this court correctly noted that the direct-action statute was not applicable because the appellant did not plead facts to suggest that “ForresterDavis is a nonprofit corporation that would be immune from suit.” Id. at 565, 75 S.W.3d at 179. Furthermore, the appellant failed to cite any case law holding that nonprofit corporations are ipso facto immune from suit. Id. at 156, 75 S.W.3d at 178. The court went on to address the appellant’s suggestion that Forrester-Davis was not subject to suit because it was a charitable organization. After concluding that the charitable-organization question had not been raised at trial and therefore was not properly preserved for appeal, the Clayborn court noted, “We have never said that charitable organizations are altogether immune from suit.” Clayborn v. Bankers Standard Ins. Co., 348 Ark. at 566, 75 S.W.3d at 179 (emphasis in original). The court, in dicta, then proceeded to apply the Smith distinction between “immunity from suit” and “immunity from liability” stating:
Our analysis indicates that a charitable organization may have suit brought against it, but such judgment may not be executed against the property of the charity. We conclude that even iffacts had been pled to allege that Forrester-Davis is a charitable organization, we would nevertheless affirm the trial court’s finding that Ark. Code Ann. § 23-79-210 does not apply because we have never held that charitable organizations are completely immune from suit, but rather, we have only held that they are immune from execution against their property.
Id. at 566, 75 S.W.3d at 180.
While the Smith distinction made sense in the context of the acquired-immunity doctrine, such a distinction does not necessarily apply in the context of the charitable-immunity doctrine, especially in view of our precedent to the contrary. As set forth previously in this opinion, our early cases explained the charitable-immunity doctrine in terms of immunity from execution on property. See Crossett Health Center v. Croswell, supra; Fordyce v. Woman’s Christian Nat. Library Ass’n, supra. Over the years, however, this court has interpreted the charitable-immunity doc trine as preventing suits against charitable organizations and not merely allowing a defense to liability. See Cabbiness v. City of North Little Rock, supra; Helton v. Sisters of Mercy of St. Joseph’s Hospital, supra; Williams v. Jefferson Hospital Ass’n, supra; George v. Jefferson Hospital Ass’n, supra; Smith v. Rogers Group, Inc., supra. By “borrowing” the Smith distinction between “immunity from suit” and “immunity from liability” and applying it in the context of charitable immunity, albeit in dicta, the court took an ominous step away from our century of precedent.
Two years after the Clayborn decision, this court was asked to apply the Clayborn court’s distinction between immunity from suit and immunity from liability, even though that distinction was merely dicta and not part of the holding in Clayborn. Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004). In Scamardo, June Scamardo sued Dr. Robert Jaggers, Sparks Regional Medical Center, and Steadfast Insurance Company alleging negligence. She further alleged in the complaint that Sparks might claim immunity under the charitable-immunity doctrine, and that Steadfast, as the liability insurance carrier for Sparks, was subject to a direct action pursuant to Ark. Code Ann. § 23-79-210. Id. Sparks responded by admitting that it was a not-for-profit corporation and its assets were protected from execution by the charitable-immunity doctrine. Citing our decision in Clayborn, Sparks further contended that it was not immune from suit and, consequently, Steadfast was not a proper defendant. Id. The trial court dismissed Steadfast and Scamardo appealed, arguing that the Clayborn decision should be overruled, or in the alternative, limited to its facts.
In rejecting the point raised on appeal, this court examined numerous cases cited by Scamardo as being in conflict with Clayborn. Scamardo v. Jaggers, 356 Ark. at 245, 149 S.W.3d at 316. Specifically, the Scamardo court examined the above-quoted pas sage from Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961), where we stated:
[S]ince the appellee is a public charity as a matter of law and is therefore not liable in tort.. .the trial court did not err in dismissing both complaints. This does not mean, however, that the little girl and her parents are without any remedy. Of course, the individual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-3240gives the injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.
Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. at 83-84, 351 S.W.2d at 133 (emphasis added). Notably, the holding in Helton does not square with either the Scamardo or the Clayborn rationale that charitable organizations can be sued. While the Helton court did use the “immune from liability” language, it nonetheless affirmed the dismissal of the complaints against the hospital and thereby upheld the hospital’s immunity from suit. Additionally, and more compelling, the court went on to note that the direct-action statute, Ark. Stat. § 66-3240, “gives the injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.” Id. This statement, coupled with the above-quoted language, necessarily points to only one conclusion: The hospital, a charitable organization, was correctly dismissed from the suit as immune from liability in tort, and consequently, the direct-action statute provides a cause of action against the hospital’s liability insurance carriers.
This statutory interpretation — that immunity from liability in tort constitutes immunity from suit under the direct-action statute — governed our case law for over forty years. See Ramsey v. American Automobile Insurance Co., 234 Ark. 1031, 356 S.W.2d 236 (1962); Williams v. Jefferson Hospital Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969); Harvill v. Community Methodist Hospital Ass’n, 302 Ark. 39, 786 S.W.2d 577 (1990); Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994); National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); George v. Jefferson Hospital Ass’n, 337 Ark. 206, 987 S.W.2d 710 (1999); Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002). When a statute has been construed, and that construction has been consistently followed for many years, such construction ought not be changed. Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993). As time passes, the interpretation given a statute becomes part of the statute itself. Id.
The Scamardo opinion further states:
The Helton court specifically noted, however, that ‘the individual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-3240 [now codified at § 23-79-210] gives the injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.’
Scamardo v. Joggers, 356 Ark. at 245, 149 S.W.3d 316. In the context of the Helton case, it is apparent that we were referring to the parties’ right to sue the individuals in their individual capacity and separate from the hospital and not stating that the parties could sue the hospital. Moreover, the opinion in Scamardo fails to reconcile the language from the above-cited quote, that the direct-action statute “gives injured parties in a case of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation,” with its ultimate holding that no such cause of action exists under the direct-action statute.
The appellant in Scamardo also argued that the Clayborn decision was out of step with the decision in George v. Jefferson Hospital Ass’n, supra. In response, the Scamardo court quoted the following passage from George:
The doctrine of charitable immunity has over a ninety-year history in Arkansas jurisprudence. Grissom v. Hill, 17 Ark. 483 (1856); Hot Springs School District v. Sisters of Mercy, 84 Ark. 497, 106 S.W. 954 (1907). The essence of the doctrine is that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). Through the years we have examined the doctrine in detail, finding it applicable to some entities claiming charitable-entity status and inapplicable to others. [Footnote omitted.] The doctrine obviously favors charities and results in a limitation of potentially responsible persons whom an injured party may sue. We, therefore, give the doctrine a very narrow construction. Williams v. Jefferson Hospital Association, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969). But applying it narrowly does not mean that we will avoid its use in any appropriate circumstance.
Scamardo v. Jaggers, 356 Ark. at 246, 149 S.W.3d at 316-17 (quoting George v. Jefferson Hospital Ass’n, supra). According to the George court, “The doctrine [of charitable immunity] . . . results in a limitation of potentially responsible persons whom an injured party may sue.” George v. Jefferson Hospital Ass’n, 337 Ark. at 211, 987 S.W.2d at 710. The Scamardo court, however, failed to explain or reconcile this statement with its holding that the doctrine does not limit a party’s right to sue a charitable organization.
In short, our language delineating the scope of the charitable-immunity doctrine has undergone subtle, but significant, changes in the past century, culminating in the court’s interpretation of the “not subject to suit for tort” language in the direct-action statute, Ark. Code Ann. § 23-79-210, as being synonymous with a charitable organization’s immunity from tort liability. Our court embraced this statutory interpretation consistently for over forty years.
Then, in 2002, the court properly applied the distinction between immunity from liability and immunity from suit in the context of the acquired-immunity doctrine. See Smith v. Rogers Group, Inc., supra. Two years later, the Smith distinction was used, albeit mistakenly, in the context of the charitable-immunity doctrine. Scamardo v. Jaggers, supra (citing dicta in Clayborn v. Bankers Standard Ins. Co., supra, and Smith v. Rogers Group, Inc., supra). This represented a sharp break with our well-settled interpretation of the charitable-immunity doctrine and direct-action statute. The result is that our recent decision in Scamardo v. Jaggers, supra, is out of step with our precedent, and we hereby overrule it. To the extent that the dicta in Clayborn v. Bankers Standard Ins. Co., supra, is inconsistent with this opinion, it is also overruled.
Cross-Appeal
On cross-appeal, Lexington argues that, if the court reverses the circuit court’s dismissal of the insurance companies, we should also reverse the court’s denial of its summary-judgment motion. Specifically, Lexington argues that, because the claim against it was not filed by Andrew until July 24, 2001, over four years after he reached majority, the claim is barred by the statute of limitations. Arkansas Code Annotated § 16-56-116(a) states:
If any person entitled to bring any action under any law of this state is, at the time of the accrual of the cause of action, under twenty-one (21) years of age, or insane, that person may bring the action within three (3) years next after attaining full age, or within three (3) years next after the disability is removed.
Ark. Code Ann. § 16-56-116(a) (Supp. 2005). Ark. Code Ann. § 9-25-101(a) provides that the age of majority is reached at the age of 18, which Andrew reached on March 2, 1997. Thus, under section 16-56-116(a), he had until March 2, 2000, to file his suit against Lexington. Therefore, the amended complaint naming Lexington as a defendant will only survive the statute of limitations if it relates back to the date of the original complaint. See George v. Jefferson Hospital Ass’n, supra (where omission of insurer from original complaint not a mistake of identity as to proper party, no relation back of amended complaint for limitation purposes).
The Lows contend that the second amended complaint naming Lexington as a defendant relates back to an earlier filing. Relation back is governed by Ark. R. Civ. P. 15(c) which states:
An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Ark. R. Civ. P. 15(c) (2005). Lexington argues that, for an amended complaint to relate back to the original filing, it must be established that Lexington was given notice of the action within the statute-of-limitations period, and that the amended complaint cannot relate back because it had no notice of the action. The Lows argue that their failure to timely file against Lexington was the result of the Boy Scouts’ failure to disclose that it was insured by Lexington, and thus the lack of actual notice to Lexington must be excused.
In support of their argument that Lexington can be subject to suit despite late notice of the suit, the Lows offer several cases from other jurisdictions. Overwhelmingly, the rule seems to be that, when a claim by a third party is statutorily authorized against an insurer by virtue of a direct-action statute, the insurer cannot escape liability by claiming to have no notice of the claim. See Auster Oil & Gas v. Stream, 891 F.2d 570 (5th Cir. 1990); Gonzales v. Carribean Carriers, Ltd., 379 F.Supp. 634 (D.P.R. 1974); West v. Monroe Bakery, 217 La. 189, 46 So. 2d 122 (1950). Notably, the issue in these cases is the insured’s failure to give notice required by the insurance policy and not the failure to notify under the applicable rules of procedure. However, the underlying rationales seem to be applicable in this case as well. For example, in West v. Monroe Bakery, supra, the Louisiana court stated:
We are told that it works a hardship on the insurer to be called on to defend an action of this kind, as he has had no prior knowledge of the accident and is not in a position to make a defense. As to the hardship and disadvantage under which the insurer labors, and the difficulty under which the injured party finds himself we think that the ends of justice require that the benefit of the doubt should be given to the injured party, who is in no way at fault, and whose loss was caused entirely by some one else, as against the insurer who has entered into the contract with full knowledge of the statute and for a monetary consideration.
Id. at 200. The Louisiana court went on to establish a balancing test, stating:
Each case involving delayed notices must stand upon its own facts and circumstances. The Court may consider in balancing the equities, not only the time intervening between the accident and the date of notice to the insured, and whether or not the claim is a direct one by the injured persons. . . but also when the parties first discovered that substantial injury had been done or that a claim would be made; the time when the injured party discovered that insurance existed and knew the identity of the insurer; what prejudice to the insurance company’s defense has been caused by the delay; the good faith of the insured and injured party; and the existence of any special circumstances, especially those indicating fraud or collusion.
Id. at 203. Here, the Lows first learned of the existence of Lexington’s liability insurance coverage on April 20, 2001, and the complaint was amended to add Lexington as a defendant three months later, on July 21, 2001. Additionally, Lexington admitted in oral argument that it was not prejudiced by the late notice. Finally, Lexington’s insured, the Boy Scouts, has not shown good faith in its dealings with the Lows. First, the Boy Scouts informed Lexington of the Lows’ claim on March 13, 2001, a full month before notifying the Lows. Moreover, despite repeated requests for information on liability insurance coverage by the Lows, the Boy Scouts shirked its statutory duty to reveal Lexington’s existence. Ark. Code Ann. § 23-79-210(b) (“Any of the organizations or entities not subject to suit for tort . . . upon the request of any person so injured or damaged shall disclose the existence of any liability insurance . . . .”). In light of these facts, we hold that notice can be imputed to Lexington.
Lexington also argues that the amended complaint naming it as a defendant cannot relate back to the original complaint because the Lows have not established that Lexington “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Ark. R. Civ. P. 15(c)(2)(B) (2005). Rule 15, however, allows for relation back when the party knew or should have known. Here, even if Lexington was not aware of the action, it should have known about it. As stated above, the direct-action statute places an affirmative duty on the charitable organization to inform the plaintiff about its liability coverage. See Ark. Code Ann. § 23-79-210(b) (“Any of the organizations or entities not subject to suit for tort . . . upon the request of any person so injured or damaged shall disclose the existence of any liability insurance . . . .”). If the Boy Scouts had fulfilled its duty under the law and informed the Lows about Lexington’s coverage, the Lows could have included Lexington in the suit before the statute of limitations ran. Thus, under these circumstances, we conclude the second amended complaint relates back to the filing of the original complaint and is not barred by the statute of limitations.
Reversed and remanded; cross-appeal affirmed.
Special Justices Donna C. Pettus and G. William Lavender join.
Glaze and Gunter, JJ., not participating.
Ark. Code Ann. § 23-79-210 states:
(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality, or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or ■wrongful conduct of the organization, association, municipality, or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.
(2) The insurer shall be directly liable to the injured person, firm, or corporation for damages to the extent of the coverage in the liability insurance policy, and the plaintiff may proceed directly against the insurer regardless of the fact that the actual tortfeasor may not be sued under the laws of the state.
(b) Any of the organizations or entities not subject to suit for tort described in subsection (a) of this section and the officers of those organizations or entities upon the request of any person so injured or damaged shall disclose the existence of any liability insurance, the name of the insurer, and the terms, amounts, and limits provided by the policy or policies.
(c) (1) Nothing in this section shall be deemed to require the organization or entity not subject to suit for tort to carry liability insurance. This section provides only for a direct action against the insurer by the injured or damaged person in the event liability insurance is so carried.
(2) The substance of this section shall by operation of law be a part of any liability insurance policy so carried, notwithstanding the terms of the policy itself, and any limitation in any policy restricting the right to recover to a judgment’s first being obtained against a tortfeasor shall be void. | [
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Jim Gunter, Justice.
This appeal arises from an order of the Pulaski County Circuit Court, granting declaratory judgment in favor of appellee, The William J. Clinton Presidential Foundation (Foundation), against appellants, Arkansas Department of Economic Development and its director, Larry Walther, in his official capacity (jointly ADED), on the issue of ADED’s decision to deny the Foundation’s application for a tax-incentive program. We affirm the circuit court’s ruling.
ADED has the statutory authority for administering the Arkansas Advantage Program (Advantage Program), as provided by the Arkansas Enterprise Zone Act of 1993 (AEZA), codified at Ark. Code Ann. § 15-4-1701 etseq. (Repl. 2000 and Supp. 2001). The Advantage Program is a tax-incentive program that is designed to draw businesses to Arkansas by providing a refund for sales-and-use taxes for “any legitimate business enterprise” that meets one of the nine classifications enumerated in Ark. Code Ann. § 15-4-1704(b). The AEZA authorizes the ADED to oversee the implementation and operation of the Advantage Program. Ark. Code Ann. § 15-4-1703.
The Foundation is an Arkansas nonprofit corporation that was created in 1997. The Foundation chose to construct the William J. Clinton Presidential Center and Park in downtown Little Rock. The Foundation’s articles of incorporation provide its purposes, which are “to establish and support a Presidential archival depository, ... to house and preserve the books, correspondence, documents, papers, pictures, photographs, and other memorabilia of William J. Clinton, the President of the United States of America, as well as other objects or materials related to the papers or events of the official or personal life of William J. Clinton that have historical or commemorative value, and to undertake and support research and educational activities on policy and historical issues related to the life and work of William J. Clinton.” The Foundation, which is housed in the Presidential Center and Park in downtown Little Rock, has offices and employees in Arkansas and New York, and it is involved in projects throughout the country and around the world. According to the Foundation’s complaint, these projects include “responding to challenges of the global neighborhood; responding to the challenge of September 11; promoting reconciliation and cooperation among the world’s ethnic, racial, and religious groups; promoting economic empowerment through opportunity and responsibility; and supporting a new generation of leaders.”
In August 2001, ADED received the Foundation’s initial application for the Advantage Program. However, the Foundation’s initial application was incomplete because a requisite Standard Industrial Classification Code was not included. ADED did not process the first application, and it is not at issue in the present appeal. On May 1, 2002, the Foundation submitted a second application for tax incentives under the Advantage Program. This application contained the code number 6732, a code which includes establishments primarily engaged in the management of funds of trusts and foundations organized for religious, educational, charitable, or nonprofit research purposes.
On May 24, 2002, ADED denied the Foundation’s application. James Pickens, the former director of ADED, wrote a letter to the Foundation in which he stated that the Advantage Program was not available to nonprofit entities. ADED cited the following reasons for denying the Foundation’s application: (1) the Advantage Program was limited to for-profit businesses, according to the Black’s Law Dictionary definition of a “legitimate business enterprise;” (2) the Foundation was already exempt from paying corporate income tax, and ADED determined that the law “clearly intended to benefit businesses with income and income tax liability in order to take advantage of such benefits;” and (3) accepting the application would conflict with ADED’s interpretation of the Emergency Clause of Act 1130 of 1999, particularly the terms, competitive and invest.
On June 5, 2002, the Foundation wrote ADED and requested a hearing under the Arkansas Administrative Procedure Act to review its decision to deny the Foundation’s application. ADED replied, concluding that “current law does not, in our legal opinion, afford an administrative hearing to review our decision” because “[t]here is no provision under the [AEZA] providing for notice and hearing in this circumstance.”
On July 18, 2002, after ADED’s decision, the Foundation filed a complaint against ADED and Pickens, in his official capacity, regarding the denial of the application. In its complaint, the Foundation sought declaratory judgment that the Advantage Program under the AEZA applies to nonprofit as well as for-profit entities. The Foundation also alleged that, in denying the Foundation’s application, ADED violated and exceeded its statutory authority under the AEZA. Further, the Foundation averred that ADED’s denial of the Foundation’s application was arbitrary and capricious. Finally, the Foundation alleged that ADED’s denial of the Foundation’s application was an error of law because “[t]he Foundation will be liable under Ark. Code Ann. § 26-51-304 for Arkansas income tax if any of its funds earn interest,” and the Foundation “can use income tax credits authorized by the Advantage Program to offset tax liability on any interest income.”
The parties filed cross-motions for summary judgment. On October 13, 2004, the circuit court entered an order, granting summary judgment in favor of the Foundation and reversing the decision of ADED. In its conclusion, the circuit court ruled:
The court therefore finds and hereby declares that under the clear language of the Arkansas Enterprise Zone Act, at the time of plaintiffs application and defendant’s rejection of the same, a “business” or “business enterprise” may be either for-profit or nonprofit. The court further finds that defendant ADED acted in a manner that was arbitrary and capricious, to the detriment of the plaintiff, in determining that the Arkansas Enterprise Zone Act excluded nonprofit corporations from its benefits, and in therefore rejecting plaintiffs otherwise compliant application for benefits under that Act. Plaintiff s motion for summary judgment is granted; Defendant’s cross-motion for summary judgment is denied. Defendant is ordered to approve plaintiffs application made under Ark. Code Ann. § 15-4-1701 et seq., such that the Revenue Division of the Department of Finance and Administration shall authorize a refund of sales and use taxes imposed on plaintiff s project and any income tax credits for which plaintiff may be eligible in accordance with § 15-4-1704(h), subject only to plaintiffs continuing compliance with the AEZA in accordance with this order.
ADED timely filed its notice of appeal on November 2, 2004.
Before we consider ADED’s arguments on appeal, we note the procedural posture of this case and the applicable standard of review. In oral argument, ADED conceded that there was no adjudication by the agency, and therefore, the Administrative Procedure Act did not apply. Under the Administrative Procedure Act, “[adjudication” is defined as an “agency process for the formulation of an order.” Ark. Code Ann. § 25-15-202(1) (Repl. 2002). “Order” is defined as “the final disposition of any agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing.” Ark. Code Ann. § 25-15-202(5) (Repl. 2002). Where there has been no adjudication before the administrative agency, there has been no “final agency action” to be reviewed pursuant to Ark. Code Ann. § 25-15-212. Here, ADED concedes that there was no adjudication, and moreover, a complaint for declaratory judgment, naming ADED as the defendant, was filed by the Foundation after ADED’s denial of the Foundation’s application. Both parties then filed cross-motions for summary judgment, and the circuit court ruled in favor of the Foundation. Because there is no ADED decision before us, we shall review the circuit court’s order.
We recently articulated our standard of review in summary-judgment cases in Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005), where we stated:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. 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 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 persons might reach different conclusions from those undisputed facts.
Rice, id. (citations omitted).
For its first point on appeal, ADED argues the circuit court erred in ruling that ADED’s interpretation of the AEZA applied only to for-profit businesses. Specifically, ADED argues that the Foundation is not a “legitimate business enterprise” under the plain language of Ark. Code Ann. § 15-4-1704(a), and in order to qualify for the Advantage Program’s sales-and-use tax refund, it must be read in conjunction with subsection (b), which enumerates nine classifications of businesses, and the Foundation must fit within one of those nine categories. ADED further contends that the Foundation is not a “legitimate business enterprise” even if we determine that Ark. Code Ann. § 15-4-1704 is ambiguous.
In response, the Foundation argues that the plain meaning of Ark. Code Ann. § 15-4-1704 makes nonprofit entities eligible for the tax incentives under the Advantage Program. Specifically, the Foundation contends that an interpretation of the AEZA to exclude nonprofit business would yield absurd results and would conflict with the legislative intent to provide incentives to businesses willing to bring jobs and resources to Arkansas. The Foundation further asserts that the plain meaning of “business” and “business entities” is consistent with the classifications and benefits of the AEZA and other statutes.
The issue of whether the AEZA bars nonprofit entities from economic development incentives outlined in the Advantage Program is an issue of first impression. The question before us is two-fold: (1) whether the Foundation is a “legitimate business enterprise” under subsection (a), and (2) if the Foundation is a “legitimate business enterprise,” whether it fits within one of the nine classifications under subsection (b). This question requires statutory interpretation. The basic rule of statutory construction is to give effect to the intent of the legislature. Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (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, stat utes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.
The statute at issue is Ark. Code Ann. § 15-4-1704, which provides in pertinent part:
(a)(1) The Revenue Division of the Department of Finance and Administration shall authorize a refund of sales and use taxes imposed by the state and a municipality or county if the municipality or county authorized the refund of its local tax on the purchases of the material used in the construction of a building or buildings or any addition, modernization, or improvement thereon for housing any legitimate business enterprise and machinery and equipment to be located in or in connection with such a building.
(b) A sales and use tax refund as provided for in subsection (a) of this section shall be authorized, provided that the business is classified as one (1) of the following types of businesses:
(7) A corporate or regional headquarters with no retail sales to the general public that creates twenty-fwe (25) or more net new full-time permanent jobs[.]
Ark. Code Ann. § 15-4-1704(a) and (b) (emphasis added).
The first question is whether the Foundation is a “legitimate business enterprise” under subsection (a). Here, ADED, in a letter written by Jim Pickens, the former director of ADED, denied the Foundation’s application to participate in the Advantage Program because, as a nonprofit entity, the Foundation did not fall within one of the nine classifications that constitute a “legitimate business enterprise” under the AEZA. In the letter, ADED stated that the Advantage Program “has uniformly been limited to for-profit businesses,” and that based upon “historical practice” of ADED, nonprofit entities are ineligible for the tax refunds. In support of its ruling, ADED cited the fifth edition of Black’s Law Dictionary for the definition of business enterprise as an “investment of capital, labor, and management in an undertaking for profit.”
Based upon our rules of statutory construction, we construe “legitimate business enterprise” under subsection (a) to include nonprofit businesses. While ADED relied upon the fifth edition of Black’s Law Dictionary, the current edition of Black’s Law Dictionary provides the definition for “business enterprises”as “[t]he field of law dealing with various forms of business, such as corporations, limited-liability companies, and partnerships.” Black’s Law Dictionary 211 (8th ed. 1999). We view this broad term, “various forms of business,” to encompass nonprofit businesses as well. See, e.g., Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985) (stating “[activities of eleemosynary, religious, or educational organization [sic] may be performed for a business purpose.” Id. at 297 (citing 29 C.F.R. § 779.214 (1984)).
ADED contends that the trial court erred in finding that the AEZA included nonprofit businesses because the Consolidated Incentive Act of 2003, codified at Ark. Code Ann. § 15-4-2703(10), which consolidated and revised six earlier economic development acts, including the AEZA, expressly provides that tax incentives are available for for-profit businesses. The 2003 Act defines “eligible businesses” as “nonretail businesses engaged in commerce for profit.” Ark. Code Ann. § 15-4-2703(10) (emphasis added). Citing Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001), for the proposition that a subsequent amendment to a statute accomplishes substantive changes, the circuit court ruled that the legislature’s addition of the words, “for profit,” in the 2003 Act was substantive in nature, rather than an attempt to clarify the statute at issue. The circuit court further ruled that because this substantive change did not previously exist in the AEZA at the time the Foundation made its application, the statute at issue applied to both for-profit and nonprofit businesses.
We agree with the circuit court’s reasoning. We have been hesitant to consider subsequent legislation in our interpretation of previous statutes. Yamaha, 344 Ark. at 53, 38 S.W.3d at 361. Here, the legislature accomplished substantive changes in the 2003 Act to exclude nonprofit businesses. However, at the time the Foundation made its application with ADED, the statute at issue did not expressly prohibit nonprofit businesses from participating in the Advantage Program. Thus, in light of this subsequent change in the 2003 Act, and in the absence of a definition of “legitimate business enterprise” provided by our legislature in the AEZA, we resort to the plain meaning of the term, and we hold that the Foundation’s status as a nonprofit entity is a “legitimate business enterprise” under subsection (a).
Now that we have determined that the Foundation, as a nonprofit entity, qualifies as a “legitimate business enterprise” under subsection (a), we then must determine whether it fits one of the nine classifications enumerated in subsection (b), particularly whether the Foundation qualifies as “a corporate or regional headquarters with no retail sales to the general public.” See Ark. Code Ann. § 15-4-1704(b)(7).
The Foundation argued that it is classified as “a corporate or regional headquarters with no retail sales to the general public that creates twenty-five (25) or more net new full-time permanent jobs” under subsection (b)(7). Thus, there are three elements that the Foundation must meet: (1) a corporate headquarters, (2) with no retail sales to the general public, and (3) that creates twenty-five (25) or more net new full-time permanent jobs. Ark. Code Ann. § 15-4-1704(b) (7).
The circuit court, noting that ADED failed to state in its letter that it did not find the Foundation’s proposed project to be a headquarters, stated that “[ADED] is barred from contending that the Foundation is not such a headquarters.” Further, in reviewing the evidence submitted by the Foundation in its response to ADED’s cross-motion for summary judgment, the circuit court ruled that the Foundation’s application complied with one of the required categories as a corporate or regional headquarters because of its SIC classification noted on the application itself. In its order, the circuit court stated, “[T]he Foundation submitted evidence in the form of its application, which states that it is for the Foundation’s corporate headquarters, and its SIC classification of 6732, for Corporate Headquarters for Private Charitable Foundation. . . . Having come forward with no proof whatsoever in its cross-motion for summary judgment..., [ADED has] not met their burden of proof under Ark. R. Civ. P. 56 to obtain summary judgment on that basis.” The circuit court further ruled that the Foundation complied with the required, statutory category as a corporate or regional headquarters. We note that, while the circuit court’s ruling interpreted § 15-4-1704(a) by applying our rules of statutory construction, the circuit court’s ruling regarding § 15-4-1704(b) was based on a review of the evidence submitted in the cross-motions for summary judgment.
We agree with the circuit court’s ruling. Here, the Foundation meets the three elements required by Ark. Code Ann. § 15-4-1704(b)(7). First, the Foundation falls within the definition of “corporate headquarters” as “the home or center of operations, including research and development, of a national or multinational corporation” under Ark. Code Ann. § 15-4-1702(2) (Supp. 2001). The Foundation designated itself as a corporation with “Corporate Headquarters for Private Charitable Foundation under SIC Code 6732” on its application. Additionally, the Foundation’s articles of incorporation provide, “It is intended that the Corporation shall have the status of a corporation . . .[.]” (Emphasis added.) The articles of incorporation further state that “[t]he corporation will solicit and accept gifts or bequests for the purposes of establishing, operating, protecting or improving the Presidential archival depository and of undertaking and supporting research and educational activities” (emphasis added). The Foundation further provided in its complaint that “[t]he Center and Park will be the national and international headquarters for the Foundation, which has programs throughout the world.” The Foundation also alleged that it had employees in Little Rock and New York City. Therefore, based upon this evidence presented to the circuit court, the Foundation fits the first element of “corporate headquarters” as “the home or center of operations, including research and development, of a national or multinational corporation” under Ark. Code Ann. § 15-4-1702(2).
Second, the Foundation fits the second and third elements of Ark. Code Ann. § 15-4-1704(b)(7). With regard to the issue of whether the Foundation makes any retail sales, the following question is on the Foundation’s application: “Does your company have retail sales to the public?” The Foundation responded, “No.” Third, on the question of employees, the Foundation indicated on its application that it projected twenty-five new permanent employees after completion. Therefore, we hold that the Foundation falls within the seventh classification of Ark. Code Ann. § 15-4-1704(b) (7). We further conclude that the trial court did not err in finding that ADED did not provide the requisite proof-with-proof in this summary-judgment case to refute the Foundation’s qualification as a corporate headquarters.
Next, ADED argues that the legislative intent behind Act 1130 of 1999 supported ADED’s interpretation “that the legislature clearly intended for enterprise zone benefits to be limited to for-profit businesses,” and its conclusion that the Foundation, “as a nonprofit entity, ... is exempt from paying corporate income tax.” In response, the Foundation argues that it competed with other states for the Foundation’s headquarters, and moreover, the words competitive and invest in the emergency clause “imply no special property of profit making, even in the daily parlance of Appellants.”
The circuit court ruled that “ADED may well have erred in its conclusion that the Foundation is exempt from income tax, as the Foundation argues, but the court need not reach that point because the rules of construction of a non-ambiguous statute do not permit a study of other provisions to determine what the legislature ‘must have intended.’” The circuit court further ruled that it need not reach the issue of legislative intent because it based its ruling on the plain language of “business” or “business enterprise.”
We agree with the circuit court on this issue. We have stated repeatedly that if a statute is clear, we will not search for the legislative intent; rather, the intent must be gathered from the plain meaning of the language used. Weiss v. Geisbauer, 363 Ark. 508, 215 S.W.3d 628 (2005) (citing Cave City Nursing Home, Inc. v. Ark. Dept. of Human Serv., 351 Ark. 13, 89 S.W.3d 884 (2002)). While we recognize that the parties argued this issue in their briefs, we decline to search for the legislative intent, as we have already concluded that the plain meaning of the term, “legitimate business enterprise,” under the plain meaning of Ark. Code Ann. § 15-4-1704(a), includes the Foundation as a nonprofit entity.
For its second point on appeal, ADED argues that the circuit court was arbitrary and capricious in holding that ADED’s determination that the AEZA excluded nonprofit businesses from its benefits. Specifically, ADED contends that “[a] review of the actions taken by ADED prior to denying the Foundation’s application demonstrates it conscientiously reviewed the application and the law.” In response, the Foundation concedes in its brief that the arbitrary-and-capricious standard is inapplicable to the case at bar. Because we review the circuit court’s decision, rather than the agency’s decision, we are not bound by an arbitrary-and-capricious standard of review, and we do not reach the merits of ADED’s second point on appeal.
Based upon the foregoing reasons, we hold that the circuit court did not err in its ruling that the Foundation qualifies as a nonprofit entity under Ark. Code Ann. § 15-4-1704. Accordingly, we affirm that declaration by the circuit court.
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Robert L. Brown, Justice.
Appellant Angelia Hackelton appeals from the order granting summary judgment to appellees Mark J. Malloy, M.D. and Mark J. Malloy, M.D., P.A., (hereinafter “Dr. Malloy”) and the order dismissing appellee Dr. Dennis Yelvington from the litigation. She raises two points on appeal: (1) there was no basis in law for the dismissal of Dr. Malloy from the action; and (2) the trial court erred by dismissing her complaint against Dr. Yelvington for failure to perfect service, because Ms. Hackelton properly filed a motion to extend time to serve Dr. Yelvington within 120 days of adding him as a defendant. We affirm in part and reverse in part and remand.
The facts are alleged in Ms. Hackelton’s complaint. On October 25, 1995, Lois Ray was admitted at the emergency room of the Stuttgart Regional Medical Center (“SRMC”), where she was diagnosed with congestive heart failure by Dr. Malloy. On October 27, 1995, Mrs. Ray was released. On October 28, 1995, Mrs. Ray returned to the SRMC emergency room complaining of severe abdominal pain. She was seen by Dr. Malloy, who released her. On October 29, 1995, Mrs. Ray returned for a third time to the emergency room, and she was again admitted. Dr. Malloy continued to treat Mrs. Ray for “congestive heart failure” at SRMC from October 29, 1995, up to and through November 14, 1995, when Mrs. Ray was transferred to the care of Dr. Yelvington. Mrs. Ray died on November 22, 1995, from an infracted and perforated bowel, a condition which Ms. Hackelton asserts Dr. Malloy and Dr. Yelvington failed to identify, diagnose, and treat.
On October 1, 1997, Ms. Hackelton petitioned to be appointed administrator of the Estate of Lois Ray, her deceased mother. On October 2, 1997, she filed a complaint against Dr. Malloy, Stuttgart Regional Medical Center, and John Does 1-25 for medical malpractice and wrongful death. On October 8, 1997, the probate court entered an order appointing Ms. Hackelton administrator. On October 15, 1997, Ms. Hackelton amended her original complaint to name Jack Wagoner, M.D., and Dr. Yelvington as defendants. In her amended complaint, she incorporated by reference her original complaint filed on October 2, 1997, under Arkansas Rule of Civil Procedure 10. Ms. Hackelton also cited to Arkansas Rule of Civil Procedure 15 in her amended complaint and stated that she was amending her complaint in accordance with that rule to bring the action against Dr. Wagoner and Dr. Yelvington. On October 20, 1997, Ms. Hackelton filed an addendum to her amended complaint in which she noted that she was changing the style of the case to reflect that Dr. Wagoner and Dr. Yelvington had been added to her complaint as defendants.
On February 23, 1998, the trial court entered an order granting Ms. Hackelton’s motion for extension of time to serve Dr. Wagoner and Dr. Yelvington and extended the time for service and identification to June 19, 1998. Ms. Hackelton obtained service on Dr. Yelvington on May 6, 1998. On August 17, 1998, Dr. Yelvington moved to vacate the prior order of the trial court that granted Ms. Hackelton the extension of time to serve him. Dr. Yelvington’s motion also requested that the court dismiss him from the action with prejudice. The trial court denied Dr. Yelvington’s motion and ruled that the request for extension of time was made in accordance with Arkansas Rule of Civil Procedure 4(i).
On January 10, 2003, Dr. Yelvington moved to clarify the trial court’s previous denial of his motion to vacate in which he alleged that Ms. Hackelton’s motion to extend time was filed late in violation of Rule 4(i). On October 30, 2003, the court entered an order granting Dr. Yelvington’s motion for clarification and dismissed Dr. Yelvington from the action with prejudice.
On January 27, 2003, prior to his dismissal from the lawsuit, Dr. Yelvington filed a second motion for summary judgment in which he alleged that Ms. Hackelton did not have standing to bring this action and that her original complaint was a nullity. Before the court ruled on this motion, Dr. Yelvington was dismissed on the basis of lack of timely service. On December 18, 2003, the court entered an order dismissing Dr. Malloy from the action for the same reasons stated in Dr. Yelvington’s standing-to-sue motion, which was Dr. Yelvington’s second motion for summary judgment. On February 2, 2004, on motion by Ms. Hackelton, the court entered an order granting a nonsuit and dismissing without prejudice all parties not previously dismissed, in accordance with Rule 41 of the Arkansas Rules of Civil Procedure.
I, Dr. Malloy’s Dismissal
Ms. Hackelton first contends that she was the real party in interest under Arkansas Rule of Civil Procedure 17(a) because she was appointed the administrator of her mother’s estate. She asserts that even assuming arguendo that she was a nonexistent plaintiff at the time she filed her original complaint and not yet the real party in interest, she did file an amended complaint thirteen days later in her formal capacity as administrator. She further claims that after she was appointed administrator, she was the only person who had standing to file the wrongful-death suit, and that she did so.
In addition, she urges that Dr. Malloy waived his objection to her standing as the real party in interest by waiting five years and three months after the filing of the original and amended complaints to raise this issue. Because Dr. Malloy’s defense to Ms. Hackelton’s wrongful-death claim before she was appointed administrator is the same defense made to Ms. Hackelton’s claim after her formal appointment as administrator, she asserts that there was clearly no prejudice to Dr. Malloy.
As a third point, Ms. Hackelton argues that our prior case law regarding standing is inapplicable to this case, and the trial court’s reliance on those cases was error. She contends that is because in those cases the statute of limitations had run prior to the entry of the amended pleadings, while in her case at the time she filed her amended complaint and her addendum to the complaint, the statute of limitations had not run. Moreover, she claims that her amended complaint constituted a new action, which was timely filed within the time frame of the statute of limitations. Therefore, the trial court’s decision to dismiss her action because the amended complaint could not “relate back” to the original complaint was erroneous and should be reversed.
Dr. Malloy responds that summary judgment and his dismissal were proper because Ms. Hackelton was not the real party in interest under Rule 17(a) when she filed the original complaint pursuant to Ark. Code Ann. §§ 16-62-101 and 102 (1987). He adds that because Ms. Hackelton was not the real party in interest, she lacked standing to sue, and her original complaint was a nullity. He points out that in Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), this court held that a nonexistent complaint cannot be corrected or salvaged.
Dr. Malloy further contends that he never waived his objection to Ms. Hackelton’s standing to sue. He emphasizes that Dr. Yelvington raised the objection to Ms. Hackelton’s standing before trial. He further claims that Rule 17(a) cannot preserve Ms. Hackelton’s complaint, when her complaint never existed. In this connection, he states that it is illogical to assert that he waived his defense to a void claim.
We first consider the judgment in this case entered by the trial court. Though a motion for summary judgment is referred to in the judgment, the complaint against Dr. Malloy was dismissed due to the expiration of the statute of limitations. Accordingly, we view this matter as an appeal from a grant of a motion to dismiss. Our standard of review in such appeals has recently been stated:
When reviewing a circuit court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as tme and view them in the light most favorable to the plaintiff. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). In testing the sufficiency of a complaint on a motion to dismiss, ah reasonable inferences must be resolved in favor of the complaint, and ah pleadings are to be liberally construed. See id. Further, if there is any reasonable doubt as to the apphcation of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).
Brewer v. Poole, 362 Ark. 1, 7, 207 S.W.3d 458, 461 (2005).
Rule 17(a) of the Arkansas Rules of Civil Procedure reads, in pertinent part, that “[ejvery action shall be prosecuted in the name of the real party in interest.” To determine who is properly classified as the real party in interest in a wrongful-death claim, we look to the applicable statute:
Every action shah be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shah be brought by the heirs at law of the deceased person.
Ark. Code Ann. § 16-62-102(b) (1987).
In St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, W. Div., 348 Ark. 197, 73 S.W.3d 584 (2002), all but one of the deceased’s heirs-at-law filed a pro se complaint prior to the expiration of the statute of limitations and claimed medical malpractice. Later, the appointed administrators, who consisted of some of the plaintiffs who had filed the original complaint, filed an amended complaint after the statute-of-limitations period had expired. This court held that the pro se plaintiffs had no standing to sue when they filed the original complaint. Even though the plaintiffs who filed the original complaint and those who filed the amended complaint were substantially the same persons, they were not the same parties and, thus, were not acting in the same capacities. We noted that while they did not have standing to sue when they filed the original pro se complaint, they did have standing when they filed the amended complaint as appointed administrators. But we added, “[u]nfortunately, the statute of limitations had expired in the meantime.” Id. at 205, 73 S.W.3d at 589.
We went on to say in St. Paul Mercury Ins. Co. that “[a]n action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark. Code Ann. § 16-62-101.” Id. We held that because the amended complaint in that case operated to substitute out “all the plaintiffs, and put in their place entirely new plaintiffs, it was not an amendment, but rather was a new suit.” Id. at 206, 73 S.W.3d at 589; see also Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 664, 473 S.W.2d 910, 911 (1971) (noting that “[i]t is well settled that where an action is brought in-the name of a non-existing plaintiff, an amendment of complaint by substituting the proper .party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations”).
In the case at hand, it is clear that under § 16-62-102(b), Ms. Hackelton did not have standing to sue when she filed the original complaint on October 2, 1997, because she had not yet been appointed the administrator of Mrs. Ray’s estate and was not the sole heir. She was, however, appointed the administrator of the estate six days later. As a consequence, she was deemed to be a new party when she filed the amended complaint seven days later on October 15, 1997. As this court explained in St. Paul Mercury Ins. Co., “individual heirs at law are entirely distinct legal persons from . . . appointed administrators, and thus different parties.” 348 Ark. at 205, 73 S.W.3d at 589. Based on this court’s reasoning in St. Paul Mercury Ins. Co., the filing of an amended complaint by a new party constituted the commencement of a new suit. Because the new suit was initiated prior to the expiration of the statute of limitations period, there was no need for the suit to “relate back” to the original complaint filed on October 2,1997, under Arkansas Rule of Civil Procedure 15(c).
The only question that then remains is whether Ms. Hackelton’s amended complaint can incorporate by reference the contents of her initial complaint, which she did not have standing to bring. We recently addressed a related question in Brewer v. Poole, supra. In Brewer, this court held that where the plaintiff who filed the wrongful death suit did not comply with § 16-62-102(b) due to the lack of all the heirs-at-law as parties to the lawsuit, the original complaint was a nullity. See id. This court then said: “[w]here the original complaint is a nullity, Rules 15 and 17 [of the Arkansas Rules of Civil Procedure] are inapplicable because the original complaint never existed; thus, there is no pleading to amend and nothing to relate back.” Id. at 14, 207 S.W.3d at 466.
Applying Brewer to the instant case, we conclude that the original complaint filed by Hackelton was a nullity because Hackelton did not have standing to file the complaint as she was not the appointed administrator nor was she the sole heir at law at that time. Having said that, in the case before us, unlike Brewer, we have a new lawsuit commenced by a proper party plaintiff within the time period of the statute of limitations which incorporates by reference the allegations made in the original complaint. Furthermore, Rule 10(c) of the Arkansas Rules of Civil Procedure expressly provides that statements in a pleading can be adopted by reference in another pleading. That is precisely what Ms. Hackelton did with her amended complaint. She incorporated statements from her original complaint into her amended complaint by reference and, thus, allowed them to function as allegations in a new suit. This is categorically different from an attempt to amend an original complaint with a new party plaintiff and have that amendment relate back to the original complaint under Rule 15(c) after the statute-of-limitations period has passed. Relation-back, of course, was the issue in Brewer v. Poole, supra.
In short, although for purposes of relation back under Rule 15, the original complaint is a nullity because Ms. Hackelton lacked standing to sue at the time she filed it, the original complaint remains a document setting out allegations satisfying the fact-pleading requirements for a complaint set out in Ark. R. Civ. P. 8(a)(1). The facts pled in the original complaint may be adopted by reference under Ark. R. Civ. P. 10(c) into the timely amended complaint. Rule 15 and relation back under that rule are simply not relevant to adoption by reference under Rule 10. We reverse the trial court’s dismissal of Dr. Malloy and remand for further proceedings.
II. Dismissal of Dr. Yelvington
We turn next to the dismissal of Dr. Yelvington. Ms. Hackelton asserts that Dr. Yelvington was properly made a party in this case on October 20, 1997, when she filed an addendum to her amended complaint that named Dr. Yelvington as a party defendant in the caption of the action. According to her assertions, under Arkansas Rule of Civil Procedure 10(a), “the title of the action shall include the names of all the parties.” She reasons that this court’s case law also supports her argument that in order for a person to be made a party to a lawsuit, his or her name must be included in the caption of the case. Because October 20,1997, was the first time she included Dr. Yelvington as a party in the caption of the case, she claims that this is the date when he was formally made a party to the lawsuit. Hence, she contends that it is from this date that the 120-day period for service in Arkansas Rule of Civil Procedure 4(i) began to run. She further notes that Dr. Yelvington actually admitted this in his September 26, 2002, Motion for Partial Summary Judgment, where he alleged that “[b]y addendum to Amended Complaint, filed of record on October 20, 1997, Dr. Dennis Yelvington was added as a party defendant.” Ms. Hackelton adds that it was not until January of 2003 that Dr. Yelvington changed his position and claimed he was made a party defendant on October 15, 1997.
Dr. Malloy responds that Ms. Hackelton is raising the “caption” argument under Rule 10(a) for the first time on appeal. We agree. After scouring the record in this case, we find no argument based on Rule 10(a) that was made to the trial court relative to Dr. Yelvington. Nor do we find where the “admission” argument about when Dr. Yelvington was added as a party defendant was made to the trial court. It is elementary that this court will not consider arguments made by an appellant for the first time on appeal. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). We will not do so because it is incumbent on the parties to raise arguments initially to the trial court to give that court an opportunity to consider them. Hubbard v. Univ. of Arkansas Med. Sciences, 272 Ark. 500, 616 S.W.2d 10 (1981). Otherwise, this court would be placed in the position of reversing a trial court for reasons never presented to that court. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). We will not do this. Accordingly, we affirm the trial court in the dismissal of Dr. Yelvington from this action.
Affirmed in part. Reversed in part and remanded.
Glaze and Imber, JJ., concur.
In her complaint, Ms. Hackelton described the “John Does 1-25” as “representing all persons responsible for providing medical/nursing/health care and treatment to the deceased, or the liability insurance carrier for any defendant immune to direct action.”
At various times, Jack Wagoner is referred to as Jack Warner in the pleadings.
In her brief, Hackelton states that the time was extended to June 18,1998. Her motion for extension of time, which the court granted, requests, however, that the time be extended to June 19,1998.
From a review of the record, it appears that the trial court entered judgment in favor of Dr. Malloy based on the argument in Dr. Yelvington’s second motion for summary judgment. Dr. Malloy apparently did not file a motion incorporating the arguments made in Dr. Yelvington’s second motion for summary judgment, but he previously asked for dismissal in his answer to Ms. Hackelton’s original complaint. | [
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Tom Glaze, Justice.
Appellant Kirk Otis was charged with capital murder for shooting and killing Barney Smith. Otis, who was fourteen years old at the time, was convicted of manslaughter and sentenced to ten years’ imprisonment. On appeal, Otis does not challenge the sufficiency of the evidence supporting his conviction; rather, he urges that the trial court erred 1) in denying his suppression motions, and 2) in allowing the State to display a large photo of the victim to the jury during the course of the trial. We find no error and affirm.
Prior to trial, Otis filed several motions seeking to suppress various statements he gave to investigating officers. Evidence taken at the suppression hearing revealed the following: During the course of investigating the death of Barney Smith, police officers received a phone call from Tamara Thomas, who had heard that a person nicknamed “Oonie Pig” may have been involved in the shooting. Agent R.L. Newton of the Arkansas State Police discovered that “Oonie Pig” lived at a certain address in Stuttgart, so Newton, along with Agents Ken Whitmore and David Chastain of the Arkansas State Police, went to that address during the early evening hours of July 25, 2001. Newton then knocked on the door, and Otis’s grandmother, Catherine Geans, answered. Newton asked to speak to Otis. When Otis came to the door, Newton advised Otis that he was not a suspect and was not under arrest, but the police wanted to interview him to see if he had any information about the murder. According to Newton’s testimony, Geans looked at Otis and asked him whether he wanted to go with the officers; Otis replied that he would.
Newton testified that he asked Otis if he would voluntarily come with the officers so they could talk to him, telling him that it would probably take ten or fifteen minutes, after which the police would bring him back home. Newton said that, at that point, Otis was not considered a suspect; the officers thought the tip about “Oonie Pig” was “just another lead we were running out.”
The officers transported Otis to the police station in an unmarked vehicle. Once there, Newton asked Otis where he had been the night of July 20, 2001, the night Smith was shot. Otis, who was fourteen years old at the time, first replied that he had been at his grandmother’s house, but then he changed his story and said that he had been at his cousin’s. When Newton asked whether Otis knew anything about the man who had been robbed and killed on Fifth Street, Otis paused a moment, then hung his head and said, “I did it. I was drunk.” Newton immediately stopped questioning Otis and called the prosecuting attorney, who advised Newton to read Otis his Miranda rights.
Agent Whitmore advised Otis of his Miranda rights at approximately 9:00 p.m. on July 25, 2001. According to Whitmore, Otis appeared to understand those rights and agreed to give a statement. In this statement Otis claimed that his cousin, Lloyd O’Neal, had done the shooting and that he (Otis) had unwittingly acted as a lookout.
At this point, the officers determined that they should call Otis’s grandmother Geans and ask her to come to the station. After Geans arrived, along with Otis’s mother and step-father, Newton tape-recorded a third statement, beginning at 12:40 a.m. on July 26, 2001, in which he asked Otis leading, yes-or-no questions about what had happened since the police officers picked Otis up at his grandmother’s house.
At 12:50 a.m. that same morning, Agent Whitmore again advised Otis of his Miranda rights and took another tape-recorded statement, in which Otis repeated his story that his cousin had committed the robbery and shooting; Otis denied that he had been involved. After giving this fourth statement, Otis accompanied police officers as they went to look for the murder weapon. They returned to the police station between 2:00 and 2:30 a.m. on July 26, 2001, and Otis was taken to the juvenile detention facility early that same morning.
Otis was also given a polygraph examination on July 26, 2001, by Arkansas State Police polygraph examiner Charles Beall. Prior to the examination, Beall read Otis his Miranda rights about 9:26 p.m. During the pre-test interview, Otis told Beall that he was not involved in any way in the death of Barney Smith. During the polygraph examination, Otis again denied being involved. After the test, Beall took a tape-recorded statement from Otis, but this time, Otis confessed to having shot Smith.
After taking the polygraph examination, Otis was returned to the juvenile detention facility. When he arrived, he encountered juvenile intake officer Doug Manchester. Manchester testified that Otis was “upset and crying,” and said to Manchester, “Mr. Doug, I told the truth.”
Otis was again taken out to look for evidence during the early morning hours of July 27, 2001. Arkansas State Police Agent Charles McLemore was assigned to take Otis back to the sheriff s office. At approximately 1:30 a.m. on July 27, as the two were returning to the sheriffs office, Otis asked McLemore if he could ask a couple of questions. Before McLemore could respond, Otis said, “Sir, that wasn’t me that killed that man.” Otis then stated, “If I had not been drinking gin, I would never have done that.” Otis then related to McLemore that he (Otis) had gone up on Smith’s porch with a gun in his hand. Smith made a derogatory racial comment to him, and Otis, who had cocked the gun, said he did not know what happened, but that the hammer slid forward.
The last statement at issue occurred at the juvenile detention facility; Jackie Wilson, an employee of the facility, testified that Otis called Wilson to his cell, and said that he did not know what the judge was going to do to him. Otis also told Wilson that he had gotten the gun in order to go target shooting with his father, but his father did not show up. Otis also claimed to have been drinking that day; he told Wilson that he was on his way home and went through Smith’s yard. When he asked Smith for some money, Smith used a racial epithet and told him to get out of his yard. This made Otis angry, Otis told Wilson, so he pulled out the gun and pulled back the hammer, and the gun went off.
Having considered the pertinent evidence needed to address his motions to suppress, Otis raises four separate arguments to show that the trial court erred when it denied his motions. In his first subpoint on appeal, Otis argues that the trial court erred in finding that the police did not violate Ark. R. Crim. P. 2.2 and 2.3 and Ark. Const, art. 2, § 15. Here, he relies on this court’s decision in State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), in which this court held that police officers must inform a suspect that he or she has the right to refuse to consent to the officers’ request to conduct a search of the suspect’s home. Brown, however, is inapplicable to the facts of this case.
In Brown, this court was specifically concerned with warrantless entries into the home. In addressing the propriety of “knock-and-talk” searches, this court held that, in order for a warrantless, consent-based search of a home to be valid, the investigating officers must inform the suspect that he or she has the right to refuse to consent to that search. Brown, 356 Ark. at 472-73. In so doing, this court emphasized Arkansas’s “constitutional history and preexisting state law regarding the privacy rights of a home dweller in his or her home[.]” Id. at 470. Nothing in the text of the opinion indicates that it was intended to be applied to situations involving requests for individuals to accompany police officers to the police station in order to assist with an investigation.
Rather, the appropriate inquiry is under Ark. R. Crim. P. 2.2, which permits an officer to ask a person to appear at the police station, so long as the officer does not indicate that a person is legally obligated to furnish information or to otherwise cooperate, and Ark. R. Crim. P. 2.3, which provides that a law enforcement officer asking an individual to come to the police station must “take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.” Otis concedes that there was some testimony indicating that Newton informed Otis that he did not have to accompany the officers to the police station. As such, the trial court did not err in concluding the officers did not violate Rule 2.3. See Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003) (resolving issues concerning the credibility of witnesses is within the province of the trial court).
However, Otis argues briefly that the officers violated Rule 2.2 by failing to inform him that he was under no legal obligation to talk to the police. However, the trial court made no ruling with respect to whether the officers violated Rule 2.2, finding only that the officers did not violate Rule 2.3. Otis failed to preserve his argument concerning Rule 2.2. See, e.g., Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004) (it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal).
Otis next argues that the trial court erred in finding that he intelligently and voluntarily waived his Miranda rights. In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). In other words, the relevant inquiry is whether Otis waived his rights with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Sanford v. State, 331 Ark. 334, 346, 962 S.W.2d 335, 341-42 (1998). In order to make this determination, this court reviews the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Jordan, supra. This court will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001).
Consideration of the validity of a criminal defendant’s waiver of the right to remain silent and the right to counsel prior to giving an inculpatory statement may be divided into two components. See Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994); Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1990). The first component is the voluntariness of the waiver, and it concerns whether the accused has made a free choice, uncoerced by the police, to waive his rights. Clay, 318 Ark. at 129 (citing Mauppin v. State, 309 Ark. 235, 831 S.W.2d 102 (1992)). The second component involves whether the defendant made the waiver knowingly and intelligently, and the inquiry then focuses on determining if the waiver was made with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id.
A statement is voluntary if it is the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Conner, 334 Ark. at 467. In assessing the voluntariness of a waiver of one’s Miranda rights, the court considers, in addition to the age, education, and intelligence of the accused, the statements made by interrogating officers and the vulnerability of the defendant. Id. Further, while age and mental capacity are factors to be considered, they alone do not suffice to warrant the suppression of a confession. See Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998).
On appeal, Otis argues that he was fourteen years old at the time he gave his statements and was mildly mentally retarded. He asserts that he was “accosted” by numerous law enforcement officers at his home; he was initially questioned without having been given his Miranda warnings; he was repeatedly questioned over three separate occasions during the evening and early morning hours ofjuly 25-26, 2001; Officer Whitmore, who conducted most of the questioning, was physically much larger than Otis; and Otis was questioned for hours without his mother being allowed in the room. Thus, he claims, his waiver was not voluntary, but was the result of intimidation.
As noted above, the fact that a defendant is young or has a low IQ does not mean that a suspect is incapable of knowingly and intelligently waiving his Miranda rights. In Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998), this court held that Damond Sanford, a sixteen-year-old boy with a full-scale IQ of 67, had knowingly waived his rights when there was testimony that he understood the statements on the waiver form, as well as evidence that Sanford appeared to understand his rights and did not ask officers any questions about the form. Sanford, 331 Ark. at 347. The Sanford court also noted that Sanford’s father was present during the execution of the waiver forms. Id. Given the totality of the circumstances, the court held that the trial court did not err when it found that Sanford had knowingly and intelligently waived his Miranda rights.
Likewise, in Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995), this court held that youth and a low IQ would not render a waiver of rights involuntary where the evidence showed that the waiver was knowing and voluntary. There, appellant Timothy Oliver was fifteen years old at the time of his arrest and had an IQ of 74; there was testimony that he had the “mental age of a twelve-year-old.” Oliver, 322 Ark. at 17. Nonetheless, this court noted testimony from the suppression hearing that the arresting officers had explained the waiver-of-rights form to Oliver, and that Oliver appeared to understand the form. Id. See also Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001) (sixteen-year-old with an IQ of 89 and the reading comprehension of a fifth-grader capable of knowingly and intelligently waiving his Miranda rights); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996) (seventeen-year-old with an IQ of 72 and a third-grade reading level found to have given a knowing and intelligent waiver; the court held that “[a] low score on an intelligence quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights”).
Here, Otis was fourteen years old and was a seventh-grade drop-out. Dr. Christopher Lamps, a child and adolescent psychiatrist, testified that Otis had a functional full-scale IQ of 68 or 69 and had a functional age of nine to twelve years old. However, Agent Newton, who first questioned Otis, testified that he was unaware that Otis was “mentally slow.” Similarly, Agent Beall, who conducted the polygraph examination, testified that he had a mentally retarded child, and was accustomed to interviewing mentally handicapped juveniles, yet he did not perceive that Otis was mentally handicapped. Beall also commented that Otis was able to respond to all of Beall’s questions, and Beall was convinced that Otis understood what they were doing. Agent Whitmore testified that, although he “detected right off the bat” that Otis was “slow,” when he read the Miranda warnings to Otis, Whitmore was careful to explain what the words on the form meant and repeatedly asked Otis whether he understood what he was reading; Otis responded that he did. In addition, Whitmore noted that, after he explained to Otis the meaning of several words on the rights form, Otis did not have any questions. Further, we note that Otis’s mother was present when Otis signed the Miranda waiver form at 12:50 a.m. on July 26. Given the testimony before it, the trial court did not err in concluding that, under the totality of the circumstances, Otis’s signing of the Miranda waiver form was free from coercion and with a full awareness of the nature of the right being waived and the consequences of the decision to abandon it.
Otis’s third argument pertaining to his motion to suppress is that the trial court erred in finding that the officers did not violate Ark. R. Crim. P. 4.1. Rule 4.1, governing arrests without a warrant, provides in relevant part as follows:
A person arrested without a warrant shall not be held in custody unless a judicial officer determines, from affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person has committed an offense. Such reasonable cause determination shall be made promptly, but in no event longer than forty-eight (48) hours from the time of arrest, unless the prosecuting attorney demonstrates that a bona fide emergency or other extraordinary circumstance justifies a delay longer than forty-eight (48) hours. Such reasonable cause determination may be made at the first appearance of the arrested person pursuant to Rule 8.1.
Rule 4.1(e).
Otis argues that there was an unreasonable delay in the probable cause determination, because he was arrested without a warrant, yet was held in custody from 9:00 p.m. on July 25, 2001, until the prosecuting attorney filed a criminal information, accompanied by a bench warrant and finding of probable cause signed by a district judge, at 4:02 p.m. on July 27, 2001. Otis further argues that a probable cause determination could have been made as early as 1:20 a.m. on July 26, 2001, when Agent Newton obtained a search warrant for the residence of Lloyd O’Neal, whom Otis had implicated in the shooting. He suggests that the delay in determining probable cause was occasioned by a desire to uncover additional evidence to support the arrest, and for that reason, the delay was unreasonable. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
This court has held that Rule 4.1 is mandatory and requires that an arrestee be taken before a judicial officer for a reasonable cause determination within forty-eight hours of arrest. See Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001) (citing County of Riverside v. McLaughlin, supra). In McLaughlin, the Supreme Court held that, while “a jurisdiction that provides judicial determination of probable cause within forty-eight hours of arrest will, as a general matter, comply with the promptness requirements of Gerstein [v. Pugh, 420 U.S. 103 (1975)],” it does not automatically follow that a probable cause determination will pass constitutional muster simply because it is provided within forty-eight hours. McLaughlin, 500 U.S. at 56. The Court wrote as follows:
Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
Id. at 56-57.
A probable cause determination was made in this case within forty-eight hours, as required by Rule 4.1. Nonetheless, Otis argues that the determination was unreasonably delayed due to the investigating officers’ desire to find more evidence. However, as noted above, the McLaughlin court condemned as unreasonable a search for additional evidence only when the evidence is being sought in order to justify the arrest. Here, because Otis confessed to the shooting shortly after being brought to the police station, the officers already had a sufficient amount of evidence to justify his arrest. As such, there was no unreasonable delay and no violation of Rule 4.1.
Otis’s final argument regarding the trial court’s denial of his motion to suppress is that the trial court erred in finding that the officers did not violate Ark. R. Crim. P. 8.1. Rule 8.1 provides that “[a]n arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” Otis was arrested on Wednesday, July 25, 2001, but was not taken before a judicial officer for his first appearance until Monday, July 30. He asserts that the only reason for the delay in his first appearance was the State’s ongoing investigation into the murder.
This Court has never adopted a specific time limit for measuring Rule 8.1 violations. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000); Landrum v. State, 328 Ark. 361, 944 S.W.2d 101 (1997) (citing Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)). Instead, when Rule 8.1 is alleged to have been violated, the court in Duncan set out a three-part test to determine whether a statement given during a period of delay must be suppressed: 1) whether the delay was unnecessary; 2) whether the resulting evidence was prejudicial; and 3) whether the resulting evidence was reasonably related to the delay. Duncan, 291 Ark. at 529; see also Britt v. State, 334 Ark. 14, 974 S.W.2d 435 (1998). The defendant has the burden of proving each prong of the Duncan test. Arnett, 342 Ark. at 75.
Clearly, the statements Otis gave during the period of delay were prejudicial, as he implicated himself in the Smith murder. However, he must also prove that the delay was unnecessary and that the resulting evidence was reasonably related to the delay. Otis argues that the delay was unnecessary because the circuit court was in session, conducting a civil trial, on Thursday, July 26, 2001. However, the State points out that, on July 26, Otis had asked to be administered a polygraph test, and the State was attempting to bring in a polygraph examiner at that time. Thus, the delay on July 26 was a result of Otis’s own request, and was not an unreasonable delay occasioned by the State.
In addition, Otis must also prove that his statements were reasonably related to the delay. This court has stated that statements are reasonably related to a delay “if it reasonably appears the delay contributed to obtaining the confession.” Arnett, 342 Ark. at 76; Britt, 334 Ark. at 155 (quoting Duncan, 291 Ark. at 530, 726 S.W.2d at 657). In determining whether a statement obtained from the accused was reasonably related to the delay, this court will consider the following factors: 1) any proof that the delay was for the purpose of obtaining a confession; 2) the frequency of police interrogation; 3) whether the accused was held incommunicado; and 4) the passage of time. Arnett, 342 Ark. at 76.
Otis argues that his statements were causally related to the delay, because it is “unlikely” that, had he been appointed counsel by a judge at a first appearance held on July 26, he would have made any of the statements he gave after July 26. However, as noted above, it was not unreasonable to have not afforded him a first appearance on July 26. He makes no argument that he could have had his first appearance on Friday, July 27, and by that time, he had already confessed to the murders. Thus, there was no proof that the delay was for the purpose of obtaining a confession. In addition, although the police questioned him several times after arresting him, there was testimony that his grandmother, mother, and step-father were present at the police station, and that Otis sat with them part of the time; he was not held incommunicado. In sum, we cannot say that the trial court erred in finding that there had been no violation of Rule 8.1.
In his second major point on appeal, Otis argues that the trial court erred in allowing the State to display and admit into evidence a plaque depicting the victim in his military uniform and describing his military career. During Otis’s opening statement, the prosecuting attorney placed a plaque containing a picture of the victim, Barney Smith, in a chair at counsel table. Otis objected, noting that the picture had not been admitted into evidence. The State replied that it “just want[ed] to make sure [the jurors] realize this is about two people, not just Kirk Otis.” The State then turned the photo around so it faced the bench. Otis later renewed his objection and moved for mistrial, contending that the photo was still sitting at counsel table, although it had not been introduced into evidence. The trial court denied the motion.
On appeal, Otis argues that it was improper to display an item to the jury if it has not been admitted into evidence. See Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970) (declining to condone the practice of displaying exhibits to the jury prior to admission into evidence). He acknowledges that the trial court has the discretion to determine the relevancy of evidence and its admissibility, and that this court will not overturn such a decision absent a clear abuse of that discretion. See Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001).
We conclude that, while we do not condone the display of the plaque, any error that may have resulted from the displaying of the plaque was harmless. See Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003) (even when a trial court errs in admitting evidence, when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction); Cobb v. State, 340 Ark. 240, 12 S.W.3d 395 (2000) (any error in admitting allegedly irrelevant testimony that the defendant loved music was harmless where the defendant admitted killing the victim and evidence supported the conviction). Here, the evidence of Otis’s guilt, in the form of his properly admitted confessions, was overwhelming, so any error that may have arisen from the introduction of the plaque was harmless.
Although it is not raised or argued by either party, we also point out that Otis’s spontaneous confessions to Agent McLemore and Jackie Wilson were properly admitted. This court has held that it is “well settled that a suspect’s spontaneous statement, although made in police custody, is admissible against him or her.” Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003) (holding that a confession made in response to a police officer’s asking, “What’s up?” was admissible because it was not made in the context of a police interroga tion). Such a statement is admissible “because it is not compelled or the result of coercion under the Fifth Amendment’s privilege against self-incrimination.” Id. at 172. See also State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005) (citing Rhode Island v. Innis, 446 U.S. 291 (1980). Otis’s statements to McLemore and Wilson were purely spontaneous and were not the result of an interrogation or any kind of police coercion. Therefore, the trial court did not err in denying Otis’s motion to suppress these statements. | [
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PAUL E. DANIELSON, Associate Justice
|!Appellant Southwest Power Pool, Inc. (“SPP”), appeals an order of summary judgment entered in favor of appellee Kan-is and Denny Roads Suburban Water Im provement District No. 349 of Pulaski County (“the District”). On appeal, SPP argues that the Pulaski County Circuit Court erred in granting summary judgment on SPP’s challenge to the reasonableness of an assessment of benefits and accompanying levy of taxes. We reverse and remand.
The District was formed in 2000 for the primary purpose of constructing water lines and related improvements to serve real properties within the District. The District was financed by bond issues; in order to repay its debts and fund general operations, the District ^assessed the benefits accrued to each real property within the District resulting from the construction of the.water lines, and levied taxes accordingly. The District completed construction of the water lines in 2006. At that time, the District conveyed and dedicated its easements and water lines to Central Arkansas Water (“CAW”), which has owned, operated, and maintained the easements and water lines since that time.
In 2010, SPP purchased 24.04 acres of unimproved real property lying within the District. SPP dedicated 3.2 acres to the City of Little Rock and constructed its commercial facility on the remaining 20.84 acres. This property had originally been part of an 80-acre tract, which was initially assessed in the amount of $138,078 in 2003. This assessment resulted in an annual levy of approximately $3,600, which was paid without protest from 2003 through 2012, and which SPP conceded was fair. In 2013, the District reassessed SPP’s property, determining that the assessed benefits to the 20.84 acres alone totaled $2,621,954. This assessment resulted in an annual levy of $60,653.
SPP appealed the 2013 reassessment to the District’s board of equalization, composed of its assessor and commissioners. The reassessment was confirmed. SPP then filed its complaint in circuit court, asserting that the reassessment was wrong as a matter of law and as a matter of fact. Specifically, SPP argued that an assessment was supposed to represent the | (¡benefit to its property resulting from the District’s construction of water lines, which had been completed in 2006, and that the subsequent construction of its facility on the property would not have changed that value. SPP also alleged that it had chosen not to use the District’s water lines and instead connect to lines that had already been constructed by the owner of the original 80-acre tract and CAW. Thus, it contended, the presence of the District’s water lines near its property was of no benefit to it, and the assessment should have been reduced to zero. For the same reason, SPP argued that it was exempt from assessment under Arkansas Code Annotated section 14-92-225(c)(2). SPP maintained that the reassessment violated procedural and substantive due process and equal protection and constituted a taking without just compensation. Finally, SPP alleged that the District had failed to follow statutory procedures for reassessment, including those having to do with notice.
The District answered and filed its motion for summary judgment. The District disagreed with SPP’s interpretation of section 14-92-225(c)(2), arguing that it did not exempt SPP from assessment and that it allowed the District to assess properly in proportion to the benefit conferred. The District also argued that it had provided proper notice to SPP and that the reassessment was reasonable. In response to the motion for summary judgment, SPP submitted the affidavit of Ray Owen, Jr., a licensed attorney and registered professional engineer who had experience serving as an assessor for over thirty improvement districts over a period of more than four decades. Owen opined that the reassessment of SPP’s property was improper because there was little to no benefit accruing to the property as a result of the District’s earlier construction of water lines. Additionally, Owen questioned the assessor’s 1 ¿calculations, which apparently valued SPP’s land and -the facility built upon it at. $0.00 prior to the District’s construction of its water lines. Owen also referenced minutes of the District’s commissioners’ meetings and emails between the District’s assessor and commissioners, opining that the commissioners’ input on the SPP reassessment was inappropriate and questioning whether the reassessment was independently made by the assessor as required by statute.
Following further briefing and two hearings, the circuit court granted the District’s motion for summary judgment on all issues except notice. The court found that a material physical change in property after an original assessment is a basis for reassessment and that all ¡assessments , and reassessments are presumptively reasonable (citing Sugarloaf Dev. Co., Inc. v. Heber Springs Sewer Improvement Dist., 34 Ark. App. 28, 805 S.W.2d 88 (1991), and Kelley Trust Co. v. Paving Improvement Dist. No. 47 of Ft. Smith, 185 Ark. 397, 47 S.W.2d 569 (1932)). The court concluded that SPP’s connection to a CAW line did not exempt it from assessment under section 14-92-225(c)(2); rather, SPP’s “alternative water source is not supposed to be taken into consideration at all.” In addition, the court determined that the reassessment was not void because of the communications between the District’s commissioners and its assessor. SPP filed a motion for reconsideration, which was denied. Following a bench .trial on the issue of the sufficiency of the 2013 notice of reassessment, the | ¡¡circuit court entered a final order granting judgment in favor of the District. SPP filed a timely notice of appeal.
SPP’s appeal challenges the circuit court’s entry of summary judgment in favor of the District. The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. See,, e.g., Anderson’s Taekwondo Ctr. Camp Positive, Inc. v. Landers Auto Group No. 1, Inc., 2015 Ark. 268, 2015 WL 3814288. A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. See id. The burden of proof shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment, and the opposing party must demonstrate the existence of a material issue of fact. See id. After reviewing the undisputed facts, the circuit court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. See id.
|fiOn appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. See id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. See id.
SPP raises four points on appeal: (1) that the circuit court erred in granting summary judgment in favor of the District; (2) that the District’s commissioners improperly assumed the role of the assessor, which violated statutory guarantees and denied SPP due process; (3) that the amount of the reassessment and the erroneous way in which it was determined are very much in dispute and present issues for trial; and (4) that any ambiguity in section 14-92-225(c)(2) is required to be resolved in favor of the taxpayer. Our analysis begins and ends with SPP’s fourth point on appeal because it raises a threshold issue and is dispositive.
SPP argues that section 14-92-225(c)(2) prohibits any assessment of its facility. Section 14-92-225(c) provides as follows:
(1) The assessment 'shall embrace not merely the lands, but shall embrace all railroads, tramroads, telegraph lines, telephone lines, pipelines, and other improvements on real estate that will be benefited by the acquiring or making of the improvement.
(2) No assessment shall apply against any pipelines or other improvements which are extensions of or connected to the pipeline distribution system or other improvements within any city adjacent to the district.
17Ark.Code Ann. § 14-92-225(c) (Repl. 1998). The parties have totally opposing views concerning the meaning of the plain language of this statute. According to SPP, the statute can only mean that its facility cannot be assessed because it is an improvement that is connected to a CAW line within the City of Little Rock, which is adjacent to the District. The District reads the statute differently, contending that subsection (c)(1) specifically requires the assessment to embrace SPP’s facility and that subsection (c)(2) specifically excludes from consideration SPP’s connection to a CAW line.
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. We are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. See id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. 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. It is axiomatic that this court strives to reconcile statutory provisions to make them consistent, harmonious, and sensible. See id.
We find SPP’s interpretation of the plain language of section 14-92-225(c) to be correct. It seems that the parties’ disagreement stems from confusion over the meaning of the word “improvement” within the statute. Section 14-92-225 as a whole makes clear that the |sbenefits to be assessed and taxed are those arising from the improvements constructed by the improvement district, not those arising from improvements constructed on the taxpayer’s real property by the taxpayer. For example, subsection (a)(1) states that the assessor shall “assess the benefits which will accrue to the real property within the district from the acceptance of the gift of improvement or facilities, the purchase of the improvement or facilities, or the construction of the improvement or facilities” that the district’s board of commissioners has voted to accept, purchase, or construct. Ark.Code Ann. § 14-92-225(a)(l). Subsection (a)(2) states that the assessor will assess “all benefits that will accrue to the landowners of the district by reason of the acceptance,- purchase, or construction of the proposed improvement or facilities, sometimes referred to as ‘improvement.’ ” Ark.Code Ann. § 14-92-225(a)(2). Subsection (b) describes the process to be undertaken by the assessor: he or she shall determine the “Assessed Value of Lands Prior to Improvements” and the “Assessed Value of Lands After Improvements,” and “[i]f the assessed value of land after improvements is greater than the assessed value of land before improvements ... then the difference between the two shall be the assessed benefits that will accrue to each tract by reason of the improvement.” Ark.Code Ann. § 14-92-225(b)(1) & (2)(A)(i).
Subsection (c) is somewhat different in that it uses the word “improvement” to refer to both improvements made by the improvement district and those made by the taxpayer. We read subsection (c)(1) to mean that an assessment shall take into account the land'plus any improvements on the land constructed by the taxpayer— such as SPP’s ’ commercial facility — that will be benefited by the construction of improvements by the improvement | (¡district. It follows that the word “improvements” appearing in the first clause of subsection (c)(2) would' refer to those improvements made on the land by the taxpayer — again, such as SPP’s commercial facility. Thus, “[n]o assessment shall apply against” SPP’s facility because it is “connected to the pipeline distribution system” within the City of Little Rock. Ark. Code Ann. § 14-92-225(c)(2).
The District’s interpretation of subsection (c)(2), which the circuit court accepted as correct, does not comport with the plain language of the statute. If the General Assembly had intended to say that a taxpayer’s connection to an adjacent city’s waterworks system could not be considered in the assessment process, it presumably would have said that. The “[n]o assessment shall apply” language simply does not lend itself to that interpretation. In addition, as SPP points out, any ambiguity in the statute must be resolved in favor of it as the taxpayer. See, e.g., Cent. & S. Cos., Inc. v. Weiss, 339 Ark, 76, 3 S.W.3d 294 (1999).
Moreover, we are unpersuaded by the District’s argument that section 14-92-225(c)(2) evidences the General Assembly’s intent to protect improvement districts from encroachment by neighboring municipalities. Section 14-92-219 sets- out the purposes for which a suburban improvement district may be organized, including to construct a waterworks system and “to operate and maintain any such waterworks system it may purchase, construct, or own.” Ark.Code Ann. § 14-92-219(1) (Supp. 2015). ■ It is clear that some suburban improvement districts, including the District involved here, are organized for the purpose of constructing a waterworks system or related improvements, but not for the purpose of operating or maintaining that system. Here, as noted above, the District conveyed all of its water lines and |ineasements to CAW upon completion of construction, and CAW has owned, operated, and maintained, the lines since then. The District is not, and has never been, a source of water. Its water lines were apparently always intended to tie onto CAW lines. Section 14-92~225(c)(2) covers this precise situation, providing that improvements attached to an adjacent city system are not subject to assessment.
For these reasons, we hold that SPP’s commercial facility, an improvement on its property that is connected to the City of Little Rock’s waterworks system, cannot be assessed. Accordingly, the 2013 reassessment, and the 2014 and 2015 reassessments that followed, are invalid. We reverse the circuit court’s grant of summary judgment and remand for entry of an order consistent with this opinion.
Reversed and remanded.
. According to SPP, the 2003 assessment resulted in an annual levy of $3,492; according to the District, the 2003' assessment resulted in an annual levy of $3,600.
. Pursuant to Arkansas Code Annotated section 14-92-228(c)(l) (Repl. 1998), the remedy against the levy of taxes by a suburban improvement district shall be by suit in chancery.
. The circuit court denied the District’s motion for summary judgment on the issue of notice and also denied a subsequent motion for summary judgment on the issue of notice filed by SPP, reserving this issue for trial.
. SPP’s property was also reassessed in 2014; that reassessment was unchanged from the 2013 reassessment. SPP challenged the 2014 reassessment, and the board of equalization confirmed it. SPP filed an amended complaint contesting the 2014 reassessment, and the District filed an amended motion for summary judgment to address it. The- - circuit court’s order granting summary judgment applied to the 2014 reassessment as well as the 2013 reassessment. Following entry of the summary judgment, SPP's property was again reassessed in 2015, with the assessed benefit remaining the same as in the 2013 and 2014 reassessments. SPP challenged the 2015 reassessment, the board of equalization confirmed it, and SPP filed a second amended complaint contesting it. The District renewed its motion for summary judgment, asking the circuit court to apply its earlier ruling granting summary judgment to the 2015 reassessment as well. This motion was granted.
. Because the issue is likely to arise on remand, we note that the 2003 assessment amount covered the entire 80-acre tract, of which SPP now owns only 20.84 acres. See, e.g., Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467 (reversing grant of summary judgment and addressing remaining arguments that were likely to arise again on remand). | [
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DAVID M. GLOVER, Judge
| Mames McClain appeals the May 7, 2015 revocation of his probation. As his sole point of appeal, he challenges the sufficiency of the evidence supporting the revocation. We affirm.
On February 22, 2011, McClain was charged with felony nonsupport in Case No. CR2011-212-1. He entered a guilty plea to one count of nonsupport and was sentenced to 120 months of supervised probation. He was subsequently charged with the offense of second-degree battery in Case No. CR2013-1606-1; he entered guilty pleas, both to the battery charge (CR2013-1606-1) and to a petition to revoke the probation he had received in the nonsupport case (CR2011-212-1). By sentencing order entered on December 4, 2013, on revocation of the felony nonsupport offense, he received 120 months of suspended imposition of sentence, and on the second-degree battery offense, he received 72 months’ probation. Both his suspended, sentence and probation included in the terms and conditions that he commit no new violations of the law.
|2On March 27, 2015, the State filed a petition to revoke in both cases, alleging McClain had violated the terms and conditions of his suspended sentence and probation by failing to appear for trial in Washington County, Arkansas, and by being convicted of one felony offense and three misdemeanor criminal offenses in the State of Oregon.
At the May 6, 2015 revocation hearing, the State introduced evidence that McClain had failed to appear as ordered for a trial in Washington County, Arkansas, on July 7, 2014, and evidence showing that McClain had been convicted of four offenses in Lane County, Oregon. McClain then testified he had a medical condition that often required hospitalization and that he was in the hospital in Springdale, Arkansas, on July 7, 2014, when he was supposed to be in court. He claimed he called the court from the hospital to tell someone he would not be able to make it. He further testified he had appealed the Oregon convictions and they were still pending. McClain did not introduce any other evidence to support his own testimony.
Following the hearing, the trial court concluded McClain had violated the terms of his probation and his suspended sentence by committing new criminal offenses and by failing to appear for court. The trial court explained in pertinent part.
5. That the State presented exhibits showing that while Defendant was subject to these conditions, the Defendant pled guilty to a Felony criminal offense and three Misdemeanor criminal offenses in the State of Oregon, and additionally, presented an exhibit showing Defendant Failed to Appear for Court for Trial, C Felony, in the State of Arkansas.
6. That Defendant took the stand to testify on his behalf and admitted that he was the same person who was shown in all of these exhibits. The Defendant also made the assertion that he was in a hospital at the time of the Failure to Appear but could not state which hospital and had no other proof that he was actually in any hospital at the time of his Failure to Appear.
|s7. That this Court found the State proved its case by the Preponderance of the Evidence that Defendant was in violation to the terms of his Probation and his Suspended Sentence for committing new criminal offenses and for failing to appear for court. This finding was based on the exhibits received and the testimony of the Defendant.
The trial court revoked both McClain’s probation and suspended sentence and sentenced him to six years on the second-degree battery and ten years on the nonsupport, to be served concurrently in the Arkansas Department of Correction.
The State must prove the violation of a probation condition by a preponderance of the evidence. Green v. State, 2015 Ark. App. 291, 461 S.W.3d 731. However, the State need only prove a defendant violated one probationary term or condition before a circuit court may revoke probation. Id. We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence. Id. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony. Id.
As his sole point of appeal. McClain contends there was insufficient evidence to support his revocations. He argues he provided a reasonable excuse for not appearing in court on July 7, 2014, because he was hospitalized in Springdale, Arkansas, and unable to attend court.
McClain does not challenge the trial court’s alternative basis for revocation, i.e., his convictions from the State of Oregon. This fact alone allows us to affirm the revocations without addressing the merits of his argument. Morgan v. State, 2012 Ark. App. 357, 2012 WL 1869540. Even if we were to address the merits of his argument, we would find no clear error in the trial ^court’s findings. McClain provided no evidence to the trial court beyond his own bare assertion he was in the hospital when he was supposed to appear in court in Washington County. Matters of credibility are for the trial court. Green, supra. The trial court clearly did not believe McClain’s account of why he did not appear for trial, and he provided no evidence beyond his own testimony to support his excuse for not appearing.
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Kinard and Hoofman, JJ., agree. | [
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Jim Gunter, Justice.
This appeal arises out of a dispute of coverage under an accidental-death policy. Deborah McQueen filed a complaint, requesting an injunction against Liberty Life Insurance Company. She asked the Circuit Court of Marion County to enjoin Liberty from refusing to pay benefits to her mortgagee, the primary beneficiary under the policy, for the death of her husband, an insured. Liberty responded, denying that benefits were due under the policy and requesting a jury trial. Ms. McQueen filed a motion to strike the demand for a jury trial, which the circuit court granted. Liberty has appealed the circuit court’s order pursuant to Ark. R. App. P. - Civ. 2(a)(4), authorizing an appeal of an order “which strikes out an answer, or any part of an answer, or any pleading in an action.” Id. We dismiss the appeal.
In connection with a 1997 loan and mortgage, appellee, Deborah McQueen, and her husband, Steve McQueen, enrolled as insureds in a group accidental-death insurance plan underwritten by appellant, Liberty Life Insurance Company. The primary beneficiary listed in the policy is FirstMerit Mortgage Corporation, from whom the McQueens borrowed money secured by a mortgage in favor of FirstMerit on property owned by the McQueens in Marion County. Under the terms of the policy, in the event of the accidental death of one of the insureds, Liberty agreed to pay benefits to FirstMerit equal to the balance of the mortgage loan at the time of death.
On June 26, 2002, Steve McQueen drowned. Ms. McQueen provided proof of Mr. McQueen’s death to Liberty and made a demand for payment of benefits. Liberty denied the claim, and Ms. McQueen filed a complaint against Liberty and First-Merit, alleging that Liberty breached its contractual obligation to pay benefits to FirstMerit to satisfy the mortgage. She claimed that she had suffered damages in the amount of the balance of the indebtedness due at the time of her husband’s death, or $45,708.14, and requested the court to grant injunctive relief against Liberty, “enjoining it from refusing to pay” to FirstMerit the amount of the secured indebtedness owed by the McQueens to FirstMerit and to pay the balance of the $45,708.14 to her.
FirstMerit filed a general denial requesting the court to dismiss the complaint. It did not seek, by cross-claim, a judgment for the policy proceeds. Liberty filed an answer denying that it owed anything because of an exclusion in the policy. In its answer, Liberty requested a jury trial. Ms. McQueen filed a motion to strike Liberty’s jury request, which the circuit court granted. Liberty appealed the court’s order, claiming it is entitled to a jury trial.
Ms. McQueen has filed a motion to dismiss this appeal, arguing that the order striking Liberty’s demand for a jury trial was not a final order and therefore not appealable. Liberty responded by arguing that under the plain language of Ark. R. App. P. — Civ. 2(a)(4) (hereinafter, Rule 2(a)(4)), an order which “strikes out. . . any part of an answer” — as did the order in this case — is appealable. Ms. McQueen admits that Rule 2(a)(4) provides that an appeal may be taken from “[a]n order which strikes out an answer, or any part of an answer, or any pleading in an action.” She argues, however, that a demand for a jury trial is not properly “part of an answer” for purposes of Rule 2(a)(4), but is merely an endorsement upon an answer. Therefore, the trial court’s order granting her motion to strike Liberty’s jury demand is not an appealable order within the ambit of Rule 2(a)(4).
We have long held that, to be appealable, an order must be final. See Carquest of Hot Springs, Inc. v. General Parts, Inc., 361 Ark. 25, 204 S.W.3d 53 (2005); Ark. R. App. P. - Civ. 2(a)(1). This requirement is a jurisdictional requirement. Fisher v. Chavers, 351 Ark. 318, 320, 92 S.W.3d 30, 31 (2002) (citing Wilburn v. Keenan Cos., Inc., 297 Ark. 74, 759 S.W.2d 554 (1988)). The purpose of the finality requirement is to avoid piecemeal litigation. Id. (citing Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992)). An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Id. While there are exceptions to this finality requirement set forth in Ark. R. App. P. - Civ. 2(a), Ms. McQueen argues that a demand for a jury trial, even when requested in an answer, is not “part of the answer” for purposes of the exception set forth in Rule 2(a)(4). We agree.
A party’s request for a jury trial is governed by Rule 38 of the Arkansas Rules of Civil Procedure. Rule 38 states in relevant part as follows:
(a) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the clerk a demand therefor in writing at any time after the commencement of the action and not later than 20 days prior to the trial date. Such demand may be indorsed upon a pleading of the party.
Ark. R. Civ. P. 38(a) (emphasis added). “Indorse” generally means to sign on the back, as in negotiating an instrument, or to approve of something. See Black’s Law Dictionary 789 (8th ed. 1999). The Webster’s New International Dictionary includes the definition “to inscribe something... on or in addition to (a document, esp. an official document).” Webster’s New International Dictionary 845 (2nd ed. 1953).
An answer is “[a] defendant’s first pleading that addresses the merits of the case, usu. by denying the plaintiffs allegations. An answer usu. sets forth the defendant’s defenses and counterclaims.” Black’s Law Dictionary 100 (8th ed. 1999). While a jury demand may be included in the body of a pleading and thereby be considered by the circuit courts to meet Rule 38’s requirement that the demand be “indorsed upon a pleading,” we hold that the demand does not “address the merits of the case” and, therefore, is not “part of an answer” for purposes of circumventing the final-order requirement to appeal. Interpreting the language in Rule 2(a)(4) otherwise would cause the circuit court’s denial of a jury demand to be appealable as an interlocutory appeal only if the demand were included in an answer. Thus, a plaintiff could never bring an interlocutory appeal of the denial of his request for a jury trial, nor could a defendant, who simply requested a jury trial pursuant to Rule 38 “by filing with the clerk a demand therefor in writing.” We do not interpret Ark. R. App. P. - Civ. 2(a) to permit such an inconsistency. Either a party may bring an interlocutory appeal from the denial of a jury demand, or he may not. We hold that he may not. Moreover, an order denying such a request does not “strike . . . part of an answer[,]” but simply denies the defendant’s request for a jury trial.
Appeal dismissed.
See also McClendon v. Wood, 125 Ark. 155, 188 S.W. 6 (1916) (We rejected a party’s attempt to bring an interlocutory appeal of the denial of a jury trial by way of a writ of prohibition. We held that a writ of prohibition would not lie for the denial of a jury trial, stating “that the act of the court in proceeding to trial without allowing a jury, if erroneous, constitutes only an error or an irregularity which must be corrected by appeal.”) | [
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Dissent only.
Tom Glaze, Justice,
dissenting. This court is incredibly wrong, and its decision totally ignores the concept known as due process. Any graduating law-student knows that a court cannot find a party in criminal contempt and then incarcerate that person for one year. That law student has also learned that a contemnor is entided to a jury trial before a one-year sentence can be imposed. Ms. Jennifer Linder, now Johnson, indisputably was given a one-year sentence by the court, not a jury. See Anderson v. State, 353 Ark 384, 108 S.W.3d 592 (2003) (failure to provide a criminal defendant with a jury trial is an error so serious that the circuit court has an obligation to intervene, and this court may consider the issue on appeal without an objection below); see id. at 412 (Glaze, J., concurring) (violation of right to jury trial can constitute “fundamental” or “structural” error).
Jennifer also is denied due process by this court’s refusing to follow precedent. In Johnson v. Johnson, 343 Ark 186, 33 S.W.3d 492 (2000), our court stated the following:
[CJertiorari is available in the exercise of our superintending control over a tribunal, when that tribunal is proceeding illegally and where no other mode of review is provided. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994).
In the Bates case, our court held that the remedy of an appeal was useless when contemnors had to remain in jail pending a show-cause hearing. In that case, we further] held that certiorari was the proper remedy. The same is true in the instant case. The remedy of direct appeal would be useless to the contemnors. Without this court’s temporary stay, they might still be incarcerated.
Johnson, 343 Ark. at 195-96 (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, 92 S.W.3d 671 (2002).
In summary, this court shuns its prior case law by denying petitioner Jennifer Linder’s right to a temporary stay, which would allow her to pursue her right to address and question the trial court’s rulings against her by certiorari. Court members are concerned about the possibility that Jennifer might take the parties’ children and abscond from the state. In fact, the trial court (or this court) has the wide discretion and authority to deny Jennifer any visitation or contact with the two children until this criminal contempt proceeding is resolved. Apparently, this court has no confidence in the trial court or law enforcement to enforce the court’s orders, not to mention the father’s ongoing tenacity and vigilance to keep the children from Jennifer.
For the above reasons, I vigorously dissent. I would expedite this case and grant the petitioner’s motion for a temporary stay. The trial court’s order to eliminate any visitations or contact with the children should be continued until the contempt matter is resolved. As of today, Jennifer has been incarcerated thirty-three days. The majority action giving the parties seven days to file briefs only assures this matter will languish at least another two weeks before we can decide this case.
Whether the petitioner is as “bad” a mother as she is portrayed by her former husband and others, she is still entitled to due process in this criminal proceeding. Our prior case law says so, and we should follow that precedent. When dealing with contempt appeals, I know of no case (at least until now) in which we have failed to enter a temporary stay releasing the contemnor from jail until the contempt matter had been decided by this court. It is my view of the law and facts in this case, convicted felons get far more due process than Jennifer has received from our courts. | [
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Donald L. Corbin, Justice.
Appellant Vassie Gilbert appeals the order of the Union County Circuit Court granting temporary custody of her five-year-old son to the child’s biological father, Appellee Damarcus Moore. For reversal, Appellant argues that the trial court lacked jurisdiction to hear Appellee’s petition for custody because he had not been previously established as the child’s father. She argues that under Ark. Code Ann. § 9-10-113(b) (Supp. 2005), Appellee lacked standing to petition for custody prior to a judicial determination of paternity. This issue is one of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We cannot reach the merits of this issue, however, because the order appealed from is not final. We thus dismiss the appeal.
The record in this case reflects that on November 19, 2004, the trial court entered an emergency ex parte order granting temporary custody to Appellee. The order set a hearing date for November 23. During the hearing, the trial court heard testimony from both Appellee and Appellant, as well as several other witnesses. At the hearing’s conclusion, the trial court ruled from the bench that Appellee was established to be the biological father of the child. It then ordered that custody of the child continue with Appellee, pursuant to the ex parte order, and that Appellant be granted weekend visitation. Flowever, the trial court made it clear that the award was merely temporary until the case could be heard on the merits:
I signed an Ex Parte Order a few days ago which placed the temporary custody in the Plaintiff, the father. I really don’t know where this child is better offlong term. I guess that’s something that is going to have to be resolved at a later date. I presume both of these parties want long term custody of this child. I may or may not be right about that. In the meantime I’m going to leave the Ex Parte Order in effect; however, the child shall spend each weekend with his mother beginning 6:00 p.m. on Friday and ending on 6:00 p.m. on Sunday. And when counsel and the parties are ready for this case to be heard in its entirety on its merits thoroughly by myself or somebody, probably somebody else, and hopefully make the right decision on where this child should grow up, then that’s what will happen. [Emphasis added.]
The trial court then instructed Appellee’s attorney that the order should reflect that “on a temporary basis the child should stay with the father during the week and the mother during the weekends until this case can be resolved on its merits.” (Emphasis added.)
A written order was entered on December 17, 2004. The order is styled as temporary and provides that the ex parte order is to'remain in effect, placing custody of the child with Appellee “at this time.”
Although neither party has raised the issue on appeal, the question whether an order is final and therefore subject to appeal is a jurisdictional one that this court will raise on its own. See Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); Farrell v. Farrell, 359 Ark. 1, 193 S.W.3d 734 (2004). Final orders of custody are specifically appealable under Ark. R. App. P.-Civ. 2(d). Whether a custody order is final or temporary is not dependent upon the style of the order. Indeed, both this court and our court of appeals have consistently held that custody orders styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof. See Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986); Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993).
We conclude that the order appealed from in this case is not’ a final custody order. The order is not only styled as temporary, it plainly provides that custody is to remain with Appellee “at this time.” This language coupled with the trial court’s remarks from the bench demonstrate that the issue of custody has yet to be determined on its merits and that the parties have not completed their proof on the issue. Accordingly, the order appealed from is not final under Rule 2(d), and we must dismiss the appeal. | [
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PAUL E. DANIELSON,
Associate Justice
| -[Appellant David Van Winkle was convicted in the Polk County Circuit Court of kidnapping, aggravated residential burglary, first-degree stalking, third-degree battery, first-degree assault, and first-degree terroristic threatening. He was sentenced to a total of fifty-two years’ imprisonment, which included a twelve-year firearm enhancement. The Arkansas Court of Appeals affirmed. Van Winkle v. State, 2014 Ark. App. 591, 445 S.W.3d 542. Van Winkle subsequently filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015). The circuit court denied the petition without a hearing. Van Winkle now appeals, arguing four points in support of reversal: (1) that his trial counsel was ineffective for failing to present his only viable defense, which is'that he was actually innocent; (2) that his trial counsel was ineffective for failing to move for a change of venue; (3) that his sentence for employing a firearm in the commission of an offense is void as both ^structural error and ineffective assistance, of trial counsel; and (4) that the circuit court erred in denying his request for a hearing. We affirm the denial of postconviction relief.
In order to assess Van Winkle’s ineffective-assistance arguments, some discussion of the underlying facts is necessary.' Van Winkle was a dentist practicing in Mena; the victim in this case, M.O., was one of his patients. According to her testimony, Van Winkle extracted ■ two of-her'teeth and gave her a prescription for hydroeodone. She was concerned about the prescription because she had a history of drug addiction and was participating in drug court at the time. M.O.’s use of the hydroeodone “start[ed] to get out of hand” after the first extraction. She and Van Winkle discussed hiding pills from her probation officer, and he offered to give her refills as needed in order to ensure that her “pill count” was acceptable. After the second extraction, Van Winkle told M.O. that her probation officer had come by his office to look at her file. The probation officer had also asked to see' Van Winkle’s ledger, and Van Winkle offered to meet with M.O. in person to discuss that. They met- once at M.O.’s home and three times at Van Winkle’s home in order to get their “stories straight,”
■ On the last occasion, Van Winkle asked M.O. how important it was that her’ probation officer not see the real ledger. She responded that it was “pretty damned important,” and he wondered “what would [she] be willing to do in order to keep that fi’om happening.” Van Winkle told M.O. that he would make sure that she never saw her husband or her child again and that she would go to prison for a really long time if she did not give him a couple hours of her time. He then forced her to perform oral sex on him.
LA week later, M.O. called Van Winkle’s office and obtained another hydroeodone refill fi’om his "staff. Van Winkle sent M.O. several text messages that night while she was at work, inquiring about her pain and making arrangements for future refills. M.O. testified that she left work at approximately 12:30 a.m., gave a coworker a ride home, and then drove to her home in Hatfield. She walked in her front door and immediately went to turn on a light that she usually left on while she was at work. She then heard a bedroom door creak and turned around to see Van Winkle standing there, pointing a pistol at her. He tackled her to the ground, wrestled her arms behind her, zip tied her wrists behind her back, and forced her face-down over an ottoman. M.O. stated that she was able to flip over on her back and break the zip ties. ■ She started “scratching and fighting” and begged him to wear a condom. Van Winkle pulled a screwdriver out of his back pocket and hit her over the eye with it. He told her to be still if she ever wanted to see her little boy again. She said that she would do whatever he wanted, and he replied, “I know you will.” He zip tied her wrists again and placed a piece of duct tape over her mouth. He then pulled her up by her shirt collar and told her that they were “going to take, a little walk.” When he opened the door, M.O. was able to break free and run to a neighbor’s home.
The neighbor called 911. M.O.’s husband also contacted law enforcement. He had been in Lowell at the time and was on the phone with M.O. as she drove home from work. He heard her scream in fright shortly after she arrived home, and he then heard what sounded like her phone hitting the floor before the call ended. When law enforcement arrived on the scene, .they observed Van Winkle’s truck parked off the road, approximately 100 yards from [4M.0.’s home. They also saw Van Winkle walking quickly toward his truck, coming from the direction of M.O.’s home; he was carrying a gun in his left hand. Van Winkle did not respond to initial commands to drop his weapon and get on the ground, but he eventually complied and was taken into custody. The gun was loaded.
Police conducted a ■ search incident to arrest and found* a screwdriver in Van Winkle’s right back pocket and two pieces of rope in his left back pocket. Law enforcement also responded to the neighbor’s home, where they found M.O. She was hysterical, her clothing was in disarray, and she had zip ties on both wrists. There were signs of forced entry at M.O.’s home, including removed window screens and pry marks on the front and. back doors. Inside her home, police found her cell phone underneath the couch, one zip tie, a roll of pennies wrapped in duct tape, and signs of a scuffle, including overturned furniture. A piece of duct tape was found in M.O.’s yard, between her home and her neighbor’s home, and a roll of duct tape was recovered from Van Winkle’s residence. In Van Winkle’s truck, police found a cell phone that had been taken apart and a pair of zip ties.
Van Winkle was charged with kidnapping, aggravated, residential, burglary, first-degree stalking, second-degree battery, aggravated assault, and first-degree terroristic threatening. The jury convicted him on all charges, reducing the second-degree-battery charge to third degree and reducing the aggravated-assault charge to first degree. The jury also found that Van Winkle had used a firearm in the commission of all offenses except for the battery; it imposed a twelve-year sentence enhancement for his use of a firearm in the commission of the kidnapping. The twelve-year firearm enhancement and the forty-year sentence for ^aggravated residential burglary were ordered to run consecutively, for a total of -fifty-two years’ imprisonment. On appeal, Van Winkle challenged the sufficiency-of the evidence supporting four of his six convictions: kidnapping, aggravated residential burglary, first-degree stalking, and third-degree battery. Van Winkle, 2014 Ark. App. 591, 445 S.W.3d 542, The court of appeals concluded that each of the challenged convictions was supported by substantial evidence. Id.
On January 15, 2015, Van Winkle filed the instant Rule 37 petition, which raised three issues. First, he argued that he was physically incapable of committing the offenses because he is legally blind without his glasses, deaf without his hearing aids, and has a debilitating back ailment; thus, he contended, his trial counsel was ineffective for failing to present an actual-innocence defense. Second, he argued that his trial counsel was ineffective for failing to file a motion for change of venue because extensive pretrial publicity prevented him from receiving a fair trial in either Polk or Montgomery County. Third, he argued that his trial counsel was ineffective for failing to object to the jury instruction concerning the firearm enhancement, as it did not require proof beyond a reasonable doubt. Van Winkle further contended that the failure to properly instruct the jury was structural error rendering his sentence on the firearm enhancement void. The circuit court issued a letter opinion on February 12, 2015, finding that Van Winkle was entitled to no relief and that a hearing would be unnecessary. The court entered its order denying Van Winkle’s Rule 37 petition on February 18, 2015. In short, the court found that the first two issues concerned matters of | (¡trial strategy, not ineffective assistance of counsel, and that the third issue concerned a trial error that could have been addressed on direct appeal. Van Winkle now appeals.
This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. See, e.g., Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. 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 made. See id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id.
On review of claims of ineffective assistance of counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271. Under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. See id. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Sherman v. State, 2014 Ark. 474, at 2, 448 S.W.3d 704, 708 (per curiam) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).
To satisfy the first prong of the Strickland test, the petitioner must show that counsel’s performance was deficient. See, e.g., Taylor, 2015 Ark. 339, 470 S.W.3d 271. To meet this requirement, a postconviction petitioner must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth I^Amendment to the United States Constitution. See id. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of counsel, which, when viewed from counsel’s perspective, could not have been the result of reasonable professional judgment. See id.
In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in the sentencing. See id. at 5, 470 S.W.3d at 275 (citing Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006)).
Unless a petitioner under Rule 37 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See, e.g., Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). There is, therefore, no reason for á court deciding an ineffective-assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. See id.
I. Actual-Innocence Defense
For his first point on appeal, Van Winkle maintains that his trial counsel was ineffective for failing to pursue an actual-innocence defense. The crux of his argument is that he was 18physically incapable of committing the offenses as M.O. described them. First, he points out that he is legally blind without glasses and that he did not have his glasses when he was arrested; they were later found at his home. He submits that his trial counsel should have elicited the testimony of an optometrist, who would have stated that Van Winkle could not have driven from his home in Mena to M.O.’s home in Hatfield at night without his glasses. Second, he notes that he is almost completely deaf without hearing aids and that he did not have his hearing aids when he was arrested; as with his glasses, they were later ■found at his home. He argues that his trial counsel should have called his employees and others who would have testified that he would not have been able to converse with M.O. during the commission of the crimes as she said he did. -.Third, he asserts that he has a well-documented back problem, which required him to wear a back brace at work and which is so debilitating that he often cannot bend over to tie his own shoes. He maintains that his- trial counsel should have called his personal chiropractor to testify that he would have been physically incapable of tackling M.O. and wrestling her arms behind her back as she described.
Relying on these physical ailments, Van Winkle accuses his trial counsel of failing to present an, altérnative theory of the caSe — specifically, that he was framed by M.O. and her husband and that the police overlooked this possibility in -a rush to judgment. In support of this theory, he .points out that police made no attempt to verify that M.O.’s husband was actually out of town at the time of the crimes, particularly' by obtaining cell-tower records. He also points out that police never fingerprinted his truck in order to determine whether Insomeone else might have driven him to Hatfield that night, which would have explained how he got there without his glasses.
The primary problem with Van Winkle’s argument is that his trial counsel did, in fact, present an actual-innocence defense. A review of the trial record reveals that this was the main theory of the case advanced by thé defense, although there were also references to a mental defect arising from a -prior head injury. The record is replete with instances of trial counsel eliciting testimony to support the theory that Van- Winkle was actually inno cent of these charges, that he was set up by M.O. and her husband, and that law enforcement conducted an incomplete investigation. By way of example, the defense called several witnesses to testify about Van Winkle’s physical ailments. His parents both testified about his.poor eyesight. His father stated that he cannot drive without his glasses, and his mother stated that he is ■ legally blind without them. Several of Van Winkle’s employees testified about his back problem, his need for a back brace, and his inability to tie his own shoes. Van Winkle- himself testified that he never leaves home without his glasses or hearing aids, as he cannot go anywhere without, them. M.O. was also asked if she remembered whether Van Winkle was wearing glasses at the time of the crimes.
In addition, trial counsel questioned M.O. extensively about how she was able to break two sets of zip ties. Her husband was also questioned about the fact that he was never asked to give a statement and was never asked to prove, by way of cellphone records, that he was in Lowell at the time of the crimes. Furthermore, trial counsel questioned the sheriff extensively about his investigation in this case, specifically inquiring about the possibility that 11na lack of investigation could create a false impression. In particular, the defense focused on law enforcements failure to take a statement from M.O.’s husband, their failure to investigate the fact that Van Winkle had apparently driven without his glasses, their failure to request fingerprint and DNA analysis on certain pieces of evidence, and their failure to explain how they obtained the key to Van Winkle’s truck.
Thus, it is clear that Van Winkle’s counsel pursued an. actual-innocence defense at trial — precisely the one that Van Winkle now advances. As such, Van Winkle has-not established that his trial counsel’s performance was deficient under Strickland. Even if trial counsel had not pursued this theory, it is well settled that trial counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy. See, e.g., Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. When a decision by trial counsel is a matter of trial tactics or strategy and that decision is supported by reasonable professional judgment; then such a- decision is not a proper basis for relief under Rule 37. See id. Van Winkle has failed to overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. See Taylor, 2015 Ark. 339, 470 S.W.3d 271.
To the extent that Van Winkle challenges his trial counsel’s failure to call particular witnesses in support of his actual-innocence defense, such as his optometrist and his chiropractor, his argument is meritless. The decision of whether to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. See, e.g., Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). When assessing an attorney’s decision to not call a particular witness, it must be taken into account that the decision is largely a matter of h,professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in and of itself proof of counsel’s ineffectiveness. See id. The omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. See, e.g., Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722.
Here, the testimony of the optometrist and the chiropractor would have been cumulative to other evidence, as set out above. It was well established at trial that Van Winkle had poor eyesight, poor hearing, and a. back problem. But the -jury discounted his theory of the case, possibly Rejecting the implication that he owned only one pair of glasses and one set of hearing aids. In short, Van Winkle’s actual-innocence defense turned on a credibility determination, and it is the sole province of the-jury to determine the credibility. of witnesses and the weight and value of their testimony. See, e.g., Nelson, 344 Ark. 407, 39 S.W.3d 791. There is no indication that the jury would have resolved this credibility determination in Van Winkle’s favor; therefore, he has failed to demonstrate that the outcome of the trial would have been different had his attorney called the .optometrist and the chiropractor to testify. See id.
In any event, Van Winkle concedes that, under existing case law, a claim of actual innocence is considered a direct attack on the judgment and a challenge to the sufficiency of the evidence that is not cognizable in a Rule 37 proceeding. See, e.g., Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. Nonetheless, Van Winkle contends that we should overrule our precedent on this point. He suggests that (1) actual innocence is a constitutional claim and, |12as such, is cognizable under Rule 37.1(a)(i), and (2) the denial of actual innocence as a constitutional defense to a conviction violates article 2, section 13 of the Arkansas Constitution (“Every person is entitled to a certain' remedy in -the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without' delay; conformably to the laws.”). -
Even if this court were inclined to revisit- this issue, we decline to do so in this particular case. As stated above, Van Winkle was afforded the actual-innocence defense he now claims his trial counsel was ineffective for failing to.pursue. There-' fore, even if a claim of actual innocence were cognizable in a Rule 37 proceeding, Van Winkle has failed to demonstrate that his counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Accordingly, he would not be entitled to relief.
II. Change-of-Venue Motion
For his second point on appeal, Van Winkle asserts that his trial counsel was ineffective for failing to file a motion seeking a change of venue. He maintains that extensive pretrial publicity prevented him from receiving a fair trial in Polk County or neighboring Montgomery County, Specifically, he alleges that two newspapers in the judicial district printed numerous articles, immediately after his arrest and continuing until his trial two years later, some of which included a “staged” booking photograph depicting him with no shirt, and some of which inaccurately reported that he had been arrested in M.O.’s home. Van | ¶¡Winkle contends that this prejudicial and inaccurate publicity would have made potential jurors form a biased opinion that the State’s case was stronger than it actually was. Thus, he argues, his trial counsel should have attempted to move the case outside of the judicial district.
The decision of whether to seek a change of venue is largely a matter of trial strategy and is therefore not an issue to be debated under our postconviction rule. See, e.g., Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990) (per curiam). Here, trial counsel was clearly aware of the pretrial publicity and made multiple references to it at trial. The decision to not seek a change of venue was a strategic one. As the State points out, the defense chose instead to try to capitalize on Van Winkle’s reputation in the community. Trial counsel called several character witnesses, including a pastor, who all stated that they had lived in the community for years and knew Van Winkle as a truthful person. Accordingly, Van Winkle has failed to overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. See, e.g., Taylor, 2015 Ark. 339, 470 S.W.3d 271.
Furthermore, to establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. See, e.g., Huls, 301 Ark. 572, 785 S.W.2d 467. Van Winkle has failed to do so. He does not specify “any conduct of a juror from which it can be ascertained that the juror was unprepared to afford him an impartial hearing of the evidence.” Id. at 580, 785 S.W.2d at 471. Consequently, he has failed to demonstrate prejudice as required by the second prong of Strickland. It is well settled that jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. See id. |14Van Winkle’s assertion that potential jurors might have been misled about the strength of the State’s evidence is not sufficient to overcome the presumption. A defendant is not entitled to a jury totally ignorant of the facts of a case, and he is not entitled to a perfect trial, only a fair one. See id.
III. Jury Instruction Concerning Firearm Enhancement
For his third point on appeal, Van Winkle contends that his twelve-year sentence for employing a firearm in the commission of a felony, imposed pursuant to Arkansas Code Annotated section 16-90-120, is void as both ineffective assistance of counsel and structural error. He asserts that the jury was improperly instructed on the firearm enhancement because it was not told that the State was required to prove beyond a reasonable doubt that he had used a firearm. By way of explanation, the jury was apparently not given the model instruction on the firearm enhancement, which requires proof beyond a reasonable doubt; instead, each of the verdict forms on the charged offenses included a line at the bottom asking the jury to “indicate, whether he used a firearm in the commission of the offense.” It is clear that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Van Winkle, the trial court committed structural error by failing to properly instruct the jury, and his trial counsel was ineffective for failing to object at the first opportunity.
Van Winkle’s structural-error argument is not preserved for appellate review. We disagree with the State’s assertion that Van Winkle has changed his argument on appeal; [^however, the circuit court did not rule on Van Winkle’s structural-error argument at all in denying his petition for postconviction relief. It found only that his trial counsel -was not ineffective for failing to object. The failure to obtain a ruling on an issue at the circuit-court level, including a constitutional issue, precludes review on appeal. See, e.g., Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001).
This leaves Van Winkle’s ineffective-assistance claim. We agree that trial counsel’s failure to object to the absence of a proper jury instruction constituted deficient performance under Strickland. It can hardly be said that the failure to so object, even when viewed from counsel’s perspective, could have been the result of reasonable professional judgment. See, e.g., Taylor, 2015 Ark. 339, 470 S.W.3d 271. However, Strickland still requires a showing of prejudice. Contrary to Van Winkle’s contention, the failure to properly instruct the jury on the State’s burden of proving the firearm enhancement is not a fundamental error that renders the judgment of conviction void and precludes harmless-error analysis. See Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). Van Winkle has failed to meet his burden on this second prong of the Strickland analysis.
M.O. testified that Van Winkle pointed a pistol at her during the commission of the offenses. He was carrying a loaded gun when he was arrested immediately afterward. Moreover, the jury was instructed that, in order to sustain the charge of aggravated residential burglary, the State had to prove beyond a reasonable doubt that Van Winkle was armed with a deadly weapon or represented by word or conduct that he was armed with a deadly weapon. That same instruction defined “[djeadly weapon” as “a firearm.” Indeed, the jury found |lfibeyond a reasonable doubt that Van Winkle was guilty of aggravated residential burglary, and it indicated on that same verdict form that he had used a firearm in the commission of the offense. In addition, there is no dispute that the jury was instructed on the general requirement and definition of reasonable doubt and that these instructions were proper. In light of these facts, Van Winkle has not demonstrated that he was prejudiced by his trial counsel’s failure to object. Stated differently, there is not a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. See, e.g., Taylor, 2015 Ark. 339, 470 S.W.3d 271. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial, and we cannot say that such a probability exists here. See id.
IV. Denial of Evidentiary Hearing
Finally, Van Winkle maintains that he set forth a prima facie case for relief on each of the grounds set out above and was thus entitled to an evidentiary hearing. Arkansas Rule of Criminal Procedure 37.3 requires an evidentiary hearing in a postconviction proceeding unless the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief. See, e.g., Beverage, 2015 Ark. 112, 458 S.W.3d 243. If the petition and record conclusively show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect, “specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Id. (quoting Ark. R.Crim. P. 37.3(a)). Here, for the reasons stated above, the petition and record conclusively showed that Van Winkle was entitled to no relief, and the circuit court made the requisite findings. While Van 117Winkle asserts that the ten-page limit for Rule 37 petitions allowed him only to summarize the evidence that he would have presented, we have held that the supporting facts must appear in the petition and that the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. See, e.g., Watson v. State, 2014 Ark. 203, 444 S.W.3d 835.
For the above-stated reasons, and considering the totality of the evidence, we hold that the circuit court did not clearly err in denying Van Winkle’s petition for postconviction relief without a hearing. See, e.g., Beverage, 2015 Ark. 112, 458 S.W.3d 243.
AffirAed.
Baker and Hart, JJ., concur. | [
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PER CURIAM
' | íAppellant Darcel Damiario Tolliver, filed a motion to file a belated petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. The circuit court entered ah order that dismissed the request for postconviction relief because it did not comply with the 90-day time limitation imposed by Rule 37.2(c)®' (2015) of the Arkansas Rules of Criminal Procedure. Tolliver lodged this appeal and filed á motion and a second mbtioh seeking an extension of time to file his brief. Tolliver’s brief was filed timely on February 22, 2016. Nevertheless, this court will not permit an appeal from ah order that denied a request for postcdnviction relief if it is clear that the appellant could not prevail. Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam). Because it is clear that appellant cannot prevail on appeal, we dismiss the appeal, and Tolliver’s motions for an extension to file ■ his brief are moot.
|2On March 21, 2011, Tolliver pled guilty to multiple felony offenses and was sentenced as a habitual offender to 240 months’ imprisonment. On September 12, 2011, Tolliver filed a petition to correct an illegal sentence pursuant to Ark.Code Ann. § 16-90-lll(Repl.2011) and lodged an appeal from the denial of his petition. We treated the petition as a claim for postcon-viction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure, and dismissed the appeal because the petition was filed 175 days after the judgment of conviction was entered, which was untimely. Tolliver v. State, 2012 Ark. 46, 2012 WL 310958 (per curiam). In that opinion, we made it clear that time limitations imposed by Rule 37.2(c) are jurisdictional and if they are not met, the trial court lacks authority to grant relief. Id. at 3.
Three years after his first untimely petition for postconviction relief was dismissed by this court, Tolliver filed a pleading styled “motion for belated Rule 37.1” on September 25, 2015, and alleged that his guilty plea was the result of ineffective assistance of counsel because counsel erroneously advised that Tolliver would be eligible for parole after serving five years of his twenty-year sentence. According to Tolliver, his plea was not intelligently made because it was based on misinformation provided by his ineffective counsel. Tolliver further contended that he was entitled to relief despite his failure to comply with the time limits imposed by Rule 37.2 based on recent United States Supreme-Court decisions in Martinez v. Ryan, 566 U.S. , 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, 569 U.S. , 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Tolliver asserted that the holdings in these two United States Supreme Court decisions mandate review of claims that have been procedurally defaulted. |aToIliver’s reliance on Martinez and Trevino as a means to disregard the requirements of the Arkansas Rules of Criminal Procedure 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 an ineffective-assistance-of-counsel claim, 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 his attorney was ineffective and if the petition filed in the state court had a meritorious claim. Martinez, 566 U.S.-, 132 S.Ct. at 1318-19; See Abernathy v. State, 2015 Ark. 126, at 2-3, 458 S.W.3d 241, 242 (per curiam). In Trevino, the Court extended its holding in Martinez to cases in which a state’s procedural framework make it unlikely that a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. Trevino, 566 U.S.-, 133 S.Ct. at 1919-20; Abernathy, 2015 Ark. 126, 2-3, 458 S.W.3d at 242. Neither the ruling in Martinez nor the ruling in Trevino precluded states from placing requirements or limits on state postconviction relief. Abernathy, 2015 Ark. 126, at 3-4, 458 S.W.3d at 243. This court has held that such requirements and other limitations on postconviction relief do not violate the right to due process. Id. Contrary to Tolliver’s contention, the rulings in Martinez and Trevino did not provide a basis for state courts to excuse petitioners from compliance with these state procedural rules. Rather, these cases recognized a basis for federal courts to excuse a procedural default when reviewing a petition for habeas corpus that has been filed in federal court. See Trevino, 566 U.S. at-, 132 S.Ct. at 1320 (a procedural default will not bar a federal habeas court from hearing a substantial 14claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective).
To the extent that Tolliver was alleging that the State’s failure to provide postconviction counsel excused his failure to file a timely postconviction petition, he is mistaken. While Trevino clarified aspects of Maitinez, it did not require states to make provision for every petitioner in a collateral attack on a judgment to have counsel. Stalnaker v. State, 2015 Ark. 250, at 9-10, 464 S.W.3d 466, 472 (per curiam). Postconviction matters are considered civil in nature, and there is no absolute right to counsel. Id.
We dismiss the appeal because the trial court correctly determined that the petition was not timely filed. Pursuant to Arkansas Rule of Criminal Procedure 37.2(c)(i) (2015) if a conviction was obtained by a plea of guilty a petition claiming relief must be filed within ninety days of the date of entry of judgment. As the petition was not timely filed, the circuit court did not have the authority to grant the relief sought. Sanders v. State, 2015 Ark. 249, at 1-2, 2015 WL 3429115 (per curiam). There are no provisions in the prevailing rules of procedure that permit a petitioner to file his petition outside the time limits set by Rule 37.2(c) of the Arkansas Rules of Criminal Procedure, and the United States Supreme Court’s holdings in Martinez and Trevino did not create an excuse for failing to file a postcon-viction petition within those time limits.
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Steele Hays, Judge.
Appellants were convicted of theft of property and burglary of a residence in Lonoke County, receiving concurrent ten year sentences on each charge. For reversal, they allege the trial court erred in not suppressing evidence seized without a warrant, in not permitting the introduction of statements elicited from them by the police, and in permitting a police officer to give opinion testimony. We find no error.
The facts given us are that shortly after noon on February 4, 1980, a private citizen followed the three appellants from North Little Rock to near Scott, a distance of about 15 miles, and watched them slow down and scrutinize residences along the way. He formed the belief that they were “casing” the residences for a burglary, particularly one at the intersection of Highway 130 and Walker’s Corner Road. Leaving his own pursuits, he drove to the police station at England where he reported the information to Deputy Sheriff Alan Swint. Mr. Swint knew the location to be sparsely settled, to have been subjected to a rash of recent burglaries and knew the residence of George Brown to be at that point. Appellants’ car, a bronze Cadillac, was unfamiliar to him. Swint went directly to the scene where he saw the Cadillac stopped, but positioned diagonally across the highway in such a manner as to suggest having just backed from the Brown driveway. Swint radioed another officer to investigate the residence as he followed the appellants. In North Little Rock he signalled another police vehicle to assist him and with that help he stopped the occupants and told them they were being held for suspicion of burglary. After handcuffing the appellants he received a radio report that the Brown residence had, in fact, been burglarized. With that information, he opened the trunk and observed two garment bags. One, he maintains, was partially opened, enabling him to see articles of silver service. On those facts appellants’ motion to suppress was denied.
I.
Appellants maintain the initial stop and detention was an unlawful arrest and seizure and there was no probable cause for the search. We disagree.
Our Rule of Criminal Procedure 3.1 gives a police officer the right to stop and detain for up to 15 minutes any person he reasonably suspects has committed a felony. Rule 2.1 defines the test as more than an imaginary or purely conjectural suspicion, but less than probable cause. Even the higher standard of probable cause requires much less than a certainty, as it is said to exist simply if the circumstances known to the officer would warrant a prudent man in believing a suspect had committed a crime. Henry v. United States, 361 U.S. 98 (1958); Giordenello v. United States, 357 U.S. 480 (1959). It does not depend on the same type of evidence as would be needed to support a conviction. Draper v. United States, 358 U.S. 307 (1959).
Hence, these considerations are relative, and can be compared to a ladder with four rungs: at the highest level is certain knowledge, as in the case of an eyewitness to a crime; next is probable cause, less than a certainty, but enough to satisfy a prudent man; lower yet is a reasonable suspicion; and at the lowest level, a bare or imaginary suspicion, founded on nothing more than a hunch. Applying that standard to this case, we regard the requirements of reasonable suspicion as having been fully satisfied.
To validate this conclusion one need look no farther than the landmark decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The circumstances of that case provide a striking analogy to this case. Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer’s interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were “casing” the store for a robbery. He approached the men, identified himself as a police officer, and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men “mumbled something” in response to his question the officer grabbed Terry, “spun him around” to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States, whose sensitivity to Fourth Amendment constraints needs no defense, affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances. The cases are rationally indistinguishable. A similar holding was reached in Adams v. Williams, 407 U.S. 143 (1972).
In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the court dealt with the problem of the United States Border Patrol’s authority to stop automobiles near the Mexican border. Referring to Terry v. Ohio, the court said:
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Emphasis supplied.)
In Reid v. Georgia, 448 U.S. 438 (1980), Terry v. Ohio was described as holding that conduct lawful in itself can be such as to arouse a reasonable suspicion when viewed by a trained police officer.
In United States v. Cortez, 449 U.S. 411 (1981), the court observed that while trained police officers are able to draw inferences and make deductions that might well elude others, in the final analysis investigatory stops must be justified by some objective manifestation that the person is engaged in criminal activity. Noting that the whole picture must be considered the court said:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must he seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. (Emphasis supplied.)
In this case the objective manifestations are found in the fact that the suspects were followed a considerable distance and observed to study residences along the way as if to be “casing” them; coupled to those circumstances are the knowledge and observations of Officer Swint that the area had been frequently burglarized, that the vehicle was unfamiliar to him, the occupants unknown to him and were thought to have just emerged from the Brown driveway 45 minutes to an hour after the informant observed them “casing” the residence. Singly, those circumstances indicate nothing; collectively, they add up to a reasonable suspicion. The case may be stronger than Terry v. Ohio — stores and store windows, unlike private homes, are intended to attract scrutiny. We conclude that the initial stop of the appellants was based on reasonable suspicion and hence not a violation of the Fourth Amendment.
The second phase of appellants’ argument is that the warrantless search of the automobile was a violation of the Fourth Amendment. But we believe the search comes within the “automobile exception” announced in Carroll v. United States, 267 U.S. 132 (1925). The State does not contend the search was incidental to a lawful arrest (assuming appellants’ detention amounted to an arrest), as such searches are restricted to the passenger compartment of the vehicle. New York v. Belton,1 450 U.S. 1028 (1981). What is claimed, correctly we think, is that when Officer Swint learned the Brown residence had been burglarized, at that point he had probable cause to believe the vehicle contained evidence of the crime and, hence, a search of the vehicle was proper. Rule 14.1 (a), A. R. Crim. P., gives an officer the right to make a warrantless search of a vehicle detained on a public way if he has reasonable cause to believe the vehicle contains evidence subject to seizure, and exigent circumstances require immediate action to prevent removal or destruction of such evidence. Rule 14.1 is consistent with Carroll v. United States, in permitting search and seizure whenever “probable cause to believe that the area contains evidence of a crime conjoins with any exigency arising out of the mobility and imminent disappearance of that same constitutionally protected area.” See also Chambers v. Maroney, 399 U.S. 42 (1970).
Appellants cite Burkett v. State, 271 Ark. 150, 607 S.W. 2d 399 (1980), and Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980). where we held a warrantless search of wrapped parcels and suitcases was improper. But the distinguishing aspect is that in those cases the initial arrest was due merely to a faulty tail light and there was a lack of probable cause to believe the vehicles contained marijuana.
Appellants also press the argument that the garment bags were closed and, hence, under the “suitcase doctrine” there was an expectation of privacy in such containers, as recognized in Arkansas v. Sanders, 442 U.S. 753 (1979), and United States v. Chadwick, 433 U.S. 1 (1977). But that fact issue was disputed and the trial court apparently relied on the officer’s testimony that one of the garment bags was open and its contents clearly visible to him. Had the garment bags been closed, then the rationale of the suitcase doctrine might arguably apply on the theory that when the suspects and the . containers are in custody, exigent circumstances disappear and a warrant can be sought at leisure. But even that is a debatable point, as the language of footnote 13, page 764, Arkansas v. Sanders, supra, suggests:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar rools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred by their outward appearance.
Appellants argue inferentially that exigent circumstances disappear when the suspects and the vehicle itself are in custody, but that is not the law and, if reason prevails, will not become the law. Containers the size of suitcases can be readily secured in police custody but the impracticality of securing an automobile is self-evident, as the United States Supreme Court noted in Chambers v. Maroney, supra, where the court reviewed the automobile exception:
Carroll v. U.S. holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible. (Page 51.)
This is not to deny the existence of that school of cases which has barred a warrantless search of automobiles where both the suspect and the vehicle are in custody. (See Jenkins v. State, 253 Ark. 249, 485 S.W. 2d 541 (1972), Steel v. State, 248 Ark. 159, 450 S.W. 2d 545 (1970), Coolidge v. New Hampshire, 403 U.S. 443 (1971), Preston v. United States, 376 U.S. 364 (1963).) But those decisions distinguish a search at the scene of arrest as opposed to a search remote in time and distance from the situs of the arrest, under circumstances more conducive to the securing of a search warrant. We think the trial court correctly denied the motion to suppress.
II.
Secondly, appellants ascribe error to the refusal to allow the introduction of statements elicited from them by the police. Although appellants declined to testify, they sought to introduce statements each had given the police after their arrest. The statements claimed they had bought the articles (consisting of a mink coat and an estimated $20,000.00 worth of silver service) for $300.00 from two men they met that morning at a McDonald’s restaurant and known to them only as Larry and Mike. The statements were offered as an admission against penal interest, under Rule 804 (b) (3), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), on the theory that the statements exposed them to a charge of receiving stolen property. Before statements against penal interest are admissible under Rule 804 the court must be satisfied that the corroborating circumstances clearly indicate the trustworthiness of the statement. See Welch v. State, 269 Ark. 208, 599 S.W. 2d 717, cert. den. 449 U.S. 996 (1980). The circumstances surrounding these statements fail decidedly to meet that test and the trial court was right to exclude them.
III.
Finally, appellants contend that the court erred in allowing the deputy to give an opinion that the Cadillac had backed from the Brown driveway just before he saw it. Rule 701, Uniform Rules of Evidence, allows a lay witness to state an opinion if it is rationally based on his perception and would be helpful to a clear understanding of his testimony or to the determination of a fact issue. Whether the car had backed from the Brown driveway was a relevant issue. But more, its diagonal position in the highway, relative to the driveway, and its movement as he observed it, provided a rational basis for the opinion he gave. The difficulty of verbalizing the movement of objects and physical events often requires some degree of opinion by the observer and the speed and movement of automobiles, as of people, illustrate the reason for the rule. See Mathis v. State, 267 Ark. App. 904, 591 S.W. 2d 279 (1979). The trial court did not err in allowing the testimony.
The judgments are affirmed.
Hickman, J., consurs.
Holt, Purtle, and Dudley, JJ., dissent.
Time is not an issue here and presumably the stop had not exceeded 10 to 15 minutes when the suspected burglary was confirmed.
“The Automobile Exception: What It Is and What It Is Not — A Rationale in Search of a Clearer Label” by Judge Charles Moylan, 27 Mercer Law Review 987 (1975).
Where it was held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” | [
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Steele Hays, Justice.
This is the second appeal from orders of the Crawford Probate Court affecting the estate of J. Fred Alexander, who died in 1956, survived by his widow, Mildred, and two adult children, Caruth and Mary. Fred Alexander left a sizeable estate, subject to the terms of a standard marital deduction will leaving one-half of the estate to Mildred and the balance to her in trust for Caruth and Mary, with the income of the trust belonging to Mildred.
In 1967 Caruth died survived by his widow, Dorothy, the executor of his will, and a minor son, and litigation between Dorothy and Mildred over the handling of the estate began in earnest, culminating in Alexander, Ex’x v. Alexander, Ex’x, 262 Ark. 612, 561 S.W. 2d 59 (1978). There, we upheld the Crawford Probate and Chancery Courts on numerous disputed issues, including an order directing Mildred to account for real and personal property, but excluding income from the trust. The case was remanded for further proceedings and in June 1978 Mildred filed what purported to be a full and final accounting, to which the executor in succession, the First National Bank of Fort Smith, objected. The bank filed its own accounting, and petitioned for distribution of the remaining assets (four farms and cash totalling $77,478.59) 40.8% to Mildred and 59.2% to the trust. Mildred protested, asserting various agreements and transactions among the heirs and alleging in particular a family settlement allowing her to receive all undistributed assets. The trial court found there was no proof of a family settlement and approved the bank’s accounting and proposed distribution. For reversal, Mildred Alexander argues her right to all undistributed assets as fixed by family settlement. Alternatively, she claims the trust has been excessively distributed, the intent of the testator was defeated by the findings of the trial court, the bank’s accounting should not have been adopted, her request for unpaid income should have been allowed, and probate court lacked jurisdiction to determine family settlements. We find the arguments to be without merit.
In support of the family settlement theory, Mildred points generally to the manner family business was conducted after the death of Fred Alexander; she contends the family was close, given to confiding in each other, always handling matters affecting the estate by agreement; that Caruth collected rental payments, made deposits, transferred funds of the estate and advised her in all business and financial matters. She points to a number of beneficial distributions made prematurely to Caruth and Mary and notes that Mary does not dispute the alleged settlement. She also relies on a number of instruments and memoranda of transactions which she insists demonstrate a family settlement.
It cannot be questioned that with Mildred’s approval advances were made to Caruth and Mary they were not otherwise entitled to or that the family handled the estate in many respects with a notable absence of formality, but her claim of family settlement rests largely on her own conclusory assertions and on writings she attributes to Caruth, but to which the trial court plainly gave no credence. We do not find in the record credible proof of an actual agreement of the settlement she claims or even of evidence from which an implied settlement could be reliably inferred sufficient to overturn the trial court. She cites a number of our cases for the principle that family settlements are greatly favored, but the problem here is the trial judge found, in rather emphatic terms, an absence of proof supporting the alleged settlement. He also found her arguments to be similar if not identical to those argued in the earlier case, which were decided adversely to her. Further, the trial court gave scant regard to a number of exhibits consisting of instruments or memoranda relied on by Mildred Alexander, describing such proof as “fabricated, unverified or unsupported documentation.’ ’ It seems clear the overall credibility of her claim before the trial court was tarnished by the introduction of evidence of questionable authenticity. Too, her disobedience to court orders to deliver records and information to the executor in succession seriously impeded the progress of the case and her actions were condemned by the trial court as contumacious and “absolutely lacking in candor and cooperation.” We note a similar comment in the opinion of this court: “There is a total absence of any showing of good faith of Mildred Alexander in the exercise of her discretion in this case.” (Alexander, Ex’x v. Alexander, Ex’x, supra, at p. 630.) Without belaboring the point, we have reviewed the evidence she cites and even if her arguments were not res judicata, we are unable to say findings of the trial court were clearly erroneous. Rule 52, A. R. Civ. P.
Another contention is that even without a family settlement agreement the court erred in holding that the trust had not been excessively distributed. Appellant points primarily to the fact that in 1959 she distributed 300 shares of stock of the Commercial Bank of Alma to Caruth and two farms of comparable value to Mary. Other distributions of cash are cited. Aside from the absence of any authority for this assignment of error, the argument is untenable because the distributions on which appellant relies have already been dealt with and are not now open to review. That can be said with certainty of the bank stock issue (see Alexander, Ex’x v. Alexander, Ex’x, supra, at p. 620) although whether the other items she claims were specifically resolved in the earlier stages of this litigation is not clear. But if not, they could have been and the result is the same — they are now foreclosed. Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W. 2d 583 (1963); Taylor v. Taylor, 153 Ark. 206, 240 SW. 2d 6 (1922); Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S.W. 2d 491 (1951).
Appellant contends the probate court is without jurisdiction to determine whether a family settlement agreement was reached. We disagree. This was not an original action to cancel or enforce an alleged family settlement agreement where chancery jurisdiction might be said to attach. The alleged family settlement agreement was part of a dispute among the heirs over distribution of the estate within the probate proceeding itself, and not independent of it. In fact, the issue was asserted by Mildred Alexander in support of her own accounting and proposed distribution. Clearly, the probate court had jurisdiction to try the issues in this case and its jurisdiction was not lost simply because a family settlement agreement was alleged. Snow & Smith v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20 (1974); Hartman v. Hartman, Admr., 228 Ark. 692, 309 S.W. 2d 737 (1958); Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). We note, too, the absence of any objection to probate jurisdiction until the case reached this court on appeal. An objection to jurisdiction made in good faith should have come before the case was tried and decided on its merits. Hobbs, Admr. v. Collins, 234 Ark. 779, 354 S.W. 2d 551 (1962); Park v. McClemens, Excr., 231 Ark. 983, 334 S.W. 2d 709 (1960).
Other arguments have been considered and rejected: appellant claims impounded income should have been released to her, but the withholding of her funds was due to her failure to comply with court orders and we are not willing to say the court was wrong. She also submits the bank’s accounting is improper. We fail to see the merit of the argument; moreover, we are not disposed to strain in behalf of the argument in view of her obdurate refusal to obey orders to surrender records and supply information that would have aided the executor in succession in preparation of an accounting. Without that assistance the bank was left to reconstruct an accounting from tax returns and other data and since she affirmatively impeded its preparation, we find little equity in her argument the accounting is wrong.
The order of the probate court is affirmed. | [
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Steele Hays, Justice.
On August 9, 1980, Tammy Sherman was robbed as she was leaving Hudson’s Fish Market where she worked. Moments later she was shot twice as she attempted to go back inside the market. Appellant, Sam Harshaw, was tried and convicted of aggravated robbery and first degree battery for his participation in the crime, receiving concurrent sentences of fifty and twenty years. Appellant alleges three errors by the trial court. We disagree with the arguments and affirm the judgment.
First, appellant contends the court erred in denying his motion for a directed verdict on the aggravated robbery charge, claiming there was no evidence linking him with the robbery. The State’s evidence showed Tammy Sherman got off work at 9 p.m. When she reached her car, Ronnie Dokes and two other men approached her and demanded her money. At gun point Dokes took her purse and a sack of bread and the three men left. Tammy Sherman walked a few steps toward the market to report the robbery when she saw Sam Harshaw, whom she knew, crouched behind another vehicle. He stood up, told her he had a gun and to “get back.” Ms. Sherman ignored Harshaw’s warning telling her he would have to shoot her. As she turned to walk on, Harshaw shot her first in the hand and then in the back, inflicting a permanent paralysis from the waist down.
The evidence of Harshaw’s identification is positive and unequivocal. Mr. Bert Mitchell testified that a few minutes before the robbery he saw Harshaw and three other men standing near the door of the market. Mitchell knew Harshaw and spoke to him as he passed.
The State’s evidence linking Harshaw to the aggravated robbery is entirely circumstantial, but that does not preclude a finding he was involved in the robbery. Harshaw was placed at the scene immediately before and after the robbery. His conduct is unexplainable except in connection with the robbery. The only plausible inference is that Harshaw was hiding a few feet away during the robbery and when he was recognized by the victim he shot her to give his companions and himself time to get away from the scene. In Darville v. State, 271 Ark. 580, 609 S.W. 2d 50 (1980), we said:
We have often stated the rules in regard to circumstantial evidence that where circumstantial evi dence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Hurst v. State, 251 Ark. 40, 470 S.W. 2d 815 (1971); Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969). The question whether circumstantial evidence excludes every other reasonable hypothesis other than the guilt of the accused is usually one for the jury. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979). The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law and the test is whether there was substantial evidence to support the verdict when viewing the evidence in the light most favorable to the state. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); and Abbott v. State, supra. (At 581.)
In Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974), we said:
When circumstantial evidence rises above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976; Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671. See also Walker v. State, 174 Ark. 1180, 298 S.W. 20; 30 Am. Jur. 2d 295, Evidence § 1125. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Bartlett v. State, 140 Ark. 553, 216 S.W. 33; Bost v. State, 140 Ark. 254, 215 S.W. 615. See also, Walker v. State, supra. The jury certainly should test the reasonableness of any other hypothesis. (At 433.)
The pertinent sections of the Criminal Code on this issue state:
41-2102. Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 [§ 41-2103] and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
41-2103. Robbery. — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
Under the due process clause of the Fourteenth Amendment, the State must, of course, prove each element of a crime beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Harkness v. State, 267 Ark. 274, 590 S.W. 2d 277 (1979); Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979). However, an element may be inferred by circumstantial evidence where there is no other reasonable explanation for the accused’s conduct.
No explanation was offered for the shooting of Ms. Sherman and no other reasonable hypothesis exists except that it was connected to the robbery. Harshaw’s defense was based on a denial he was present at the robbery or at the shooting. Where common sense will allow no other reasonable conclusion to be drawn from the evidence but that the accused was involved in the robbery the denial of a motion for a directed verdict cannot be regarded as error.
Second, Mr. Harshaw argues the trial court erred in allowing the State to call Dr. Stephenson Flannagin to testify as to Mrs. Sherman’s injuries. Harshaw offered to stipulate as to the injuries Ms. Sherman sustained. He contends the doctor’s testimony was cumulative evidence and the only purpose for introducing it was to inflame the jury. However, the record does not reveal any objection to Dr. Flannigan’s testimony based on prejudice or its inflammatory nature. (Tr. 125.) Harshaw cites the case of Lee v. State, 266 Ark. 870, 587 S.W. 2d 78 (Ark. App. 1979), to support this contention, but there are differences. In Lee, the appellant was charged with three counts of manslaughter stemming from an auto accident. Dr. Jorge Johnson was allowed to testify in detail about the victim’s unsuccessful, agonizing four-day struggle to survive though Lee had conceded the cause of death. Dr. Flannigan’s testimony, unlike Dr. Johnson’s, was only a brief and general description of Ms. Sherman’s injuries and the permanent effect of her paralysis. His testimony was relevant to show an element of the aggravated robbery — the infliction or intent to inflict death or serious injury to another. Ark. Stat. Ann. § 41-2102. Whether the probative value of relevant evidence is outweighed by any prejudice it may produce is for the trial court to determine. Rule 403, Arkansas Uniform Rules of Evidence.
Finally, Harshaw contends the trial court erred in admitting testimony of acts committed by Dokes and the other two. For the reasons already stated, we conclude there was evidence linking Harshaw to the robbery and, therefore, that testimony is relevant to Harshaw. Generally, all evidence that is relevant is admissible. Arkansas Uniform Rules of Evidence 401, 402; Ark. Stat. Ann. § 28-1001 (Repl. 1978). The evidence was also admissible because it established a link in the entire criminal transaction of the offense charged. In Russell and Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), we stated:
. . . when acts are intermingled and contemporaneous with one another, evidence of any or all of them is admissible to show the circumstances surrounding the whole criminal episode. (At 452.)
The judgment on the sentences is affirmed. | [
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Richard B. Adkisson, Chief Justice.
Appellee, City of Little Rock, denied an application by appellant, Donald R. Kirk, to rezone 5.9 acres from R-2, single family residential, to MF-12, multifamily. Appellant then filed a complaint in Pulaski Chancery Court seeking to enjoin appellee from interfering with his desired use of the property. The trial court permitted the Caring Property Owners Association, an unincorporated association formed to oppose rezoning of the property in question, to intervene. The chancellor held the denial of the rezoning application by appellee was not arbitrary or capricious and did not deprive appellant of all reasonable use of his property. On appeal wé affirm.
The property in question is located on the north side of West Markham Street, three blocks east of the intersection of Markham and Rodney Parham, and across the street from Brady Elementary School. It is irregular in shape with frontage access to Markham Street through a corridor 50 feet wide and 229 feet deep. It is divided by a drainage ditch; the northern part is ruggedly steep and the southern part is flat.
The property is bordered on the north and east by property zoned single family residential, R-2; on the west by R-2 and R-5, apartment; and on the south by property zoned R-5 and West Markham. Appellant’s property is currently zoned R-2; appellant requested rezoning to MF-12 (multifamily, 12 units per acre).
The only issue before the trial court was whether the City acted arbitrarily, capriciously, or unreasonably in refusing to rezone appellant’s property. To prove that the City had acted unreasonably, appellant introduced evidence to show that he would be deprived of any reasonable use of his property unless it was rezoned as requested.
Appellant’s experts testified that the northern portion of the property could not be developed as single family residential because of the cost, and that the best use for the tract would be a multifamily development of some sort. They gave examples of apartment complexes that adjoin single family residence areas in several parts of Little Rock. However, none of appellant’s witnesses testified that the only appropriate zoning for appellant’s property was MF-12.
A witness for the appellees, Professor Robert Wright, a land use expert, testified that rezoning the northern portion of the property to MF-12 would not be a compatible land use because it is surrounded by property zoned R-2 on three sides. Professor Wright described this as spot zoning which is shunned by land use experts as improper. Other experts for appellees testified that it would be inappropriate to extend apartments into the adjacent single family developments and that MF-12 zoning would have an adverse impact on these areas. Several property owners testified that they objected to the rezoning because of the possible devaluation of their homes and because of potential traffic problems which could be created by an apartment complex.
The chancellor resolved this conflict in testimony in favor of appellees, finding that rezoning the entire tract MF-12 would be incompatible with the surrounding neighborhood and would have an adverse impact on homes adjacent to the northern portion of appellant’s property. We stated in Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966) that the composition of the entire area must be taken into consideration in a zoning case. Also, the effect on the surrounding property is a valid consideration as well as the objections of neighboring property owners. See Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94 (1968). After reviewing the testimony, we cannot say that the chancellor clearly erred in finding by a preponderance of the evidence that the City did not act unreasonably in refusing to rezone appellant’s property.
Appellant argues that R-2 zoning was unreasonable, but that issue was not before the trial court. The only issue was whether the denial of MF-12 zoning was unreasonable. Testimony revealed that there are other alternative classifications for the property which were not before the trial court.
Appellant argues that the trial court erred in giving equal weight to appellees’ experts since they were not informed as to certain engineering problems in connection with development of the property. In matters of credibility we defer to the judgment of the chancellor, who has the advantage of seeing the witnesses as they testify.
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John I. Purtle, Justice.
Carl J. Stokes died testate on January 15, 1979. His widow, Charlene, subsequently filed an election in probate to take against the will pursuant to Ark. Stat. Ann. § 60-501 et seq. (Repl. 1971). Her election was upheld by the probate court but on appeal to this court we declared the statutes unconstitutional. Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981). On April 29, 1981, the widow filed a new election for assignment of dower pursuant to Act 714 of 1981, codified as Ark. Stat. Ann. § 60-501 (Supp. 1981). The probate court dismissed her second election petition. At the same time the court dismissed a petition by the executor for an accounting on certain properties which were being managed by the widow as well as a third party complaint which had been filed by the widow.
The widow appeals from the order rejecting her election to take against the will, and the executor cross-appeals from the order refusing to require an accounting by the widow. We affirm both on direct and cross-appeal.
On February 23,1981, we declared unconstitutional the original statute under which the widow claimed. Subse quently the legislature enacted a new statute which was not gender based and allowed a widow to take the same as she could have taken under the old statute. Act 714, under which the widow presently claims, was enacted by the legislature on March 25, 1981. In Huffman v. Dawkins, 273 Ark. 520, 622 S.W. 2d 159 (1981), we held that Act 714 cannot be applied retroactively. Appellant’s claim arose prior to enactment of Act 714 and she cannot prevail under her present claim. We have previously declared the statute under which she claimed her first election to be unconstitutional. Therefore, the appellant is not entitled to dower rights from the estate of Carl J. Stokes.
On the cross-appeal we are unable to hold the judge was clearly erroneous. It appears from the abstract and briefs that the petition in probate for accounting by the executor and the third party complaint by the widow were dismissed without prejudice to have the matters heard in the chancery court. Chancery court has the power to have an accounting even though it could have been had in the probate court where the matter was pending. Ark. Stat. Ann. § 62-2004 (b) (Repl. 1971).
Affirmed on direct and cross-appeal. | [
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George Rose Smith, Justice.
In 1979 the Attorney General began this proceeding by filing a complaint with the Public Service Commission, asserting that the Arkansas Power & Light Company had misinterpreted a 1976 Commission decision approving part of a requested rate increase. The discussion part of that decision was reported as Re Ark. Power & Light Co., 15 PUR 4th 153 (April 21, 1976). The Attorney General’s complaint alleged that the Company’s misinterpretation of the decision had resulted in overcharges to its ratepayers of $17,297,124, which should be refunded. The Company answered, first, that its interpretation was correct, and second, that the Commission was estopped to interpret the decision any other way. The Commission rejected both the Company’s defenses, but found that the refunds should total only $7,791,544.59, with interest. This appeal is from a circuit court judgment affirming the Commission.
The issue is whether the fuel adjustment clause that the Company put into effect after the 1976 decision conformed to that decision. The Commission held that the Company’s clause did not conform and that there was no estoppel.
A fuel adjustment clause permits a power company to pass on to its ratepayers all or part of any increase (or decrease) in the cost of the fuel the company uses to generate electricity. AP&L’s three principal sources of electricity are the Company’s own generation of current by using nuclear fuel, its own generation by burning fossil fuel (oil or gas, for example), and its purchase of current from other power companies. The proportion in which the Company’s electricity is being derived at any particular time from those three sources is called the “generation mix.”
Several possible fuel adjustment clauses were presented to the Commission in 1976. The Company sought a single-base clause, which it had used for many years. The Commission refused to approve the continued use of that clause, on the ground, as more fully explained in a slightly later but overlapping AP&L rate case, that the single-base clause provides a utility no incentive to use its most efficient plants. Re Arkansas Power & Light Co., 19 PUR 4th 53, 81 (March 15, 1977).
The Commission, in discontinuing the single-base fuel adjustment clause, directed AP&L to use a multiple-base clause, which necessarily takes the generation mix into account. The Commission’s exact language was: “The base generating mix shall be that mix used in the system redispatch for determining the test-year revenue and expenses.” Two phrases in that directive need explanation. The test year is the hypothetical year that AP&L used, as is customary in rate cases, to demonstrate its need for a rate increase. The system redispatch is a computation made every 90 seconds by AP&L’s parent company, Middle South Utilities, to determine the cheapest combination of the system’s available sources of power. In AP&L’s test year the redispatch generation mix was 22.516% fossil fuel, 35.806% nuclear, 40.467% purchased power, and 1.211% hydroelectricity. In the next succeeding AP&L rate case, cited above, the Commission adhered to its position, using this language: “The commission determines the appropriate fuel adjustment clause is the one specified in [the 1976 case]. The generation mix will be that mix used to determine the test-year revenue and expenses.” 19 PUR 4th 81.
There is no doubt that the Commission’s 1976 discussion recognized the importance of the generation mix to be used in the fuel adjustment clause, but the question is: Just what generation mix did the Commission intend? The Commission found in the present case that it had intended a fixed mix in the proportion used in the system redispatch shown in the test year. The Company contends that the Commission’s discussion contemplated not a fixed mix but whatever actual mix the Company might select in serving its ratepayers. The Commission’s final order, implementing its 1976 opinion, was entered on April 8, 1977, but it did not mention the generation mix and so provides us no assistance. (It may be added that a multiple-base mix is never exact in its operation. It may result in the utility company’s recovery through the fuel adjustment clause of either more or less than the true change in the cost of fuel.)
The appellant first argues that there is no substantial evidence to support the view that the Commission’s 1976 decision contemplated a fixed generation mix rather than a variable actual mix. In making this argument the Company’s brief in chief discusses only the testimony of the Company’s own witnesses, with the broad statement: “There is no evidence to the contrary.” The Commission’s brief responds by citing the testimony of the witnesses Copeland, Burns, and Douglas. In reply the appellant insists that Copeland and Burns merely gave “unsupported opinions” about what the Commission had intended — opinions that the Commission itself disregarded.
We cannot accept that narrow view of the testimony supporting the decision under review. Counsel for AP&L did move to strike a few lines from Copeland’s testimony, which ran to scores of pages, as being merely his opinion about what the Commission intended. The motion to strike was not acted upon, but in any event it questioned the admissibility of only a small fraction of Copeland’s testimony. Copeland testified concerning various formulas that were doubtless understood by the Commission but are beyond our expertise as appellate judges, in the absence of any attempt by the parties to explain the formulas. Copeland stated, and was not cross-examined on the point, that during the 1976 case a Staff witness, Gary Goble, had urged the Commission to adopt a formula that was mathematically identical to AP&L’s later actual generation mix, but Goble’s formula was rejected. Yet AP&L’s actual practice put that formula into effect, according to Copeland.
Douglas’s testimony also supported the Commission’s conclusion. He impliedly recognized the Commission’s earlier emphasis on the need for incentives for the use of the most efficient sources of electricity and pointed out that the Company had profited by using fossil fuel even when it was more expensive than purchased fuel. He said that in 21 of the 22 months in question fossil fuel generation was more expensive than purchased power, but the Company apparently used it. His conclusion, as the Commission noted in the present case, was that AP&L’s fuel adjustment clause had the potential for “rewarding increased waste with increased profits.” On the case as a whole we cannot say that the Commission’s decision is not supported by substantial evidence.
The appellant argues, secondly, that the Commission is estopped to disapprove AP&L’s interpretation of the 1976 decision. This argument was summarily rejected by the Commission under our long-standing rule that the state cannot be estopped by the acts of its agents. Since the Commission’s decision, however, we have modified our rule by holding that although estoppel is not a defense that should be readily available against the state, our inflexible rule that the state can never be estopped should be abandoned. Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W. 2d 323 (1980). We therefore consider AP&L’s argument on its merits.
After the 1976 decision a Commissioner suggested to AP&L that it work with Goble, who was then the Commission’s Chief of Rates, in designing new rate schedules and in drafting a fuel adjustment clause. Goble and AP&L representatives did work together in the matter. However, neither the new rate schedules nor the order implementing the Commission’s decision contained any specific reference to the generation mix. Goble did not inform the Commission that the proposed fuel adjustment clause did not specify the redispatch fixed mix, but he did submit a memorandum to the Commission stating that he thought the proposed rate schedules conformed to the 1976decision. The Commission entered a brief order approving the proposed rates, apparently as a matter of routine. AP&L filed 22 monthly reports that showed the actual generation mix was being used. Goble examined the first few reports before he left the Commission’s employ and evidently considered them to be in conformity with the Commission’s decision. It is not contended that the Commission itself ever reviewed the monthly reports or that it was expected to do so.
We find hardly any real basis for an estoppel and certainly not .the comparatively clear showing that is essential if the state is to be estopped. Goble, as an employee of the Commission, had no authority to make a binding interpretation of the Commission’s language. His participation in the drafting of rate schedules which, according to Copeland, represented Goble’s own views but not those of the Commission, could not create an estoppel. No doubt there was some ambiguity in the Commission’s 1976 decision, but we discern hardly any want of clarity in this sentence from its 1977 decision, handed down before the entry of the implementing order: “A multiple fuel adjustment clause, when the generation mix is determined by the optimum redispatch system for the test year, provides the necessary incentives for the firm always to employ the most efficient plants.” 19 PUR 4th 81.
We think it clear that if the Commission’s decision was open to different interpretations, as the estoppel argument assumes, that fact was readily apparent to AP&L. On this point the Commission said in the present case, with respect to the substantial evidence argument: ‘‘[Ijnsofar as the Company may be understood to argue that the Orders are susceptible to more than one interpretation, we point out the obvious fact that the Company should have petitioned the Commission to resolve ambiguities. It proceeded at its peril in placing what we find to be an unreasonable interpretation most favorable to its interests on the Orders involved and acted accordingly.” That reasoning also pinpoints the weakness in the Company’s defense of estoppel: The necessary reliance upon misleading action by the Commission is lacking.
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Hays, J., not participating. | [
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Steele Hays, Justice.
Appellant was convicted of first degree murder and sentenced to 35 years in the Department of Correction. For reversal, she argues that the trial court erred in denying a motion to suppress tangible evidence, in admitting a confession and in refusing to declare a mistrial. We find no error and affirm the judgment.
On October 25, 1980, a Saturday, the body of Mrs. Jeannie Hunt was found in the kitchen of her Fayetteville home. She had been shot four times and death was thought to have occurred at about 8:30 or 9 the previous evening. Appellant, an acquaintance of Ben and Jeannie Hunt, was contacted by two deputies on Sunday evening and asked to come to the sheriff’s office for questioning. Sergeant Doug Fogley of the State Police began the interview by asking her name, address, phone number and when she had last seen Jeannie Hunt. Appellant said, “About 8:30 p.m. on Friday.” He immediately explained her rights to her and obtained her signature on a waiver form. During the questioning appellant gave a non-incriminating account of her movements on Friday. Appellant was asked if she owned a handgun and said she did, which she kept in the glove compartment of her car. She agreed to a search of the vehicle and, when the pistol was not found, to a search of her apartment, which produced a partial box of Remington .22 caliber long-rifle cartridges containing 44 bullets, six less than the normal 50. The Remington cartridges had a yellow jacket, matching one recovered at the scene.
Appellant was told of these findings and that there was probable cause to charge her with murder. She remained in custody and at about 5 p.m. on Sunday she dictated and signed a confession. She gave an account of a turbulent love affair with Ben Hunt, the victim’s husband, characterized by hostility and threats between the two women. In early October appellant purchased a pistol for protection, having some reason to think that Mrs. Hunt had a weapon. She said on Friday she saw Jeannie Hunt at a shopping center and decided to visit her; she wanted to find out where she stood with Ben and whether Ben and Jeannie planned to stay together. She took the pistol with her and arrived at about 8:30. They talked in the kitchen until Mrs. Hunt became angry. Shouting accusations she told appellant to get out of her house and pulled her toward the door. Appellant drew the pistol and fired four times at point blank range. She wiped her fingerprints from a drinking glass, drove home and changed clothes for work. After throwing the pistol from a bridge, she picked up her daughter and friends from a skating party and went to work. The pistol was later recovered by the police.
Appellant argues her Fourth and Fifth Amendment rights were violated by the trial court in admitting her confession and in refusing to grant her motion to suppress the physical evidence. She claims no attempt was made by the deputies to comply with Rule 2.3, A. R. Crim. P., by informing her she was under no legal duty to accompany them to the sheriff’s office. Further, before she was given the required Miranda warning she said she had seen Jeannie Hunt about 8:30 on Friday night. Appellant insists this admission that she had seen the victim near the time of death was fatal — that it opened the door to the whole case and everything obtained from her thereafter was tainted.
But the argument is not persuasive. No evidence at the scene implicated the appellant and there is no indication Sergeant Fogley regarded her as a specific suspect. Appellant had not been singled out as a suspect; all individuals acquainted with the victim were being contacted and under such circumstances it is not impermissible to ask some preliminary information questions without overstepping constitutional protectons. Here the interview had hardly begun and the questions asked were general. It seems entirely routine to ask when someone last saw the victim. Significantly, Sergeant Fogley immediately interrupted the questioning to give the Miranda warnings and there is nothing to suggest appellant was caught unawares by that single question. Her earlier steps to conceal the weapon and to wipe her fingerprints from the glass in the Hunt kitchen indicate she took deliberate precautions. Evidently she supplied a satisfactory explanation of her whereabouts on Friday and gave non-incriminating answers during the remainder of the interview. She had, in fact, seen Jeannie Hunt at a shopping center on Friday, but whether she was referring to that encounter is not revealed to us. However that may be, no other incriminating information appears to have been obtained from her. In short, in the absence of some indication of bad faith tactics by the officer or some particular vulnerability of the individual, we are not willing to say on the basis of that marginal question that everything the appellant later disclosed must be excluded. The constitutional protections against self-incrimination do not extend that far.
Procedures for custodial interrogation are prescribed by two well known decisions: Escobedo v. Illinois, 378 U.S. 478, decided in 1964 and Miranda v. Arizona, 384 U.S. 436, coming two years later. Neither case purports to dictate the suppression of every statement or utterance given in the absence of the requested warnings, but rather of statements of those arrested or on whom suspicion has focused. Appellant suggests Miranda abolishes the distinction between the investigatory and accusative phases of crime detection. We disagree. The circumstances of this case and those present in Escobedo and Miranda invite comparison. Escobedo, with no warnings whatever, was confronted in custody with an alleged accomplice who accused him of murder. Escobedo said, “I didn’t shoot Manuel, you did it.” Handcuffed, Escobedo was questioned while standing up for four hours. Additionally, he was refused access to his retained counsel, who spent several hours at the detective bureau trying to confer with him. Somewhat similarly, Miranda was taken to police headquarters and identified by a rape victim; he was then questioned by two detectives for two hours without being told he had a right to counsel, nor was his right not to be compelled to incriminate himself effectively preserved.
By contrast, the testimony of witnesses, including appellant, show she was treated with deference. Sergeant Fogley said he repeatedly urged her to obtain counsel to no avail. Appellant, 33 years of age, is described as an articulate university student with a degree in education and completing requirements for a degree in marketing; the Miranda warnings were given her in writing no less than three times prior to her confession.
Appellant urges the point that Sheriff Marshall regarded her as a suspect. But that need not tarnish these proceedings. In many homicides an aura of suspicion initially touches spouses, lovers, rivals, even acquaintances, until attention can focus more clearly on one or more individuals. There is no evidence that appellant was more suspect than others in the beginning, as the sheriff’s testimony reveals:
A: I considered her as a suspect in a homicide case. We consider everyone a suspect until we sort them out.
Q: So she was invited down to the police station at your request and you considered her a suspect at that time?
A: She was no different in the case than numerous other people we had asked to come to the station to talk to us.
Q: They were all considered to be suspects?
A: That’s correct, (p. 165.)
We cannot say the trial court’s rulings on appellant’s motions were against the preponderance of the evidence.
Appellant submits that no effort was made to comply with Rule 2.3, A. R. Crim. P., which requires that if a law enforcement officer asks a person to come to the police station he shall make it clear there is no obligation to comply. Whether the deputies observed the rule is not clear, as the question was never asked. It is clear that no objection was made to the trial court and, hence, it is not available to appellant on appeal. Meyers v. State, 271 Ark. 886, 611 S.W. 2d 514 (1981).
Appellant also urges that a mistrial should have been declared because appellant’s counsel moved to withdraw during the course of trial. In chambers, with appellant present, defense counsel informed the court he felt a fraud was being perpetrated in that appellant revealed to him the principal purpose of her defense was to protect Ben Hunt and prove him innocent. Counsel represented to the court that he could not ethically defend appellant in light of that disclosure. The trial judge asked appellant if she and counsel had discussed the issue at length and she assured him she was fully satisfied with the representation she was receiving. In the end, and after a conference between appellant and counsel, the motion for a mistrial seems to have been withdrawn with Mr. Werner’s comment, “Your Honor, we have reconsidered. We are going to call Dr. Finch to testify and also the defendant, if she wants to testify,” and with that the trial continued. (See p. 715.) Under the circumstances we could hardly say the trial court abused its discretion.
The judgment is affirmed.
Adkisson, C.J., and Purtle, J., dissent. | [
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Per Curiam.
This appeal is brought before this Court from a proceeding and determination of the Arkansas Supreme Court’s Committee on Professional Conduct, involving the conduct of appellant, John W. Walker, who is a member of the bar of this state. Roosevelt Watson, the complainant, having been previously represented by the law firm of Kaplan 8c Walker, of which appellant was a member, allegedly engaged appellant to represent him in connection with an automobile accident which occurred on July 8, 1975. On July 12, 1980, Mr. Watson initiated proceedings before the Committee on Professional Conduct alleging that appellant failed to undertake any legal action on his behalf during the period permitted by the Statute of Limitations. On April 6, 1981, after hearing, the Committee determined appellant’s conduct to be in violation of DR6-101 (A) (3) and DR6-102 (A). A Caution was accordingly given to appellant by the committee. This appeal was thereafter instituted by appellant, John W. Walker.
Appellant bases his appeal upon four points:
I.
Appellant submits that he was deprived of procedural due process by being deprived of the right to participate in an inquiry by the committee addressed to this court regarding use of discovery procedures in proceedings before the committee.
II.
Appellant further alleges that he was denied procedural due process by the failure of the committee to separate the adjudicatory and prosecutorial functions of its Executive Secretary.
III.
Appellant further states that he was deprived of procedural due process when he was found to be in violation of DR6-102 (A) without having first been charged with such violation.
IV.
Appellant lastly states that the finding that appellant’s conduct was in violation of DR6-101 (A) (3) and DR.6T02 (A) is not supported by a preponderance of the evidence presented before the committee.
The court will address each of these points in the order presented.
I.
Appellant submits, in support of his first point, that the ex parte communication of the committee, through its Executive Secretary, and the response thereto by this court, constituted a proceeding before and a determination by this court of appellant’s right to discovery procedures before the committee. Appellant cites, as supportive of his right to discovery, Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W. 2d 900 (1975). This court is unable to extrapolate from the principles of the Weems decision, supra, that any right to discovery exists in disciplinary proceedings before the Committee on Professional Conduct. Hearings before the Committee on Professional Conduct take neither the form of criminal nor civil trials. They are, for the most part, administrative proceedings carried out through an administrative agency of the court, to-wit: The Committee on Professional Conduct. The rules of procedure promulgated by this court make no provision therein for discovery in disciplinary proceedings. Discovery in such instances appears also to be unauthorized by the statutes of this state. This court feels compelled to establish such discovery procedures, as a matter of right, to proceedings of the Committee on Professional Conduct.
The record of this case does not reflect that appellant Walker was involved in the communication between this court and the Committee on Professional Conduct regarding discovery. This communication consisted of no more than administrative inquiry to the court by its own committee, seeking advice under the rule-making power of the court. Such action did not constitute a “proceeding” before this court involving appellant and appellant’s exclusion from such process could not deprive him of procedural due process. The action of the committee and this court was not one of adjudication, but was one of rule-making. Supreme Court of Virginia, et. al. v. Consumers Union of the United States, et. al., 446 U.S. 719 (1980).
II.
Appellant Walker submits, in support of his second point, that the Executive Secretary of the committee, Taylor Roberts, acted as “prosecutor” before the committee and was permitted to participate in the deliberations of the committee. He alleges this deprived him of procedural due process of law. Such a committee, with dual functions of prosecution and adjudication has been held constitutional. Withrow v. Larkin, 421 U.S. 35 (1975). The Executive Secretary did remain with the committee when it deliberated. But there is no evidence he participated or acted improperly in any way. The appellant has the burden of demonstrating that he was denied due process of law. Omni Farms, Inc. v. Arkansas Power & Light Co., 270 Ark. 61, 607 S.W. 2d 363 (1980). He has not done so. The Executive Secretary should not have remained with the committee when it deliberated. No doubt this caveat will prevent such actions in the future.
III.
It appears that appellant’s argument is uncontroverted regarding the committee’s finding that appellant’s conduct was a violation of DR6-102 (A). The basic principles of procedural due process support appellant’s entitlement to notice of any alleged violation of this rule. In re Buffalo, 390 U.S. 544 (1968). No notice of such charge appears to have been given appellant in advance of the proceeding and the finding of the committee in this respect cannot be permitted to stand. The finding of the committee regarding appel lant’s violation of the provisions of DR6-102 (A) is, therefore, accordingly, vacated.
IV.
Having disposed of the committee’s finding that appellant’s conduct constituted a violation of DR6-102 (A) upon the reasons hereinbefore stated, this court will consider appellant’s fourth point only in light of the charge that his conduct was a violation of DR6-101 (A) (3).
Review of the transcript in this proceeding leads this court to conclude that the findings of the committee, whereby appellant has been found to be in violation of DR6-101 (A) (3), are supported by a preponderance of the evidence. The findings of the committee, in this respect, are not contrary to the weight of the evidence and must be affirmed. Hurst v. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 S.W. 2d 697 (1941). This courtis not unaware that “neglect”, as set out in DR6-101 (A) (3), can be interpreted to mean any conduct ranging from a single act or omission to one of gross negligence which would support an action for malpractice. However, this court takes notice that the guidelines of this rule have been sufficiently established by its previous applications and review. The Weems case, supra, is illustrative of such. Any neglectful conduct of a member of this bar regarding the interests of a client is, in fact, contemplated as answerable under the provisions of DR6-101 (A) (3). That is not to say, however, that citations incommensurate with the degree of neglect involved under this rule will never be subject to review by this court. In the instant case it is argued by appellant Walker that his conduct falls far short of negligence which might be required to support an action for malpractice and he should not, therefore, be held accountable under the provisions of the rule. For the reasons aforesaid, this court is unable to be so persuaded. It is also to be noted that the citation levied by the committee was a “Caution” rather than a “Reprimand”. We believe such action is not incommensurate with the neglect of appellant Walker as reflected by the evidence in this proceeding. The findings of the committee in this respect will be undisturbed by this court.
With the exception of the modification of the finding as to appellant’s violation of DR6-102 (A), the findings and decision of the Committee on Professional Conduct are affirmed.
Special Justice Claude M. Williams, Jr. joins in this opinion.
George Rose Smith, J., not participating.
Dudley, J., did not participate in the final decision. | [
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George Rose Smith, Justice.
In 1961 Marion county and Baxter county Industrial Development Commission, a public corporation which issued tax-supported bonds under Constitutional Amendment 49 for the purpose of attracting an industry to the area. See Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677 (1961). The bonds were scheduled to mature over a period of 25 years, but tax collections were such that the bonds were actually paid in full in only 10 years. After the retirement of the bonds there remained in the bond account in each county surplus funds arising from the tax levy that supported the bonds.
This is a taxpayer’s suit brought to determine the proper disposition of the surplus in Baxter county, amounting to $46,222.90. All parties to the suit agree that the proof shows that the money cannot be returned to the taxpayers, because the expense of such a refund proceeding would be prohibitive. Lawrence v. Jones, 228 Ark. 1136, 313 S.W. 2d 228 (1958). The chancellor, after a hearing, directed that the surplus be paid into the County General Fund. The appellant, a taxpayer who intervened in the case, insists that the funds should instead be turned over to the Industrial Development Commission, which issued the bonds and used the proceeds therefrom to erect a factory building that is rented to the Mar-Bax Shirt Company, the industry attracted to the area.
We cannot say that the chancellor’s decision was wrong. It must be noted at the outset that the tax was not levied, as the appellant argues, for the broad purpose of securing and developing industry. By the explicit language in Section 3 of Amendment 49 the tax is levied for the purpose of paying the bonds. That purpose has been accomplished; so it cannot be said that the surplus money is earmarked for some other particular purpose. Hence the proper disposition of the fund becomes a question to be decided in the light of the evidence adduced by the litigants.
That evidence supports the chancellor’s decision. The taxes giving rise to the surplus were paid by the taxpayers of Baxter County. It is admittedly impractical to attempt to refund the money to them. Those taxpayers, however, will presumably be fairly and proportionately benefited by the application of the funds to general county purposes. Hence the trial court’s solution to the problem appears to be a good one unless the appellant has demonstrated that his proposal is a superior alternative.
That showing has not been made. The appellant brought the Industrial Development Commissioners into the case, but they filed no pleading and have riot joined in the appellant’s request that the surplus funds be paid over to them. Thus the appellant stands alone in demanding that the tax money be awarded to the Commission.
The basic defect in the appellant’s position is that he has not shown that the Commission needs the money for a public purpose. The Commission used the proceeds of the bond issue to construct a building which it leased to Mar-Bax for 35 years at an annual rental of one twenty-fifth of the construction costs. In the lease the Commission, as the lessor, assumed certain continuing obligations, such as the duty to insure the factory building, to maintain access roads to the property, to provide certain sewer facilities, etc. The appellant contends that the tax money in question should be turned over to the Commission to enable it to discharge those obligations.
The Commission’s need, however, is not shown. Section 18 of the lease provides that the rentals shall be used solely for the payment of the lessor’s obligations to the lessee. The annual rentals are unquestionably substantial. There is no proof that they have fallen short, or threaten to fall short, of enabling the Commission to meet its obligations. In fact, the Commissioners’ failure to join in the appellant’s asserted cause of action indicates the contrary.
The appellant also suggests that some years after the construction of the factory the Commission executed a mortgage to raise money to build an addition to the factory and pledged the annual rentals to secure the mortgage. There is no proof, however, that the pledge impaired the Commission’s ability to discharge its obligations to the lessee. The county judge, who alone testified upon the point, stated that there had been no delinquency in the mortgage payments, that he foresaw no problem in retiring the indebtedness, and that he did not know whether the rentals provided any surplus after the mortgage payments had been made. Thus there is simply no evidence in the record that would justify our saying that the appellant has met his burden of proving that his proposed disposition of the surplus funds is superior to that approved by the trial court’s decree.
Affirmed. | [
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Conley Byrd, Justice.
This appeal involves the validity of a foreclosure proceeding by The Miller County Improvement and Drainage District. The land involved is 22.5 acres lying north of Dooley Ferry Road in the E'A SEM of Sec. 1, T 15 S, R 27 W. Appellees Cain and Carrie Mae Davis have been the record owners since 1948, and the land has always been assessed and the ad valorem taxes paid in their names. The improvement district was formed in 1956. Appellant Floyd Isaack had bought the land at Sheriff’s sales for delinquent ad valorem taxes but the appellees, nonresidents, always redeemed them. When the Improvement District’s assessment books were prepared, the supposed owner of the 22.5 acre tract was shown to be “Smith.” Admittedly, nobody by the name of Smith has ever owned the lands involved. The constructive notice by newspaper publication in the foreclosure suit was as follows:
DESCRIPTION OF TAXES AND NAME LAND PENALTY COSTS
Miller, County, Ark. 1963 1964 1965 $
Tax Tax Tax
Smith Wá m SEH Pen. Pen. Pen.
North of Road, Sec.
1, T 15 S, R 27 W 3.50 .88 3.50 .88 .20
On December 22, 1966, pursuant to a foreclosure decree upon the above constructive service of process, the lands were sold to appellant for Ten Dollars. After the time for redemption ran out, a deed was issued to appellant.
At the trial it appeared that appellant had paid the improvement district assessments for 1962,. .and probably 1963. Appellees testified that they did not know that their lands were in the improvement district.
For reversal of the trial court’s decree holding the constructive service invalid, appellant relies upon Ark. Stat. Ann. § 21-546, § 21-547 (Repl. 1968), and our holding in Leonard v. Thompson, 228 Ark. 136, 306 S.W. 2d 869 (1957).
Section 21-546 provides for a foreclosure of delinquent improvement district assessments in chancery court and provides that: “Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such lands. ...” However a subsequent provision specifically provides that the newspaper publication shall contain a list of supposed owners together with a descriptive list of the delinquent lands.
Section 21-547 provides that neither attorneys’ ad litem nor guardian ad litems shall be required and “. . . provided, that no informality or irregularity in holding any of the meetings provided for herein, or valuation, or assessment of the lands, or in the name of the owners, or the number of acres therein, shall be a valid defense to such action. . . ”
Arkansas Statutes § 20-1124 (Repl. 1968), requires the collector to make out a list of delinquent improvement district assessments on or before October 15th of each year, "... which list shall include the name of the supposed owner as the same appears on the tax books, a description of the property and the amount of the tax due thereon. . . .” Ark. Stat. Ann. § 20-1128 (Repl. 1968), provides that a certified copy of such list shall be filed with the complaint when the improvement district files its action to foreclose the delinquent assessments.
Based upon the foregoing statutes in Leonard v. Thompson, supra, we upheld the validity of an improvement district sale in the name of the supposed owner as shown by the ad valorem tax books because Thompson had failed to record his deed and assess his taxes as required by Ark. Stat. Ann. § 84-414. Had he so assessed his lands, he would have been shown on the assessment books as the supposed owner. We followed the same rule in Sadler v. Hill, 243 Ark. 247, 419 S.W. 2d 298 (1967).
The appellees on the other hand seek to uphold the trial court’s decree on the authority of Simpson v. Reinman, 146 Ark. 417, 227 S.W. 15 (1920). In that case we held, under the statute there involved, that a constructive notice in the name of the supposed owner was insufficient when the actual owner was in possession and could easily have been identified. We need not go so far in this instance. As we understand the theory of constructive service by publication, its aim is to give the true owner possession of such facts as will lead to actual notice. To better effectuate that purpose Ark. Stat. Ann. § 21-546 (Repl. 1968), properly requires that such notice list the “supposed owner’’ of the lands. When the true owner properly complies with the tax laws (Ark. Stat. Ann. § 84-414) his name is placed on the ad valorem tax books as the “supposed owner” and in preparing the delinquent assessments the collector has the information to prepare the delinquent list that is to be attached to the foreclosure complaint.
Other courts in considering the validity of constructive service where the name of the “supposed owner” is involved have upheld the validity thereof where the name of the “supposed owner” when coupled with the descrip tion of the real estate is not misleading. See Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. ed. 1363 (1914). In doing so however, it points out that the general rule in cases of constructive service of process by publication tends to strictness in interpretation of the statutes to assure notice.
When we consider that no person by the name of Smith ever owned the lands of appellees; that appellees only owned a part of EVi of SEM; and that they had a neighboring owner by the name of Smith, we cannot say that the publication in question was not misleading. Consequently, we agree with the trial court that the foreclosure decree was void for lack of notice. To interpret Ark. Stat. Ann. 8 21-546 (Repl. 1968) as making the name of the supposed owner wholly immaterial, when the same section requires the name of the supposed owner to be shown, could raise serious questions as to constitutional due process. It’s an axiom of statutory construction that in the construction of laws that construction will be adopted which makes the law valid. Furthermore, it takes but little effort to determine the supposed owner of the property as shown by the ad valorem tax records.
Affirmed.
George Rose Smith, Fogleman, and Jones, JJ., dissent. | [
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George Rose Smith, Justice.
This suit to quiet title, brought by the appellee, presents a boundary line dispute between the appellee, a corporation holding record title to the area in question, and the appellants, a married couple asserting title by adverse possession. The chancellor found the issues in favor of the appellee. We sustain his decision as to that part of the tract lying outside a hedge planted by the appellants in 1952, but we find his decision to be against the weight of the evidence as to that part of the tract lying inside the hedge.
The parties own adjoining parcels in the Park Hill Addition to North Little Rock. In 1952 Mr. and Mrs. Reeves bought their home, which occupies a lot lying diagonally with the compass and fronting on Skyline Drive to the northeast. The appellee’s property, lying to the east and also fronting on Skyline Drive, has been vacant all along.
According to Reeves, three of his four corners had been surveyed and marked by pins set in concrete, in connection with litigation pending between neighboring landowners. The fourth corner, being the easternmost corner touching Skyline Drive, was not marked by a pin; but Reeves found a car axle, driven into the ground, which he took to be the true comer. Reeves planted a hedge from that point to the southernmost corner of his lot and took possession by maintaining a lawn between the hedge and his house. The car axle was actually about eleven feet east of the true corner, so that Reeves in fact took possession of a triangular area, eleven feet wide at the street, which was owned by Metropolitan.
The appellants’ proof of adverse possession for twenty years is virtually undisputed. Metropolitan’s principal argument is that since its land was unenclosed and unimproved, the Reeveses’ possession should not be deemed to have been adverse. The cases cited stem from our decision in Boullioun v. Constantine, 186 Ark. 625, 54 S.W. 2d 986 (1932). That line of cases, however, has to do with easements, such as those arising from pedestrian or vehicular travel across vacant lots. Those decisions have no bearing upon the adverse possession of Mr. and Mrs. Reeves, who enclosed and possessed the tract for twenty years in the good faith belief that they owned it. We find no merit in Metropolitan’s contention that it followed a practice of allowing its neighbors to use its land permissively, for no notice of any such practice was brought home to the appellants. Nor does it matter that the encroachment was not readily visible from the street, for it was Metropolitan’s duty to keep itself informed with respect to adverse occupancy of its property.
The second phase of the case involves a dog pen lying outside the hedge. In 1961 the city passed a dog leash law. Reeves built an enclosed pen outside the hedge, because he had to have a place to keep his dogs. He admits candidly that he knew the land did not belong to him. Both he and his wife testified that they did not mean to claim any land that they did not own. In the circumstances their use of their neighbor’s land was not adverse and did not ripen into title. Conway v. Shuck, 203 Ark. 559, 157 S.W. 2d 777 (1942); Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444 (1906).
The decree is affirmed in part and reversed in part, and since the title to land is involved, the cause is remanded for the entry of a decree conforming to this opinion. | [
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ORDER
No extraordinary circumstances, unusual or exceptional conditions, appearing the the record (as Provided in Rules I and II of our Criminal Rules hereafter to be known as Criminal Procedure Rules 2 and 3 adopted by this court on June 28, 1971), the White County Circuit Court, Second Division, is herewith directed to either set for trial Case No. 2579 wherein the Defendant, Franklin Ray, is charged with the crime of Burglary and Grand Larceny, on or before April 16, 1973, or, in the alternative, to release said Defendant, on his own recognizance by said date to await trial.
It is so ordered.
Fogleman, J., would deny the Writ.
Criminal Procedure Rule 2
All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
Criminal Procedure Rule 3
All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial. | [
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Frank Holt, Justice.
The appellees initiated this action to enforce an oral contract to make a will, to cancel their respective deeds, and for an accounting. The appellees are the surviving five brothers and sisters (including their spouses) of the deceased, Frank Petty, who allegedly agreed to make a will devising to appellees certain property deeded to him by them.
The appellees and their brother Frank each acquired a 1/6 interest, as surviving heirs, in a 95 acre farm upon their father’s death in 1959. Approximately three years later, appellees conveyed their respective interests to Frank by warranty deeds reciting a consideration of $3,000 each. Frank died approximately 8 years later, intestate and without issue, and the property became vested in Hazel, his wife of 28 years, pursuant to Ark. Stat. Ann. § 61 - 149 (1971 Repl.). Hazel died after the trial to enforce the alleged oral contract and before a decree was entered. Appellant was appointed executrix of Hazel’s estate and the action was revived in her name.
It was alleged by appellees that Frank constantly importuned them to sell their interests in the farm to him; that they didn’t want to sell; that he promised if they would deed him their interests he would execute a will and devise the farm back to them; that he threatened he would kill them if they failed to make such deeds; that, fearing for their lives and relying on his promise to make a will, they deeded the lands to Frank. They, also, alleged failure of consideration and prayed for cancellation of the deeds and an order directing conveyance of the lands. These allegations were denied by Hazel Petty, Frank’s widow.
The chancellor found, inter alia, that appellees had met their “heavy burden of proof” to establish that an oral contract was made to make a will devising the farm to appellees. We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony and evidence to establish such a contract is clear, cogent, satisfactory, and convincing. Williams v. Robinson, 251 Ark. 1002, 476 S.W. 2d (1972). The evidence “must be so strong as to be substantially beyond reasonable doubt.” Walk v. Barrett, 177 Ark. 265, 6 S.W. 2d 310 (1928); Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946). In the case at bar, upon a review of the evidence, we must agree with appellant that it does not meet the quantum of proof that is required for the specific performance of the alleged oral contract to make a will devising the lands.
Appellees testified that the $3,000 was only a partial consideration for their deeds. They said, as alleged, that Frank promised to will the property back to them. Further, that in his obsession to own the property he coerced them into deeding their respective interests to him by threats of physical harm to the extent of killing them unless he acquired the property; also, that he would kill anyone who bid on the property against him. One of the appellees, Ray Petty , said Frank threatened him by the use of a pistol the night before he made his deed. Some of the appellees testified that Frank, also, promised to will to them half of everything else he possessed. In answer to an interrogatory, one of the sisters stated that he promised to make her beneficiary of a $10,000 life insurance policy. It was appellees’ understanding that the conveyances to him were with the assurance that the property would be kept in the family.
Three years after the death of appellees’ father, or before appellees’ deeds were made to Frank, a partition action was commenced by one of the appellees, Ray Petty and his wife, residents of Arkansas, against his nonresident brothers and sisters (appellees and Frank) and their spouses. The court found that the lands were incapable of partition in kind and should be sold and the proceeds divided equally between the heirs. The clerk of the court was appointed commissioner and a public auction was set for December 8, 1962. On November 26, 1962, appellee Smart and her husband conveyed their interests by a warranty deed to Frank. They resided in Oregon and according to them his promise to make a will was communicated by phone and at a later date in person to Mrs. Smart. The Newtons, who also resided in Oregon, conveyed their interest to Frank by warranty deed in November, 1962. However, the exact date is not legible on the deed. According to them, the oral promise to make a will was by phone. The McGinnises, who resided in Texas, said that because of threats by Frank and his promise to make a will they conveyed their interest by warranty deed on December 5, 1962. The deed was signed • by them in the presence of a lawyer in Texas. Two days later they were accompanied by Frank and Hazel, who also lived in Texas, to Arkansas to attend the scheduled public sale. It appears that the McGinnises had the benefit of a local lawyer at the scheduled sale. Gus and Dorothy Petty, who resided in Texas and attended the scheduled sale, conveyed to Frank their interest by a warranty deed on December 8, 1962, the sale date. Dorothy testified the deed was made because of Frank’s threats and promises to make a will. Her husband was too ill to testify. The warranty deed was signed by them in the presence of and with the counsel of their own lawyer. Ray and Mary Petty, who initiated' the partition sale, conveyed their undivided-interest,.to Frank,,by warranty deed, also, on the sale date of December 8, 1962. Their deed, according to them, was • made due to his threats and promises. to make a will. They were, also, represented and counseled by their own attorney..-
The partition sale, which was attended by several bidders, was not conducted as scheduled. On that very date Ray and Mary Petty petitioned the court) however, to vacate the sale order asserting ‘-‘that. Frank A. Petty has acquired the interest, of all'other .owners of, said property, said owners being named as defendants in this action, and now .owns said, property completely.” ..It is undisputed that each of the appellees received $3,000 for their respective interests. ,
Appellees testified that they considered the-95.27 acre farm to have a value of $400 an acre in -1962 or approximately twice what they were paid. Their own witness, an adjoining landowner, who attended the scheduled - sale, testified, “I don’t know-if,I could-say specifically what the land was worth in 1963 ..... You know, putting the 9,6 acres with any large tract .... then I might háve paid $200 and $250 [per acre] for this 95 ácre tract- [i.e., $19,000 to $23,750] .... [T]here was a neighbor of mine up there that owned a tract of land at that time that joined this property that you are talking about. ... I imagine that he would have paid the figure that I mentioned there.” Appellant’s witness, a local professional appraiser, testified that the farm had a fair market value-of $17,862 as of December, 1962. It is significant that this local appraiser had, in fact, previously appraised the lands in 1959 or 1960 at the specific request of appellee Ray Petty, himself. This appraisal preceded Ray’s partition action.
In addition to paying each of the appellees $3,000 for their interests, Frank, also, paid $450 which his brother Ray owed for attorney’s fees in the partition action he had instituted against his non-resident brothers- and sisters. There was, also, an assumption by Frank of $1,675.93 loan against the land. By counting Frank’s 1/6 interest, the total consideration involved for the farm would be $20,125.93. Thus, it appears the appellees received a fair price for their respective interests.
Hazel testified that she never heard her deceased husband promise to make a will. Further, that he didn’t have a pistol and that he was riot of a violent disposition and never “got into a fight with anyone.” “He was kind and considerate.” She testified that he had purchased a house in a town near the farm for his parents and sent them sums of money periodically. His non-violent disposition was corroborated by the tenant who had rented the farm continuously since 1956 or originally from appellees’ father. According to her, Ray wanted his money out of the property, “put it up for sale,” and sold his interest after the others had done so “cause he would get more out of it that way.” Also, the appellees seemed well pleased with the transactions and they were “real sweet to me.” Hazel was suffering from cancer when she testified and died approximately á year following the trial.
Frank had previously purchased other lands in the vicinity from his father and a brother. It appears undisputed that after Frank acquired the deeds from appellees to the 95 acre farm he received the rental payments from the land during the eight years preceding his demise and no demands were ever made upon him to execute a will. There is no evidence from any disinterested witness that there was a promise to make a will or threats made in order to secure appellees’ deeds: To the contrary, court officials testified they could not recall/any “fussing or arguing or loud talk” among the appellees and Frank on the date of the scheduled partition sale at which time the last two warranty deeds were signed by Ray, his wife, and Gus, his wife, in the presence of and with the counsel of their own attorney.
In these circumstances we cannot say the evidence was sufficiently clear, cogent, satisfactory and convincing to be substantially beyond a reasonable doubt that an oral contract was made to make a will to devise the farm. Walk v. Barrett, supra, and Crowell v. Parks, supra. It is true that § 61-149, supra, (Act 303 of 1969) changed the law as to ancestral estates. However, it does not appear logical that the appellees would accede to their brother’s asserted hostility and threats and at the same time rely upon his oral promise to make a will without requiring some limitation in their respective deeds which conveyed their interests absolutely. It appears, as indicated, that most of the appellees were represented and counseled by their own attorneys in the preparation and making of their warranty deeds. The evidence does not justify the finding of an oral contract to make a will and the cancellation of the solemn and unrestricted recitals of the respective warranty deeds, each of which is supported by a fair and adequate consideration. We deem it unnecessary to discuss appellant’s other contentions for reversal.
Appellees urge, by a motion to dismiss, that an action to recover land must be revived in the names of the heirs of the parties who die during during the pendency of an action as provided by Ark. Stat. Ann. § 27-1014 (1971 Supp.) instead of in the name of a personal representative as in the case at bar. Although the appellees reserved the right to object to the revivor action, no objection was ever raised until after the cause reached this court on appeal. Therefore, since this issue is presented for the first time on appeal, we do not reach it. Griffith v. Rozell, 252 Ark. 280, 478 S.W. 2d 762 (1972). Furthermore, in the case at bar, the burden to have the action properly revived falls upon the plaintiffs, the appellees, who are the ones seeking to establish their title to the land.
The decree is reversed.
Fogleman, J., concurs because he feels that the decree was clearly against the preponderance of the evidence. | [
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Frank Holt, Justice.
The issue on this appeal is appellant’s and appellee’s respective interests in certain Arkansas lands. Both parties are divorcees of the same husband, Kenneth Perry. Appellant and Perry were married in 1962 and acquired the lands in question, 114 acres in Arkansas, as tenants by the entirety and mortgaged the property during their marriage. Thereafter or in 1968, appellant divorced Perry in Texarkana, Texas, and she was awarded the Arkansas property by the Texas court in ascertaining the rights of the parties to their jointly owned property in Texas and Arkansas. The decree did not require nor did Perry ever convey the Arkansas property to appellant.
Perry married appellee in 1970 and conveyed to her an undivided one-half interest in the Arkansas lands. Subsequently, that same year the appellee, to avoid foreclosure proceedings, paid appellant’s and Perry’s indebtedness on the Arkansas property as well as some in Texas. In 1971 appellee divorced Perry in Texas.
Approximately five months later appellee filed this action, a Bill of Equity for Contribution and Foreclosure, against the appellant alleging, inter alia, that she and appellant, as a result of the divorce between Perry and appellant, his first wife, and the deed from Perry to appellee, his second wife, became joint owners as tenants in common of the Arkansas property notwithstanding the original Texas divorce decree which awarded the Arkansas property to appellant. Appellant denied the allegation and responded as “cross-plaintiff” that she had “acquired title” to the property as a result of the Texas divorce decree and is, therefore, the sole owner on that theory only.
The chancellor found that appellant and Perry acquired the Arkansas property as tenants by the entirety and became tenants in common as a result of their Texas divorce and that appellee owned a one-half Q/z) interest in the Arkansas property as a result of Perry’s deed to her. A judgment was awarded against the appellant for her proportionate part of the mortgage payment made by appellee on the Arkansas property plus interests and costs. For reversal appellant contends that “the court erred in holding that Claria Baker [appellee] had a one-half (%) interest in the property in question and that the deed dated July 24, A.D., 1970, signed by Kenneth L. Perry was valid.”
The possibility of an estate by the entirety is neither raised nor discussed by either party. As we understand appellant’s pleadings and contention, the narrow issue presented is whether the Texas court could render a decree which vests title in her to the lands in Arkansas. It is well settled in our state that a divorce court in another jurisdiction does not have the authority or power to render a decree in rem which affects the legal title to real estate in our jurisdiction even though that court has in personam jurisdiction of the litigants. Tolley v. Tolley, 210 Ark. 144, 194 S.W.2d 687 (1946). There we said:
“And in Leflar on ‘Conflict of Laws,’ § 119, the rule is stated: ‘The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person into another is the state where the land lies.’ ”
See, also, 24 Am. Jur. 2d Divorce and Separation, § 996. In other words the courts of another state can not vest title to real property in Arkansas.
Perry, as an intervenor who does not appeal, in disavowing the purpose of his deed to appellee, admitted that he signed the deed. On appeal appellant makes the argument that Perry’s deed to appellee was intended as a mortgage and, also, there was no consideration paid by appellee to Perry. These issues are first raised by appellant on appeal and, therefore, we cannot consider them. Even if properly pleaded and presented to the trial court by appellant, suffice it to say that the deed required no consideration “since a deed is a present grant rather than a mere promise to be performed in the future. . .” Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954). Furthermore, we could not say the finding of the chan cellor that it was not shown that a mortgage was intended by the deed is against the preponderance of the evidence.
Affirmed. | [
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Steele Hays, Justice.
This appeal involves the effect of the Arkansas Guest Statute (§ 75-913 et seq.) where the driver and passenger are fellow employees.
Jerry Moore and Erby Daniels are employees of Dog-patch USA. With Daniels as passenger, Moore drove his pickup home to get a post hole digger and was struck by William Graves while en route. Daniels was injured and sued Graves, who counterclaimed. Moore’s insurance carrier (MFA) intervened to assert subrogation rights against Graves for its payment to Daniels of $10,000 under the uninsured motorist provision of its policy. Graves denied MFA’s allegations and joined Moore and Dogpatch as third-party defendants, asking for judgment over in the event of a recovery by Daniels.
Jerry Moore’s answer to Graves admitted that he and Daniels were acting within the scope of their employment but alleged that Daniels was a guest and so not entitled to recover against Moore except on proof of willful and wanton conduct.
Moore then moved for summary judgment alleging no genuine issue of material fact and attaching his affidavit stating he needed the post hole digger for work; that the company truck was out of gas so he used his own truck; that Daniels had not been asked to go but had gone simply for the ride. An affidavit from Daniels substantially tracked Moore’s, adding that it became necessary for them to go pick up the post hole digger; that he exercised no control over Moore and had not been asked to go.
The trial court found no genuine issue of material fact and dismissed Graves’s complaint. For reversal, Graves argues that it was error to grant summary judgment where reasonable men could differ in their interpretation of existing rights; that it was error to hold as a matter of law that Daniels was a guest in Moore’s truck and error to hold as a matter of law that Moore was not guilty of willful and wanton conduct. As we agree with the first two arguments we do not reach the third.
Graves does not argue that if Daniels is found to be a guest within the meaning of the statute then he would not be entitled to indemnification or contribution from Moore unless wanton conduct is proven. Troutman v. Modlin, 353 F. 2d 382 (8th Cir. 1965). Thus, the only question we need decide is whether the trial court erred in finding as a matter of law that Daniels was a guest in the Moore vehicle.
We have frequently held the status of a passenger with respect to the guest statute is a fact question for the jury’s determination. Austin v. Stricklin, 240 Ark. 555, 400 S.W. 2d 671 (1966); Hoffman v. Davis, 239 Ark. 99, 387 S.W. 2d 388 (1965); Buffington v. Wright, 239 Ark. 138, 388 S.W. 2d 100 (1965); Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449 (1962); Ward v. George, 195 Ark. 216, 112 S.W. 2d 30 (1937); Carnes, Admx. v. Strait, Judge, 223 Ark. 962, 270 S.W. 2d 920 (1954). Moreover, because the guest statute is in derogation of the common law, if for no other reason, we have held guest statutes are not to be extended beyond the correction of the evil which induced their enactment. Ward v. George, supra. Thus, a passenger’s claimed status of guest will be closely scrutinized.
Here, the affidavits of Moore and Daniels do not render their relational status under the guest statute closed to genuine dispute. They are interested parties and their statements are open to challenge even where the underlying facts may appear undisputed. Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938). Graves is entitled to have the purposes and motives of their mission as co-employees serving their employer tested under cross-examination and to have the evidence, with the inferences to be drawn from it, decided by the jury as an issue of fact. Appellant points out that even Daniels’ affidavit is subject to more than one interpretation, as it states, “it became necessary for Jerry Moore and I to drive into Harrison to pick up a post hole digger. ” (Emphasis added.) We conclude that ordinarily where two employees are on a mission for their employer during regular hours of employment the status of the passenger-employee under the guest statute is a question for the jury to decide. See Ball v. Hail, supra.
We also agree with appellant’s argument that even when facts are uncontroverted, as can be said of these, if fair-minded men might honestly differ as to the conclusion to be drawn from those facts, then the question should go to the jury. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959); St. Louis I.M. & S. Ry. v. Fuqua, 114 Ark. 112, 169 S.W. 786 (1914).
Summary j udgment is an extreme remedy and not to be readily employed. Its object is to determine whether there is an issue to be tried, not to determine the issue itself. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). Appellant Graves was entitled to have the issue of Daniels’ status under the guest statute submitted to the jury.
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Lyle Brown, Justice.
This is a workmen’s compensation case. Appellee-claimant asserted that she suffered a compensable fall in the course of her employment and was sustained by a unanimous commission and the circuit court. Appellant here contends that the finding that claimant suffered a fall on appellant’s premises is not supported by substantial evidence; that if she did suffer such an occurrence it was not the cause of claimant’s injuries; and that error was committed in not finding that the healing period ended on or about September 1, 1971.
Appellee, a sixty year old widow, was a telephone solicitor for appellant at the place of business on Broadway in Little Rock. Appellant was engaged in the business of selling and installing aluminum siding, doing quite a volume of business. Solicitors would obtain business by calling prospects listed in the telephone directory. If a call resulted in a favorable reception, the name of the prospect would be given to a solicitor who would contact the prospect and endeavor to firm up a sale.
If appellee-claimant sustained a fall on appellant’s premises, then here are the facts in capsule form which sustain the contention. Appellee and Phyllis Wyatt were on duty at the company headquarters on the night of July 20, 1971, working in different rooms which appear to have been adjacent. We gather that there were four offices which joined. Between the warehouse and the offices there is a glass and appellee was sitting with her back to the glass with her headphone in place. Her attention was attracted by a noise or a shadow which caused appellant to look up. Through the glass she could see a man “in a staggering position and pathetic looking.” She hurriedly locked the door just to her back, which door was between the warehouse and the office. She called to Phyllis to lock her door because a man might be coming in on them. Phyllis locked the back door and then went to lock the door to the manager’s office. At the same time appellee went from her desk to the front office to lock the door that led in off the street. She was hurrying because she wanted to beat the man to the door. In the front office there was a box on the floor containing a substantial amount of literature and it was in appellee’s path. The box was almost as high as appellee’s knees. She tripped over the box and fell completely over it and on to a floor of concrete and tile. She hurriedly scampered to her feet and reached the door just as the man was reaching for the door knob. She managed to get it locked and the man turned and went down Broadway.
Phyllis walked into the front office and appellee reported the fall and complained of being hurt. They then went into appellee’s office and appellee sat down. Phyllis cleaned appellee’s hands, arms and knees, all of which were dirty from the fall. Phyllis did not see appellee fall because she was busy at the time of the incident locking the door which led to the warehouse. Phyllis verified that she got a glimpse of the intruder; that appellee reported the fall to her; that she cleaned appellee’s hands with a rag because they were dirty; and that she bathed appellee’s legs with alcohol. From the evidence abstracted we think it sufficient to reasonably deduce that appellee suffered a fall.
Appellant next contends that any fall appellee may have received was not the proximate cause of her injuries. Appellee is extremely overweight and had admittedly suffered for many years with intermittent attacks of thrombophlebitis in her left leg. At the time of the described occurrence her leg was swollen from that ailment and she kept it elevated while doing her telephoning. Therefore, says appellant, the condition of the knee was attributable to the phlebitis; appellant introduced medical testimony to that effect.
Appellee sought no medical aid that night, although she complained to Phyllis that she hurt her knee, that she believed she had a fractured rib, ^nd that her breast was injured. The next morning the pain was so great that she went to the emergency room of the hospital at about 7:30 a.m. and had them call Dr. Hoover. The doctor hospitalized appellee, where she remained under his treatment for ten days. “She was complaining of difficulty in breathing and pain in her knee. We examined her and took some x-rays, and she had a massive hematoma of her breast and was tender on her left side, and her knee was painful. The left knee was bruised and discolored, but x-rays of her knee and ribs were negative. I put a rib splint on her, and she was unable to walk so I hospitalized her.” The doctor concluded, with respect to the pain in the rib area, that appellant had a hemorrhage beneath the membrane which nourishes the bones in the ribs. “This condition causes one to hurt worse than broken ribs. . .”
Appellant introduced the testimony of Phyllis to the effect that the latter saw a bruise on the knee at the time she administered first aid. Dr. Hoover said he saw no evidence of an old bruise and that if the ruptured blood vessel is close to the skin the discoloration will occur instantaneously. “I saw bruises and discoloration the morning I treated her and it was ten times worse five days later.” It was also the doctor’s opinion that the fall was the cause of a flare-up of the thrombophlebitis.
When the testimony of appellee and Dr. Hoover is taken together we are unable to say that the commission was in error in finding that the injuries were attributable to the fall.
Appellant’s final contention is that appellee’s healing period ended on or about September 1, 1971. The contention is based substantially on the fact that, as appellant interprets the testimony, Dr. Hoover testified that by September 1 the patient had made considerable progress and consideration should be given to going back to work. (The controversy about the ending of the healing period arises from the fact that appellee had a flare-up with her knee and was again hospitalized from September 18 to October 4). Dr. Hoover explained the back-to-work suggestion in these words:
On September 3 I suggested that she enlarge her activities by attempting to drive her car and if she could sustain a normal degree of activity then I would have assumed that she could go to work. However, before she got through with the test period, she developed additional problems and got to where she definitely could not work.
Dr. Hoover further testified that he attributed the knee problem in September to the fall in July. “The thrombophlebitis flare-up that I saw on September 14, in my opinion, was caused by the fall and injuries that she got on July 20, 1971.”
We are concerned only with whether there was substantial evidence to support the commission. Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S.W. 2d 93 (1970). In evaluating the evidence we interpret it in a light most favorable to the commission’s findings. McCollum v. Rogers, 238 Ark. 499, 382 S.W. 2d 892 (1964). And, as said in McCollum, on disputed questions of fact we cannot Set aside the commission’s findings. Even though the evidence would support another conclusion, or if the preponderance of the evidence would indicate a different result, we still affirm the commission if reasonable minds could reach the conclusion reached by the commission. Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1971).
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George Rose Smith, Justice.
The information charged that Anderson delivered a quarter of a pound of marihuana to each of two undercover officers, for a consideration of $135 each. The jury’s verdicts were “Guilty,” with a five-year sentence on each count. For reversal Anderson argues that the State’s proof was insufficient, because nothing of value was exchanged for the marihuana. We do not regard that exchange as being essential to the commission of the offense charged.
The undercover officers’ testimony was that they had arranged to buy two quarter-pounds of marihuana from one Ronald Wills. When they went to Wills’s house, Anderson answered the doorbell and accompanied them to their car to complete the purchase. They said that Anderson confirmed the agreed price of $135, said that the marihuana was of good quality, and handed each officer a plastic bag of marihuana. The officers, fearing that Anderson had seen their identification lying on the seat of the car, arrested him without first paying for the drugs. Anderson denied that there had been any discussion of marihuana or of a price. He said that as he was leaving the house Wills handed him a paper sack. He testified he accompanied the officers to their car because he wanted a ride, and he thought he was giving them a sack containing old clothes. The jury evidently believed the State’s testimony.
Our statute is, with some amendments, the Uniform Controlled Substances Act, 9 U.L.A. 187 (1979). The Uniform Act does not require a sale of a controlled substance, only its delivery, the definition being:
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. [Our italics.]
The Supreme Court of Mississippi reasoned that the word delivery was used “to relieve the state of the task, oftentimes difficult if not impossible, of proving the consideration paid for the contraband, its intentions being to thwart the exchange or transfer of the substance whether accompanied by consideration or not.” Wilkins v. State, 273 So. 2d 177 (Miss., 1973).
Our legislature modified the Uniform Act’s definition of delivery by inserting the further requirement that it be “in exchange for money or anything of value.” Ark. Stat. Ann. § 82-2601 (f) (Repl. 1976). It is reasonable to believe that the added words were intended to make the comparatively severe penalty for delivery inapplicable to a gratuitous transfer, such as the action of two or more persons in smoking one marihuana cigarette by passing it around. Our legislature, however, left intact the Uniform Act’s provision that a delivery includes an attempted transfer. Here the jury could find from substantial evidence that Anderson attempted to transfer the two bags of marihuana in exchange for an agreed sum of money and had completed his part of the transaction. The proof therefore supports the convictions.
Affirmed.
Purtle, J., dissents. | [
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Darrell Hickman, Justice.
The Arkansas State Podiatry Board revoked the license of John W. Cain, a podiatrist, to practice in this state. He appealed that decision to the Circuit Court of Pulaski County and the court found substantial evidence to support the Board’s findings and affirmed its decision. Cain raises six arguments for reversal on appeal, five of which relate to questions of law. The sixth challenges the sufficiency of the evidence before the Board. None of the five questions of law were presented to the circuit court and the circuit court did not rule on them. Therefore, we may not consider them on appeal.
Dr. Cain is a resident of Bella Vista and has offices in Bentonville, Arkansas and Joplin, Missouri. He is licensed to practice podiatry in four states. Several complaints against him were filed with the State Podiatry Board and in 1979 the Board notified Dr. Cain that a hearing would be held on his treatment of four patients. The Board met on three separate occasions and heard testimony in this matter. Two of Dr. Cain’s patients testified, Mr. Ernest Staudt and Charles Tosch. Dr. Daniel Taylor, a podiatrist who formerly practiced in Newport, Arkansas, and Dr. Carl Kendrick, an orthopedic surgeon, testified for the state. Marsha Clay- brook, an employee of Blue Cross-Blue Shield, testified regarding claims submitted by Dr. Cain. Four expert witnesses, all podiatrists, testified on behalf of Dr. Cain. The Board requested, and counsel for Dr. Cain stipulatéd, that the records of twelve patients would be submitted to the Board for their study and consideration. Dr. Cain has been represented by three different attorneys in this matter. At his first two hearings he was represented by Mr. William R. Wilson of Little Rock. At his third hearing and on his appeal to the circuit court he was represented by Mr. Bob Scott of Little Rock. On this appeal he is represented by a firm from Kansas City, Missouri.
At the conclusion of the Board hearings, it found that Dr. Cain committed malpractice and failed to comply with a sufficient standard of care in the treatment of Mr. Ernest Staudt. The Board further found that Dr. Cain failed to maintain proper records of procedure and medication for his patients in violation of the rules and regulations of the board and Arkansas law.
Mr. Ernest Staudt of Rogers, Arkansas, an employee of Union Carbide, testified that he first went to Dr. Cain with a problem regarding his foot. He said that Dr. Cain told him his big toe needed straightening, that it would be a simple matter, and that he should be back to work in about three days. Staudt stated that he made arrangements so that he would not miss any work. He said before the operation he was asked to sign a consent form which was blank. He testified that he did not know his toe would be operated on until he was in Dr. Cain’s office and he realized that the doctor was using a kind of drill on his toe. He went back to Dr. Cain twice a week for over four months and said that he regularly complained of pain and discomfort. He said that each time the doctor would simply remove a bandage which would be bloody and replace it with a clean one. After Staudt’s complaints of pain the doctor prescribed some medication for him. In October of 1979, Staudt consulted another doctor and was referred to Dr. Taylor, a podiatrist in Newport. Dr. Taylor advised him that the operation he had was not successful and he had two choices. Staudt chose the treatment that would require a bone graft and it was performed by Dr. Taylor. Some post-operative work was done by Dr. Kendrick of Fayetteville since he was nearby and more available to Mr. Staudt who lived in nearby Rogers.
Dr. Cain conceded in his testimony that he did not note in Staudt’s medical records that he had prescribed the drug Dolene, which is a “sister” to Darvon. He also conceded that he did not prepare an operative report on the operation. In fact, the record on Mr. Staudt simply shows the days over several months that he visited Dr. Cain. Dr. Cain denied that the consent form was signed in blank and said his nurse had filled in the form. He conceded that he had told Mr. Staudt that he would “straighten” the big toe but said he went into detail with him about the operation. He denied that the toe was bloody each time Staudt came back but conceded that Staudt complained of pain and that he prescribed the Dolene for the pain. Dr. Cain and his counsel both conceded that the records in Staudt’s case were not adequate.
Dr. Taylor, a podiatrist, who at the time of the hearings was practicing at the Veteran’s Hospital in Milwaukee, Wisconsin, testified that Dr. Cain used the wrong procedure, that the second toe instead of the great toe should have been treated. Dr. Kendrick, although an orthopedic surgeon, was not qualified as an expert witness in podiatry; but he was allowed to testify that the procedures used by Dr. Cain were not satisfactory. Dr. Kendrick said that he and the president of the county medical society visited Dr. Cain about complaints that had been made about his operations and procedures.
Miss Marsha Claybrook, an employee of Blue Cross-Blue Shield, testified that because of Dr. Cain’s numerous claims it was decided that all of his claims to Blue Cross-Blue Shield would be placed on a “one hundred percent review”. That is, everything that was sent in in Dr. Cain’s name was to be reviewed by a doctor before he was paid. The reason given was that his procedures exceeded the normal in several categories. For example, in one quarter his claims for x-rays of the foot were 200% above the normal for x-rays by a podiatrist. On his osteectomies his percentage was 1,400% above normal. In urinalysis during one quarter he was 2,751% above normal. She said, however, that there had been no evidence of any fraud in his claims.
Of the twelve patients’ records which Dr. Cain submitted to the Board, the Board found that ten of those records did not contain any record of the treatment of the patient but only records of insurance claims. This was not disputed.
Dr. Cain called four witnesses who were podiatrists and they all testified that Dr. Cain used proper procedures and was not guilty of any malpractice in the treatment of Staudt. Dr. Don S. Pritt, one of those witnesses, testified that he had been in practice for twenty-five years and had known Dr. Cain for many of those years. He said that Dr. Cain had an excellent reputation as a podiatrist. Through personal observations he knew that Dr. Cain acted with extreme care both before and after an operation. Dr. Albert R. Brown, a podiatrist, licensed in six states and a Canadian province, and chief podiatrist at Elliott General Hospital in Detroit, Michigan for a number of years, testified that there were at least twenty different procedures that could have been used on Staudt and the procedure chosen by Dr. Cain was appropriate.
After the third hearing in this matter and after the Board had issued its findings of fact and conclusions of law, Cain’s attorney at his third hearing, Mr. Bob Scott, filed a petition for review with the Pulaski County Circuit Court. Nowhere in that petition is any question raised regarding any legal issue. It simply asks that the circuit court review the findings of the Board. The circuit court heard further testimony from Dr. Cain which, essentially, regarded his experience and reputation. After that, the court issued two relevant findings: There was substantial evidence to support the Board’s findings and the Board did not act arbitrarily.
At no time did Dr. Cain’s counsel argue to the circuit court that there was anything improper in the notice to Dr. Cain, the board had no authority to act as it did or any impropriety existed except the substantiality of the evidence. Now on appeal, for the first time, five legal arguments are raised with regard to why the circuit court’s judgment should be reversed and the Board’s findings dismissed. First, it is argued that Ark. Stat. Ann. § 72-307 (Repl. 1979) specifically defines what “grossly unprofessional” conduct is, and it does not include the misconduct attributed to Dr. Cain by the Board. While it is conceded the Board has authority to promulgate rules and regulations, it is argued these rules cannot exceed the limits of Ark. Stat. Ann. § 72-307. Second, it is argued that the Board’s rules and regulations had not been filed in the Circuit Court of Benton County as required by law and were therefore ineffective. The record reflects that they were filed with the Secretary of State and mailed to the Benton County Circuit Clerk but not filed. A copy of them was provided to counsel for Cain before the first hearing. Third, it is argued that Cain was denied a fair and impartial hearing because some of the Board members were prejudiced as evidenced by their questions during the hearing. At the third hearing counsel for Cain invited the Board to ask all the questions rather than use the usual format of counsel asking questions. Fourth, it is argued that a fair notice was not given to Dr. Cain because he was not notified that any inquiry would be made regarding medical records. His counsel at the first two hearings stipulated that twelve records could be considered by the Board. Fifth, it is argued that Ark. Stat. Ann. § 72-307 requires that both unprofessional conduct and dishonest conduct must be found, and since the Board found no dishonest conduct the findings must fail. Finally, it is argued there was no substantial evidence to uphold the Board’s order.
Since the only issue presented to the circuit court was that of substantial evidence, that is the only issue we can consider on appeal. Wilson v. Lester Hurst Nursery, Inc., 269 Ark. 19, 598 S.W. 2d 407 (1980); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980); Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979). Considering that issue, we recognize that it is the duty of an administrative board, such as the Podiatry Board, to hear the evidence, decide the credibility of witnesses and make findings of fact. Terrell Gordon v. Gordon L. Cummings, 262 Ark. 737, 561 S.W. 2d 285 (1978); Arkansas Savings & Loan Association Board v. Central Arkansas Savings & Loan Association, 256 Ark. 846, 510 S.W. 2d 872 (1974).
Our review of an administrative decision is to be based on the entire record, not merely on that evidence that supports the administrative ruling. In that review the record must reflect substantial evidence for the Board’s findings. White County Guaranty Savings & Loan v. Farmers & Merchants Bank of Des Arc, 262 Ark. 893, 562 S.W. 2d 582 (1978). But it is not the place of the circuit court or us to substitute our judgment for that of the Board as to the facts.
It is not undisputed that the records were inadequate. The Board chose to believe Mr. Staudt and the witnesses called by the state regarding the malpractice finding and certainly there is substantial evidence in the record to support that finding.
Affirmed.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
Appellant Danny Ray Davis was convicted of robbing the First National Bank of Fort Smith. The jury found that he was a habitual offender, having been convicted of eight previous felonies, and recommended a thirty-five year prison sentence and a $10,000 fine. We affirm.
The pertinent facts are that appellant started drinking heavily on December 3,1980. During the morning and early afternoon of the 4th he continued to drink in several Fort Smith bars. He then went to a drive-in window of the bank and handed a note to the teller through a slide-out drawer. The note demanded either $500 or $5,000 and the teller gave him seven or eight ten-dollar bills and he departed. The teller and a parking lot attendant described appellant. In addition, a jacket matching the description of one which appellant had been wearing in the bars was found in the main bank building. Early the next morning Noel Harvey, a detective who knew appellant and his family, went to appellant’s apartment. Appellant invited him in, offered him a cup of coffee and began to answer questions. Appellant admits that he was given a valid Miranda warning at home as well as after he was taken to the police station. At first, appellant said that if he robbed the bank he did not remember it but later he gave a confession which was admitted into evidence over his objection. He now makes a two-fold argument that the trial court erred in failing to suppress the confession because, one, he was arrested at his residence without a warrant in violation of the doctrine announced in Payton v. New York, 445 U.S. 573 (1980) and, two, the confession was signed pursuant to a promise of leniency and assurance of help in making bail.
Payton, supra, holds that the Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest. Here, there was no forcible entry into appellant’s home. Instead, there was a consensual entry of the type that is not barred by Payton. State v. Filiatreau, 274 Ark. 430, 625 S.W. 2d 494 (1981).
The second prong of appellant’s suppression argument is one which, over the years, we have had to decide on a case-by-case basis by looking at the totality of the circumstances. The applicable law is simple. If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances. The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Because these two factors create such a multitude of variable facts, it has been impossible for us to draw bright lines of substantive distinction.
The procedural rules are clear. The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). While we do not reverse the trial court's finding unless it is clearly erroneous, we do make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). A statement induced by fear or hope of reward is not voluntary. Greenwood v. State, 107 Ark. 568, 156 S.W. 427 (1913).
In determining the totality of the circumstances we first look at the statement of the officer. Some statements are so clearly promises of rewards that we do not find it necessary to look past the statement to decide the case. Examples are the case where a deputy prosecuting attorney told the prisoner who faced a possible death sentence that a confession “wouldnotresultin more than 21 years’ incarceration.” The prisoner confessed and received a life sentence. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975). Similarly, we reversed a conviction and the maximum sentence based on an inculpatory statement when the prisoner and his attorney were led to believe there was a mutual understanding that in exchange for the giving of information the officials would, at the least, recommend leniency and perhaps even dismiss the case. Teas v. State, 266 Ark. 572, 587 S.W. 2d 28 (1979). In other cases the officer’s statement, standing alone, does not provide sufficient information for us to decide the case. In the case at bar we do not have a clear promise of reward. Detective Harvey testified: “I told him that I didn’t think it would be hard on him if he did make a statement. I told him that considering his record there might be a possibility [of probation],.. I didn’t guarantee anything. I made that clear, there was no guarantee ...” (At this time Harvey did not know about appellant’s prior convictions.)... “I told him I would attempt to help him get his bail set, which I did.” This type of statement by the officer, standing alone, is not determinative. For example, “it would probably help if you go ahead and tell the truth” was approved. Harvey v. State, supra. “Things would go easier if you told the truth” was allowed to stand. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979). On the other hand a confession was held improper when the officer said, “I’ll help you any way that I can.” Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979), and we reversed a conviction when a deputy prosecutor said, “I’ll help all that I can.” Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972). The real difference in these cases does not lie in the statements for they, alone, are neither simple admonitions to tell the truth nor are they clear promises of reward. They can be either. The true distinction lies in the second group of factors considered in the totality of circumstances — the vulnerability of the defendant. In the first two cases cited, Harvey v. State, supra, and Wright v. State, supra, where the statements were not suppressed, the record demonstrates that the prisoner was not misled. In Harvey, the prisoner, a habitual offender, testified he understood his rights. In Wright, the 30-year-old prisoner was a habitual criminal who had been arrested some twenty times and incarcerated six or seven times and was obviously educated in criminal procedure. Under these circumstances we labeled the officer’s statement an admonition to tell the truth and not a promise of reward.
On the other hand, similar statements have been held to be promises of reward when the prisoner is vulnerable to some innuendo. “I’ll help you all I can” was the deputy prosecutor’s statement but the fact of vulnerability which led us to suppress the confession was that the prisoner requested an attorney and he was furnished the deputy prosecutor who took the statement. Shelton v. State, supra. The same “I’ll help you if I can” coupled with prisoner vulnerability caused us to suppress the confession in Tatum v. State, supra, where the prisoner was the first of three persons arrested. While he was a habitual offender and probably knew his rights, the police did not know the names of his accomplices. In reliance on “I’ll help you if I can” he gave their names and a statement. The accomplices were then allowed to plead guilty on negotiated pleas and the accomplices and the statement were used against him for conviction. Tatum v. State, supra.
In the case before us the appellant was 40 years of age with a ninth grade education, was not questioned at length, admits that he was read his rights and, most importantly, stated he understood them. He was no stranger to the criminal justice system, having been previusly convicted of eight felonies and having served time in Oklahoma. While appearing to be “hung over,” he was not physically ill. The State’s evidence was that he was lucid, understood his rights and did not rely on any promise. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, supra. We hold that the trial court’s ruling that the confession was voluntarily and knowingly given was not clearly against the preponderance of the evidence.
Appellant next contends that the court erred in allowing into evidence the testimony of Earl Collins, a latent fingerprint specialist with the Federal Bureau of Investigation, because there was a missing link in the chain of custody of the fingerprint card. Sergeant Arthur Langston of Fort Smith testified that he signed the fingerprint card, packaged it and mailed it, by certified mail, to the Federal Bureau of Investigation, Washington, D.C., attention Fraudulent Document Examiner and Latent Fingerprint Section. There some unknown person opened the evidence package and delivered the fingerprint card to Collins for examination. The chain is complete from that time. Obviously there is one missing link in the chain of evidence, that is, the person who opened the package at the Federal Bureau of Investigation offices in Washington, D.C. There is little likelihood there has been any tampering with the exhibit and the trial court did not abuse its discretion in admitting the evidence. In establishing a chain of custody prior to the introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, it has not been tampered with. Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979). See also Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).
After the jury returned a verdict of guilty the trial proceeded to the sentencing phase and the court permitted the State to introduce into evidence photocopies of the judgment and sentence of appellant’s prior convictions in the State of Oklahoma. These records were part of the “pen packet” from the Oklahoma Department of Correction and were certified by the proper Oklahoma authority. Appellant contends the court committed error in admitting the photocopies of the prior convictions, because, although they recite that he had an attorney, they do not contain the name of his attorney. This argument is without merit and was settled in Clem & Gilbert v. State, 254 Ark. 580, 495 S.W. 2d 517 (1973). The judgments reflect the court and its officers were present in open court along with the defendant and his attorney, that thedefendant pleaded guilty and was sentenced. We are satisfied from the exhibits that appellant was represented by an attorney at each of his convictions. In addition, in his testimony, appellant referred to his attorney.
Finally, the appellant contends that the judgment is excessive. The sentence is within the range of sentences for a defendant convicted of a class B felony who has four or more previous convictions. Ark. Stat. Ann. §§ 41-1001 (2) (b) and 41-1101 (1) (a) (Repl. 1977).
Affirmed.
Hickman, Purtle and Hays, JJ., dissent. | [
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Robert H. Dudley, Justice.
This case involves the construction of Rule 4 (i) of the Rules of Civil Procedure, Ark. Stat. Ann. Vol. 3A (Repl. 1979). The Court of Appeals decided the case, Watling Ladder Co. and P. C. Hardware & Machinery Co. v. Aldridge, 3 Ark. App. 27, 621 S.W. 2d 499 (1981). However, Rule 29 (1) (c) of the Rules of the Supreme Court and Court of Appeals, Ark. Stat. Ann. Vol. 3A (Supp. 1981), provides that jurisdiction shall be vested in the Supreme Court to interpret a rule or regulation of any court. This case should have been certified to this court by the Court of Appeals because Rule 29 requires that all such cases be decided by this court. To resolve any confusion we have granted certiorari.
Petitioners C. L. Aldridge and Robbie Aldridge filed a products liability suit against respondents Watling Ladder Company, a non-resident manufacturer, and P. C. Hardware, a resident retailer of ladders. On February 28, 1980, in accordance with A. R. Civ. P., Rule 4 (e) (3), the long-arm service rule, petitioners’ attorney sent the complaint and summons by certified mail to Watling Ladder Company in Valley, Park, Missouri. This rule authorizes service outside the state . .. “By any form of mail addressed to the person to be served and requiring a signed receipt;...” The complaint and summons were received by the president of Watling on March 3, 1980.
However, when petitioners filed their complaint they did not cause the court clerk to appoint an attorney ad litem. On April 7, which was more than 30 days after respondent Watling received the complaint, the petitioners filed a motion asking for a default judgment against Watling and asked for the appointment of an attorney ad litem. The next day, April 8, an attorney ad litem was appointed, and on April 24, Watling’s answer was filed. Thus respondent Watling’s answer was filed within 30 days of the appointment of an attorney ad litem but more than 30 days from the date of notice by mail. The trial court granted a default judgment. We affirm the Court of Appeals in reversing and remanding to the trial court.
Rule 4 (i) provides:
(i) Default in Case of Service by Mail: Before judgment is rendered against a defendant who is served by mail only or by warning order and who has not appeared, it shall be necessary —
First. An attorney be appointed at least thirty [30] days before the judgment is rendered to defend for the defendant and inform him of the action and of such other matters as may be useful to him in preparing for his defense. He may take any step in the progress of the action, except filing an answer, without it having the effect of entering the appearance of such defendant. The attorney may be appointed by the clerk when a warning order is made, or by the court, and shall receive a reasonable compensation for his services, to be paid by the plaintiff and taxed in the costs. Where service is to be made only by mail, the clerk shall appoint an attorney ad litem upon application of the party or attorney seeking to have such service. [Emphasis supplied.]
The meaning of the rule is that a default judgment cannot be taken against a non-resident defendant who has been served by mail until thirty days have elapsed after the appointment of an attorney ad litem and the attorney ad litem’s report has been made. Here the plaintiffs, petitioners, did not cause the court clerk to appoint an attorney ad litem on the date the case was filed. The attorney ad litem was not appointed until a later date and the respondent filed its answer within 30 days of the appointment of the attorney ad litem. As a result, the filing of the answer was timely and a default judgment should not have been granted.
The rule and this interpretation are in accordance with decisions construing the prior comparable statutory provision. See Frank v. Frank, 175 Ark. 285, 298 S.W. 1026 (1927), and Gaines v. Gaines, 187 Ark. 935, 63 S.W. 2d 333 (1933).
There is a second reason for reversing the default judgment against respondent Watling. P. C. Hardware was allowed to file a late answer by agreement of petitioners’ attorney and P. C. Hardware’s attorney. Respondent Watling contends that the answer of P. C. Hardware should inure to Watling’s benefit. We agree. It has been settled in this State for almost a century and a half that the answer of one co-defendant inures to the benefit of the other co-defendants. Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W. 2d 445 (1979); Bruton et al v. Gregory, 8 Ark. 177 (1847).
Petitioners contend that P. C. Hardware is technically in default as its answer was also late and therefore there is no answer by P. C. Hardware which can inure to the benefit of respondent Watling. This argument overlooks the fact that P. C. Hardware did file a late answer, the petitioners did not move to strike it and they admit that the late answer is filed by agreement. Under the circumstances a default judgment could not be granted against P. C. Hardware. Therefore, the answer of co-defendant P. C. Hardware denying the material allegations of the complaint inures to the benefit of Watling. Hence, default judgment should not have been entered against Watling.
Affirmed.
Adkisson, C.J., and Hays, J., not participating. | [
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RAYMOND R. ABRAMSON, Judge
| Metropolitan Insurance Co. (“Metropolitan”) and MetLife Tower Resources Group, Inc. (“MetLife”), appeal the Pulaski County Circuit Court’s order approving the petition of B.J.L.Y., LLC (“BJLY”), for the transfer of periodic payments from a structured settlement agreement. On appeal, Metropolitan and MetLife argue that the circuit court erred in approving the transfer because (1) the transfer violates the Arkansas Structured Settlement Protection Act’s (“ASSPA”) prohibition on dividing periodic payments between a payee and a transferee; (2) the settlement agreement contained an anti-assignment provision; and (3) the transfer is not in the best interest of the payee, Lisa Broada-way. We reverse.
The structured settlement agreement arose out of the resolution-and-settlement action from the United States District Court for the Eastern District of Texas for the wrongful death of David Broadaway. The agreement provided that Liberty Mutual Insurance Group was to|2pay MetLife a sum of money to fund periodic payments to David’s daughter, Lisa, through the purchase of an annuity from Metropolitan. The periodic payments included lump sum payments of $12,000 on July 29, 2016, and $20,000 on July 29, 2021, and monthly payments of $1,378, increasing at a 3% compound annual rate, commencing July 29, 2021, and ending June 29, 2051. The settlement additionally provided that the “[cjlaimants acknowledge that the [pjeriodic [payments cannot be accelerated, deferred, increased or decreased by the [c]laimants; nor shall the [claimants have the power to sell, mortgage, encumber, or anticipate the [periodic [payments, or any part thereof, by assignment or otherwise.” The agreement is signed by Suzanne Hewlett, as mother and court-appointed guardian of Lisa. The agreement was filed with the district court on October 8, 2006.
On January 3, 2014, the Craighead County Circuit Court entered an order approving a transfer of Lisa’s payment rights to J.G. Wentworth Originations, LLC (‘Wentworth”), for $9,500. The approved transfer included the lump sums due in 2016 and 2021.
On December 26, 2014, Lisa entered into a second contract with Wentworth for a transfer of a portion of the $1,378 monthly payments. Specifically, Lisa agreed to sell Wentworth 120 monthly payments of $300 each, increasing at 3% annually, beginning July 29, 2021, and ending on June 29, 2031, for $11,000. On December 29, 2014, Went-worth subsequently assigned its rights and liabilities under the contract to BJLY.
On January 12, 2015, BJLY filed a petition in the Pulaski County Circuit Court to approve the transfer of the periodic payments. BJLY notified Metropolitan and MetLife of the | ^petition. On- February 42, 2015, Metropolitan and MetLife jointly filed an objection to the petition.
On March 3, 2015, the circuit court held a hearing on BJLY’s petition, Metropolitan and MetLife appeared at the hearing and objected to the transfer. Lisa testified that she wanted to use the proceeds from the sale of the periodic payments to help support three children that she and her wife planned to adopt from foster care. She explained that she and her wife could afford the children’s daily expenses but that they needed the money from the periodic payments for the initial costs such as furniture, clothing, and school supplies. Lisa stated that she had not attempted to obtain-a loan to fund the adoption because she did not want the debt. She also testified that she understood that she would be receiving less money than she was otherwise entitled. When counsel for Metropolitan and MetLife asked Lisa if she knew how much money she would be giving up, Lisa responded that she had not done the math. Counsel then informed her that she would be giving up $41,000.
' Thereafter, on March 9, 2016, the circuit court entered an order approving BJLY’s petition. The order states:
9. The transfer of the annuity payment ... 120 monthly payments of $300 each, increasing at 3% annually, beginning on July 29, 2012 and ending on June 29, 2031 ... as mentioned in [pjetitioners [pjetition is hereby approved.
10. Metropolitan Tower Life Insurance Company a/k/a MetLife Tower Resources Group, Inc., and Metropolitan Life Insurance Company are hereby directed and . authorized to deliver and to make payable to B.J.L.Y., LLC, and its successors and/or assigns the [transferred [p]ayment(s) ...
11. By ’ making and delivering the [transferred [p]ayment(s) mentioned herein to B.J.L.Y., LLC, and its successors and/or assigns as set forth in the preceding paragraph, Metropolitan Tower Life Insurance Company a/k/a Met-Life Tower Resources 14Group, Inc. and Metropolitan Life Insurance Company will be discharged from all liability for the [transferred [p]ayment(s) due [to] L. Broadaway.
12. B.J.L.Y., LLC, ... shall defend, indemnify and hold harmless Metropolitan Tower Life Insurance Company a/k/a MetLife Tower Resources Group, Inc. and Metropolitan Life Insurance Company ... from and against any and all liability from all claims in connection with, related to, or in any way arising out of the issuance of the [transferred [p]ayment(s) to B.J.L.Y., LLC, whether such claims are brought by L. Broada-way ..., by any individual or entity to which B.J.L.Y., LLC, subsequently assigns or transfer the [transferred [p]ayment(s) or any portion thereof, or by any other individual or entity.
15. The [structured [settlement [ojbli-gor and [a]nnuity [i]ssuer shall irrevocably change the beneficiary for the [transferred [p]ayment(s) to the [transferee.
Metropolitan and MetLife timely appealed the circuit court’s order to this court, asserting that the circuit court erred in approving the transfer.
Before we address Metropolitan and MetLife’s points on appeal, we must first address BJLY’s assertion that Metropolitan and MetLife do not have standing to appeal the March 9, 2016 order because they are not parties to the case. We find no merit in BJLY’s argument. Subsection 706(b) of the ASSPA provides that
the transferee of a structured settlement agreement shall file with the court ... and serve on all interested parties a notice of the proposed transfer and the application for its authorization, including ... notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee’s application.
Ark.Code Ann. § 23-81~706(b) (Repl. 2014). The ASSPA defines interested parties as the annuity insurer and the structured settlement obligor. Ark.Code Ann. § 23-81-702(6). The structured settlement agreement in this case provided that Liberty Mutual Insurance Group pay Met-Life a sum of money to fund periodic payments through the purchase of an annuity from Metropolitan. Since Metropolitan and MetLife are clearly interested parties under the |Bstatute, we hold that they have standing to appeal the order. We now address their arguments on appeal.
Metropolitan and MetLife first argue that the court erred in approving the transfer because it violates the ASSPA’s prohibition on dividing periodic payments between a payee of a structured settlement agreement and a transferee of periodic payments. Specifically, the ASSPA provides as follows:
No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order ... based on express findings by the court ... that:
(1) The transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents;
(2) The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received the advice or knowingly waived the advice in writing; and
(3) The transfer does not contravene any applicable statute or the order of any court or other government authority.
Ark.Code Ann. § 23-81-704. The ASSPA also states that “neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees.” Ark.Code Ann. § 23-81-705(3).
This court reviews issues of statutory interpretation de novo. Steele v. Lyon, 2015 Ark. App. 251, 460 S.W.3d 827. In reviewing issues of statutory interpretation, a court will- determine the meaning and effect of a statute first by construing the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the statute’s language is clear and unambiguous, there is no need to look further and apply the | firules of statutory construction. Id.
As both parties point out in their briefs, no Arkansas appellate court has applied subsection 705(3) of the ASSPA. However, we find that the statute’s language clearly and unambiguously prohibits the payment structure ordered in this case. The statute prohibits the division of payments between a payee and a transferee. Yet, the approved transfer here required Metropolitan and MetLife to divide the periodic payments between Lisa and BJLY. Accordingly, the court’s order violates subsection 705(3).
In its response, BJLY asserts that the court’s order does not require Metropolitan and MetLife to split the periodic payments because the order directs them to pay the entire sum to BJLY and instructs BJLY to distribute Lisa’s share. However, BJLY misconstrues the circuit court order. The order states that “the transfer of the annuity payment ... 120 monthly payments of $300 each, increasing at 3% annually, beginning on July 29, 2021 and ending on June 29, 2031 ... as mentioned in [pjetitioners [pjetition is hereby approved.” The order then directs Metropolitan and MetLife to deliver “the [transferred [p]ayment(s)” to BJLY and to “irrecoverably change the beneficiary for the [transferred [p]ayment(s)” to BJLY. The court-approved monthly transferred payments are $300, but the monthly periodic payments are $1,378. In other words, the order required Metropolitan and MetLife to divide the payments in violation of subsection 705(3). Because we conclude that the order violates subsection 705(3), we need not consider whether the structured settlement agreement contained a valid anti-assignment provision or whether the assignment was in Lisa’s best interest.
|7Reversed.
Gruber and Vaught, JJ., agree.
. The parties dispute whether this court should apply both the ASSPA and the Texas Structure Settlement Protection Act ("TSSPA”) to this case because the structured settlement agreement provides that the agreement "shall be construed and interpreted in accordance with the laws of the State of Texas.” However, because there is no conflict of law, this court need not decide whether both Acts apply. See In re Rains, 473 S.W.3d 461 (Tex.App.-Amarillo 2015) (reversing a lower court's approval of a transfer of periodic payments under a structured-settlement agreement because the transfer violated the TSSPA's prohibition on dividing payments and the transfer was not in the best interest of the payee); Bettis v. Bettis, 96 Ark.App. 101, 239 S.W.3d 5 (2006) (applying only Arkansas law when the laws of Arkansas and Georgia were substantially the same). | [
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RITA W. GRUBER, Judge
11 Michael Todd appeals the sentences that the Circuit Court of Hempstead County imposed on him after it revoked his suspended imposition of. sentence (SIS) in two criminal cases. He contends, as he did at the revocation hearing, that it was error for the circuit court (1) to run the sentences consecutively rather than concurrently and (2) to sentence him without evidence of the date on which the SIS began in the underlying cases. He also argues on appeal that his original sentences were facially illegal pursuant to Ark.Code Ann. § 5-4-301(a)(2)(A) (Supp. 2009). See State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008) (noting that a void or illegal sentence is an issue of subject-matter jurisdiction, which cannot be waived by the parties and may be addressed for the first time on appeal). We affirm.
In case number CR-2009-74, Todd was charged as a habitual offender with ten Class C felonies — nine counts of fraudulent use of a credit card or debit card, and one count of theft by receiving. In case number CR-2009-75, he was charged as a habitual offender with Class 12P felony breaking or entering and Class C felony theft of property, and was also charged with two Class A misdemeanors — theft of property and fraudulent use of a credit card or debit card. He pleaded no contest to all charges and on May 28, 2009, was sentenced on each felony to concurrent terms of eight years’ imprisonment in the Arkansas Department of Correction (ADC) to be followed by seven years’ SIS. Conditions of the SIS required that Todd obey all federal and state laws.
On June 4, 2014, the State filed its petition to revoke his SIS in both cases, alleging that Todd had violated conditions by committing the crime of forgery in Howard County — for which he had been convicted — and the crimes of commercial burglary, breaking or entering, and theft of property in Hempstead County. At a June 9, 2014 revocation hearing, the circuit court found the allegations in the revocation petition to be true. Todd objected to sentencing without proof of his release from the ADC. The circuit court took the matter under advisement. On June 11, 2014, the State filed a motion to reopen the record for supplemental proof. In a previous opinion, we recounted the proceedings that took place when the revocation hearing resumed:
On June 16, 2014, the circuit court granted the State’s motion to reopen record for supplemental proof. The State entered a certified copy of the PEN pack, and the circuit court found that appellant had five years remaining on his suspended sentence.
Based upon that finding, appellant was sentenced, in CR-2009-74, to ten sixty-month sentences to run consecutive to each other and consecutive with the Howard County case and the other Hempstead County cases. In CR-2009-75, the circuit court sentenced appellant to two sixty-month sentences to run consecutive to each other and consecutive with CR-2009-74 and consecutive with the Howard County case and the other Hempstead County cases for a total, in both cases, of sixty years in the ADC. Sentencing orders were filed on June 26, 2014, and amended sentencing orders were filed on July 8, 2014.
Is Todd v. State, 2015 Ark.App. 356, at 2-3, 465 S.W.3d 435, 436.
Todd now argues in his first point that at the time of his revocation sentencing, the circuit court lacked jurisdiction “to change, modify, alter, or amend the judgment from concurrent to consecutive.” See Burks v. State, 2009 Ark. 598, at 4 n. 2, 359 S.W.3d 402, 406 (noting that a circuit court may not modify a valid sentence once execution of the sentence has begun); Lambert v. State, 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985) (stating the general rule that if the original sentence is illegal, even though partially executed, the sentencing court may correct it). He also argues that his original sentencing of seven years’ SIS was illegal on its face under Ark.Code Ann. § 5-4-301(a)(2)(A), which prohibits suspending imposition of sentence if the defendant has previously been convicted of two or more felonies.
Because sentencing is entirely a matter of statute in Arkansas, no sentence is to be imposed other than as statutorily prescribed. Ark.Code Ann. § 5-4-104 (Supp. 2009); e.g., Esry v. State, 2014 Ark. 539, at 4, 453 S.W.3d 144, 146 (per curiam). A sentence within the limits set by statute is a legal sentence, and a void or illegal sentence is one exceeding the statutory parameters for the convicted defendant’s offense. Id.
Todd argues that in May 2009 the trial court did not have authority to sentence him to a suspended sentence because, as a habitual offender, he was not entitled to a suspended 1 ¿sentence under Ark.Code Ann. § 5-4-301(a)(2)(A). He concludes, therefore, that the original sentence imposed in May 2009 was illegal. We disagree.
A previous case, Chadwell v. State, 80 ArkApp. 133, 91 S.W.3d 530 (2002), presented a similar argument that the original sentence was illegal because, based on the defendant’s habitual-offender status, the circuit court lacked authority to suspend a portion of it. The appellant in that case cited language of Ark.Code Ann. § 5-4-104(e)(4) (1987), which later was repealed but used language identical to that now found in Ark.Code Ann. § 5-4-301(a)(2)(A), which governs the present case. Both statutes provide that a circuit court shall not suspend imposition of sentence if it is determined, pursuant to other statutory provisions, that the defendant has previously been convicted of two or more felonies. The Chadwell court found that the circuit court, being authorized to sentence the appellant as a habitual offender to a range of ten to twenty years and having imposed a sentence of ten years’ imprisonment, did not lack authority to impose an additional ten-year suspended sentence. Chadwell, 80 Ark.App. 133, 136, 91 S.W.3d 530, 532. We interpreted the statute to prohibit suspension of a term of imprisonment, but we found that— as long as only a portion was suspended beyond the statutory minimum term — the trial court was free to suspend an additional term in the habitual range. See Chadwell, 80 Ark.App. at 136-37, 91 S.W.3d 530, 532; cf. State v. O’Quinn, 2013 Ark. 219, 427 S.W.3d 668 (finding a suspension below the habitual minimum term of impris-oiiment to be illegal).
“The legislature is presumed to be familiar with the appellate courts’ interpretation of its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an ^amendment, the interpretation of the statute remains the law.” Pedraza v. State, 2015 Ark. App. 205, at 5, 465 S.W.3d 426. Because the General Assembly has not rejected Chad-well v. State, supra, our interpretation of former section 5-4-104(e)(4) refutes Todd’s argument that section 5-4-301(a)(2)(A) prohibits the suspension of any portion of a habitual sentence.
Todd next contends that the State failed to present evidence of the date his suspension began for the purpose of determining the remaining time of suspension. On June 16, 2014, when the revocation hearing reconvened, the State presented its supplemental evidence of Todd’s release date from the ADC. The State introduced a “pen pack” showing that Todd was released on June 28, 2012, from the ADC to the supervision of the Texarkana P & P— which governs probation and parole; the State contended that after June- 28, 2012, he had jiist over five years left on each suspended sentence. Todd argues that because the Texarkana unit is part of the ADC, the evidence was insufficient to show that he was “set at liberty” and that his suspensions thus began to run on June 28, 2012. We find that the State sufficiently proved, through documentation, the date that Todd was “set at liberty” — albeit under supervision.
Todd was charged and sentenced as a habitual offender for eleven Class C felonies and one Class D felony, with respective maximum sentences of thirty years and fifteen ■ years. See Ark.Code Ann. § 5 — 4—501 (b)(2) (setting forth extended terms of imprisonment for defendants meeting the criteria of section 5-4-501(b)(1)). The circuit court, which had authority in the original sentencing to impose up to eleven consecutive thirty-year terms. of imprisonment and one fifteen-year term of imprisonment, imposed only an aggregate term of eight years’ | fimprisonment to be followed by seven years’ SIS.
Pursuant to the plain language of Ark. Code Ann. § 5-4-301(d)(2) and Ark.Code Ann. § 5-4-309(f)(l)(A), the circuit court was authorized at revocation to modify the original order and impose any sentence that originally could have been given. Todd was originally placed on suspension on multiple counts, served concurrently by statute. The circuit court revoked the suspended sentences on all remaining counts, ordering sentences after revocation within the parameters authorized by statute for each of the felony convictions. See Ark. Code Ann. § 5-4-401. Furthermore, the trial court was permitted, based on Ark. Code Ann. § 5-4-403(a), to order that multiple sentences of imprisonment for multiple offenses be run consecutively, including those where suspension had been revoked. See also Cheater v. State, 2010 Ark. App. 652, at 3, 2010 WL .3902649 (rejecting Cheater’s argument that the circuit court sentenced him to ilegal consecutive sentences upon revocation because it had originally ordered concurrent sentences).
For the foregoing reasons, we affirm.
Abramson and Vaught, JJ., agree.
. We dismissed Todd’s first appeal on finding that his notice of appeal was flagrantly deficient and ineffective and that we lacked jurisdiction because of the ineffective notice of appeal. Id. at 6, 465 S.W.3d 435, 436-38. The present appeal follows our supreme court’s granting Todd's motion for belated appeal. Todd v. State, 2015 Ark. 452, at 2, 2015 WL 7777279 (per curiam). | [
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PER CURIAM
| TPending before this court is an appeal from the denial of appellant Calvin J. Sto-ver’s pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rulés of Criminal Procedure (2015). For the reasons set forth below, the trial court’s order denying postconviction relief is affirmed.
Stover was convicted by a jury of possession of methamphetamine, being a felon in possession of a firearm, and simultaneous ’ possession of drugs'and firearms. He was sentenced to an aggregate' term of 480 months’ imprisonment. His convictions and sentences were affirmed on appeal by the Arkansas Court Of Appeals: Stover v. State, 2014 Ark. App. 393, 437 S.W.3d 695. The mandate was issued on July 8, 2014.
Stover- filed a timely verified postconviction petition on September 8, 2014, which 12alleged that the trial court was biased and that his two attorneys, Sarah Ashley and Scott McElveen, failed to effectively represent him. The trial court did' not conduct a hearing but issued a written order, cited to the record, applied the standard, enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and. concluded that Stover’s . ineffective-assistance-of-counsel claims were not supported by the trial record and denied relief.
This court will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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 Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland, 466 U.S. 668, 104 S.Ct. 2052, the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32.
Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Adkins v. State, 2015 Ark. 336, at 5-6, 469 S.W.3d 790, 795. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within .the wide range of reasonable professional' assistance. Id. The petitioner claiming ineffective assistance of counsel 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. Id.
The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, a 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. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable probability is a probability sufficient .to undermine confidence in the outcome of the trial. 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. Airsman v. State, 2015 Ark. 409, at 3, 473 S.W.3d 549, 553-54 (per curiam).
For his first point on appeal, Sto-ver argues that, because he ■filed a grievance against the trial judge with the Judicial Discipline and Disability Commission, a conflict of interest arose that caused the trial judge to be biased. Stover argues that the trial judge should have recused after the grievance had been filed. Allegations of judicial bias must be raised at trial and addressed on direct appeal and are not cognizable in postconviction proceedings. Green v. State, 2013 Ark. 455, at 8, 2013 WL 5968933 (per curiam). Further, Sto-ver’s allegations are conclusory in that he fails to identify particular behavior on the judge’s part that prejudiced the outcome of the trial. Conclusory allegations of trial error are not sufficient to warrant granting relief under Rule 37.1. Id.
14Stover argues in his second point on appeal that both counsel had a conflict of interest that allegedly arose when Stover 'filed complaints with the Public Defender Commission against one of his attorneys, Sarah Ashley, which Sto-ver contends created an irreconcilable conflict that impaired the loyalty and the effective representation of both attorneys. Stover’s bare contention that counsel were conflicted is insufficient to establish the existence of an actual conflict of interest, which generally requires a showing that counsel was actively representing the conflicting interests of third parties. Townsend v. State, 350 Ark. 129, 134, 85 S.W.3d 526, 528 (2002).
In the absence of an actual conflict, a petitioner alleging that counsel’s performance was deficient due to another form of conflict must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Townsend, 350 Ark. at 134, 85 S.W.3d at 528 (citing Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)); Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir.2006) (explaining that the rule presuming prejudice has not been extended beyond cases in which an attorney has represented more than one defendant). Therefore, as with any ineffective-assistance-of-counsel claim, Stover had the burden of providing factual support to demonstrate that the alleged conflict of interest adversely affected counsel’s performance. Bullock v. State, 353 Ark. 577, 582-83, 111 S.W.3d 380, 384 (2003).
In his Rule 37.1 petition, Stover failed to identify the specific acts or omissions of counsel that resulted from the alleged conflict. The trial court properly found that Stover had not set forth sufficient facts showing that counsel were disloyal and relied on the record when it concluded that counsel took advantage of every opportunity to aid Stover. | ^Although Stover on appeal adds additional factual allegations in support of his conflict claim and seems to raise a new claim that the trial court erred when it refused to appoint other counsel, we are precluded from addressing these new fact allegations and claims that are raised for the first time on appeal. Thornton v. State, 2014 Ark. 113, at 2, 2014 WL 1096263 (per curiam).
In his third point on appeal, Sto-ver contends that counsel were ineffective when they failed to move for a directed verdict on the basis that there was insufficient proof that he possessed a usable amount of a controlled substance. This specific challenge to the sufficiency of the evidence was raised on direct appeal and was found to have been waived. Stover, 2014 Ark. App. 393, at 1, 437 S.W.3d at 697.
Stover alleges that he was prejudiced by the failure to preserve the issue because the evidence was insufficient to show he possessed a usable amount of methamphetamine because expert testimony established that the sample found in his possession contained 0.1736 grams of both methamphetamine and dimethyl sulfone, but that the specific amounts of each substance contained in the sample could not be ascertained. However, the amount of a diluent, such as dimethyl sulfone, discovered in a controlled substance does not negate the criminality of its possession. See Ark.Code Ann. § 5-64-419(a)(b)(l)(A) (Supp. 2011) (stating in pertinent part that it is unlawful to possess methamphetamine with an aggregate weight including an adulterant or diluent in an amount that is less than two grams); see also Jones v. State, 357 Ark. 545, 553, 182 S.W.3d 485, 489 (2004) (holding that a measureable amount of methamphetamine includes the amount of the pure drug plus all adulterants). Furthermore, we have concluded that possession of 100 milligrams constituted a usable amount of methamphetamine. Jones, 357 Ark. at 553, 182 S.W.3d at 489. Here, the | r,expert’s testimony established that Stover possessed more than 100 milligrams of methamphetamine. Sto-ver fails to demonstrate that had counsel preserved this issue for appellate review, the appellate court would have found that the evidence was insufficient to support the conviction. See Strain v. State, 2012 Ark. 42, at 3-4, 394 S.W.3d 294, 298 (per curiam).
For his fourth point on appeal, Stover contends that counsel failed to objeet to the State’s amendment of the criminal charges to include one count of simultaneous possession of a weapon and a controlled substance. Stover asserts that he was prejudiced because he was not made aware of the amendment until the day before his trial. The State, however, is entitled to amend an information at any time before the case is submitted to the jury as long as the amendment does not change the nature or the degree of the offense charged or create an unfair surprise. Dodge v. State, 2014 Ark. 116, at 6, 2014 WL 1096135 (per curiam). An amendment may be properly quashed if it misleads or impedes a criminal defendant in making a defense. Hoover v. State, 353 Ark. 424, 428, 108 S.W.3d 618, 620 (2003). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the crime. Stewart v. State, 338 Ark. 608, 612, 999 S.W.2d 684, 687 (1999). The record shows that the prosecutor originally charged Stover with possession of a controlled substance and possession of a weapon. Stover does not explain how the amended charge of simultaneous possession of drugs and weapons changed the nature of the charges such that it impeded the development of his defense or prejudiced the outcome of his trial. Hoover, 353 Ark. at 428, 108 S.W.3d at 620.
17Stover’s contention that he was unfairly surprised by the amended information is not only conclusory but it is also contradicted by the record. The prosecutor amended the information to add the additional charge on March 8, 2013, thirty-two days before Stover’s trial on April 9, 2013. See DeAsis v. State, 360 Ark. 286, 294-95, 200 S.W.3d 911, 916, (2005) (concluding that defendant was not prejudiced by an amendment that added additional charges thirty-four days before trial). Moreover, the record shows that when Stover was originally arrested, he was charged with simultaneous possession of drugs and a weapon as reflected in documents prepared and filed by Benton County police officers. The trial court did not clearly err when it concluded that this allegation of attorney error was without merit because the amended information added one charge for which Stover had been originally arrested and the amendment occurred 30 days before trial.
For his fifth point on appeal, Sto-ver contends that counsel ineffectively failed to challenge the underlying probable cause for an arrest warrant issued by Washington County, which was executed by Benton County police officers who searched Stover incident to that arrest and seized a weapon and a cigarette package containing methamphetamine. Stover contends that counsel should have moved to suppress the drugs and weapon because the charges that were filed in Washington County were subsequently dismissed which Stover argues invalidated the arrest warrant, and which, in turn, invalidated the search performed incident to that arrest. Stover’s arguments concerning the validity of the arrest warrant are entirely conclusory. Stover fails to raise sufficient allegations establishing that the arrest warrant was invalid other than to allege that the Washington County charges were dismissed. We have held that jurisdiction to try the accused does not depend upon the |svalidity of the arrest. See State v. Richardson, 373 Ark. 1, 3, 280 S.W.3d 20, 22, (2008) (citing Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974)). The allegation .that the Washington County charges were dismissed does not, without more, establish that the warrant served by the Benton County officers lacked probable cause or was otherwise invalid. Stover’s conclusory allegations do not establish a meritorious ground to sup press the evidence discovered in the search incident to the arrest.
In his sixth point on appeal, Sto-ver argues that counsel were ineffective for failing to obtain a ruling ori a 'motion for mistrial that was made after it was discovered that Stover had been'wearing a prison-identification bracelet on his left arm while in the presence of the jury panel. On direct appeal, the court of appeals refused to reach this issue because counsel did not obtain a ruling on the mistrial motion from the trial court. Stover, 2014 Ark. App. 393, at 3-4, 437 S.W.3d at 698. The record demonstrates that Stover’s counsel moved for a mistrial because of the prison-identification bracelet, and also because potential jurors had seen Sto-ver being escorted by a deputy sheriff. Without ruling on the motion, the trial court ordered that the bracelet be removed and excused two potential jurors who had seen Stover ■ with the sheriffs deputy.
The record shows that Stover was wearing the bracelet for a short time before it was discovered and removed and that it was inconspicuous such that neither Sto-ver’s counsel nor the trial court noticed it until the prosecutor brought it to light. Stover insists that counsel was ineffective in failing to preserve the bracelet issue for appeal and contends that, due to counsel’s errors,- he was “forced to stand trial in prison garb.” Briefly appearing before potential jurors wearing a prison-identification bracelet does not constitute being | fforced to stand trial in prison garb. See Vance v. State, 2011 Ark. 243, at 33, 383 S.W.3d 325, 346 (a mistrial was not warranted when- the sighting of the defendant in shackles and prison garb outside the courtroom was brief and inadvertent, by less than all of the jurors). Additionally, Stover does not establish that any member of the jury panel noticed the bracelet or its significance in the short time that Stover was wearing it in their presence. Even if a few jurors spotted the bracelet, the sighting was brief and inadvertent. Vance, 2011 Ark. 243, at 33, 383 S.W.3d at 346. Stover does not demonstrate that counsel failed to preserve a meritorious issue on appeal. State v. Rainer, 2014 Ark. 306, at 13, 440 S.W.3d 315, 323. (per curiam);
In his seventh point on appeal, Stover alleges that counsel were ineffective for failing to investigate and interview witnesses. In his argument on appeal, Stover names Kaneida Rambo, Sheryl Crown, Gary Madrid, Renee Cook, and Candace Williams as witnesses whom counsel failed to call in his defense. This court has held that it is ineumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Weatherford v. State, 363 Ark. 579, 586, 215 S.W.3d 642, 649 (2005).
■ Although Stover did not provide the names of these witnesses, nor did he provide a summary of their anticipated testimony in his Rule 37.1 petition, the trial court referred to a transcript of a pretrial hearing conducted on the day of trial and considered complaints raised on the record by Stover that counsel had failed to subpoena Kaneida Rambo, Renee Cook, and Gary Madrid. In assessing the attorney’s decision to not call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment |inthat experienced advocates could endlessly debate. Sparks v. State, 2009 Ark. 260, at 2-3, 2009 WL 1317245 (per curiam). Based on its review of the record, the trial court concluded that Stover’s counsel “exhibited reasonable professional judgment in their stated reasons for not calling these witnesses.” This conclusion is not clearly erroneous. With respect to Stover’s allegations that counsel ineffectively failed to call Candice Williams and Sheryl Crown for the purpose of presenting character evidence, we are precluded from addressing this argument which was not raised below or considered by the trial court. Thornton, 2014 Ark. 113, at 2, 2014 WL 1096263.
In his final point on appeal, Stover argues that the trial court erred when it denied his claim for postconviction relief without a hearing. We have explained that Rule 37.3 clearly grants the trial court discretion to decide whether the files and records are sufficient to address the petition without a hearing, and the trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Greene v. State, 366 Ark. 59, 65, 146 S.W.3d 871, 877 (2004). Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentia-ry hearing or postconviction relief. Id. Because it is clear that the allegations set forth in Stover’s Rule 37.1 petition were conclusory and unsupported by the record, the trial court did not err when it denied relief without conducting an evidentiary hearing.
Affirmed.
. The trial court noted that the postconviction petition was filed 61 days after the mandate issued but found the delay was excused, as the 60th day to timely file his Rule 37.1 petition fell on a Sunday. | [
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PHILLIP T. WHITEAKER, Judge
_JjThis appeal arises from the dismissal without prejudice of a Federal Employers’ Liability Act (FELA) complaint filed by appellant, Brian Skender, against the Union Pacific Railroad Company (UPRR). UPRR filed a timely notice of appeal of the trial court’s determination that the complaint should be dismissed -without prejudice (i.e., direct appeal). Skender then filed a timely notice of cross-appeal from the trial court’s determination that the summons was fatally deficient. We reverse and remand on direct appeal. We affirm on cross-appeal.
I. Validity of Summons
Because a finding of error'on the cross-appeal would cause' the direct appeal to be moot, we address it first. In order to address the merits of the cross-appeal, a brief understanding of the facts and procedural history of the case is essential.
On July 11, 2012, Skender was injured while working at a UPRR repair track in Pine Bluff, Arkansas. He timely filed and served his FELÁ claim against UPRR ón October 25, 2013. UPRR filed an answer denying Skender’s claims and pleading, among other 12(b) defenses, insufficiency of process and insufficiency of service of process.
On July 25, 2014, shortly after the statute of limitations had run on Skender’s claim, UPRR filed a motion to dismiss with prejudice, alleging that it had not been served with a summons. Skender responded, asserting • that, summons had been served with the complaint and attaching the Sheriffs proof of service indicating that a copy of the summons and complaint had been served on The Corporation Company, UPRR’s registered agent for service of process. UPRR then renewed its motion, contending that the summons purportedly served with the complaint was fatally defective in that it was directed to its registered agent rather than to UPRR. Skender responded denying that the summons was fatally deficient. After reviewing the pleadings and hearing arguments of counsel, the trial court granted UPRR’s motion to dismiss finding the summons was fatally deficient. In his cross-appeal, Skender challenges the trial court’s determination that the summons issued in this case was fatally deficient. We now turn our attention to the summóns issued by the clerk in this ease.'
Our attention to the summons will focus on two sections: the caption of the summons and the “directed to” provision of the summons. The caption correctly designated UPRR as |3the defendant in the action, but then listed its registered agent as a “Claimant.” The “directed to” provision of the summons ‘ then provided, in part,
“THE STATE OF ARKANSAS TO DEFENDANT: Registered Agent, The Corporation Company, 124 West Capitol Avenue,- -Suite 1900, -'Little Rock, Ar, 72201 A lawsuit has been filed against you. The relief demanded is stated in the attached complaint. Within 30 days after service of summons on you (not counting the day you received it) ... you must file with the clerk of this court a written answer to the complaint or a motion under Rule 12 of the Arkansas Rules of Civil Procedure.
(Emphasis added.)
Clearly the “directed to” provision of the summons incorrectly listed the The Corporation Company, rather than UPRR, as the defendant against whom the lawsuit was pending, the defendant who had been served, and the defendant responsible for filing an answer. The trial court found that because the summons failed to include the name “Union Pacific Railroad Company” and its address following the phrase “THE STATE OF ARKANSAS DIRECTED TO DEFENDANT,” it failed to strictly comply with Rule 4 ■ of the Arkansas Rules of Civil Procedure.
• Our law is well settled. A circuit court acquires no jurisdiction over a defendant unless the plaintiff strictly complies with the service-of-process rules. Simmons Ltd. P’ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257; Cagle v. Terwilliger, 2015 Ark. App. 191, 458 S.W.3d 770. Strict compliance specifically applies to the technical requirements of a summons, and a defendant’s personal knowledge of the litigation will not cure a fatal defect in the summons. See Earls v. Harvest Credit Mgmt. VI-B, LLC, 2015 Ark. 175, 60 S.W.3d 795, and Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court reviews a circuit court’s factual conclusions regarding service of process under a clearly-erroneous standard, and when dismissal is a matter of law, the court conducts a de novo review of the record. McMahan v. Ark. Dep’t of Human Servs., 2014 Ark. App. 590, 446 S.W.3d 640.
Our supreme court has held that “statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact.” Steward v. Kuettel, 2014 Ark. 499, at 8, 450 S.W.3d 672, 676; Carruth v. Design Interiors, Inc., 324 Ark. 373, 374-75, 921 S.W.2d 944, 945 (1996); Hall v. State Farm Bank, supra. Skender acknowledges this rule, but cites to our supreme court’s decision in Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004), to support his contention that a literal application of the rule in this case would lead to an absurd consequence because UPRR never argued that they were not on notice of the suit or that they were denied an opportunity to be heard. In fact, UPRR timely answered the complaint and participated'in the litigation.
Skender’s argument must fail for two reasons. First, our supreme court has clearly held that a defendant’s personal knowledge of the litigation does not cure a fatal defect in the summons. Earls v. Harvest Credit Mgmt. VI-B, LLC, supra. Second, the Nucor case cited by Skender is distinguishable. In Nucor, the defendant was correctly named in the summons, but. its codefendants were not. Thus, Nu-cor was clearly apprised on the face of the summons of the pendency of the suit against it. Here, UPRR was not correctly named in the summons. While it was listed as the sole defendant in the caption, the summons was not directed to it | fin the body of the document as required under our rules. To make matters even more confusing, its registered agent — which was inexplicably listed as a claimant in the caption — was listed as the defendant to whom the summons was directed in the body of the summons. Thus, unlike Nucor who was correctly listed in both places in the summons, UPRR was incorrectly identified. Thus, the trial court’s determination that the summons was fatally deficient was not in error.
II. Dismissal With or Without Prejudice
We next turn to the issue on direct appeal — whether the dismissal should have been issued with or without prejudice. Below, UPRR argued that the court should dismiss with prejudice due to the defective summons. While disagreeing that the summons was defective, Skender argued, in the alternative, that equitable tolling would allow a dismissal without prejudice. The court found that the refiling of Skender’s claim was not barred by the statute of limitations, citing an Arkansas savings statute case, and ordered the dismissal to be without prejudice. UPRR contends that the trial court erred in applying the Arkansas savings statute in a FELA action and that, because the statute of limitations had run on Skender’s claim, the trial court erred in dismissing the complaint without prejudice. UPRR also contends on appeal that Skender is not entitled to an equitable tolling of the limitations period under federal law.
We agree with UPRR’s contention that the trial court erred in applying the Arkansas savings statute. Relying on Clouse v. Tu, supra, an Arkansas savings statute case, the trial court Rruled. that because service was perfected within 120 days of the timely commencement of the FELA action, Skender was not barred by the statute of limitations from refiling his complaint. However, the United States Supreme Court has clearly stated that the savings statutes of the individual states do not apply in FELA actions. See Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). Thus, the trial court’s reliance on the Arkansas savings statute was erroneous as a matter of law.
This does not automatically conclude Skender’s case, however. Federal law also allows the statute of limitations to be tolled under certain circumstances, and Skender argued to the trial court that equitable tolling should apply in this case. Because the trial court found that the savings statute applied, it did not make any findings with respect to Skender’s equitable tolling argument. As a result, we remand this issue to the trial court to make the requisite findings on whether equitable tolling is available to suspend the statute and whether dismissal with or without prejudice is appropriate.
Reversed and remanded on direct appeal; affirmed .on cross-appeal.
Gladwin, C.J., and Harrison, J., agree.
. 45 U.S.C. § 51 et seq.
. A FELA claim has a three-year statute of limitations.
. Arkansas Rule of Civil Procedure 4(b) (2015) governs the form and content of a summons, including that it shall "be directed to the defendant.” Hall v. State Farm Bank, 2015 Ark. App. 287, at 2, 462 S.W.3d 701, 703.
. Clouse v. Tu, 101 Ark. App. 260, 274 S.W.3d 344 (2008). | [
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CLIFF HOOFMAN, Judge
| jAppellant Richard Dean Bailey appeals after he was convicted by a Garland County jury of murder in the second degree and was sentenced to 360 months’ imprisonment. Appellant’s sole contention on appeal is that the trial court erred in denying his motion for a directed verdict. He specifically argues that the State’s evidence was insufficient to rebut his claim of justification under Arkansas Code Annotated section 5-2-607 (Supp. 2015). We affirm.
Appellant was charged by felony information with murder in the first degree. Early on July 10, 2013, Anthony Ward’s body was discovered in the Hollywood Park area of Hot Springs, Arkansas. Near his body, investigators found a blue bag containing Ward’s identification; several spots of blood that led to an overlook where there was even more blood; flip flops; a shell casing; a pair of blue gloves; and a number of cigarette butts. Investigators also discovered a folding knife in the front pocket of Ward’s pants, which had |ahis blood on the handle and on the blade. Additionally, some pedestrians walking along the creek found a “Rambo style” knife later on that same day. After receiving information that clothing had been dumped in a dumpster at the Relax Inn in Hot Springs, investigators retrieved a pink sleeveless shirt with a rip on the right side, a white T-shirt; a pair of men’s hiking boots, a pair of white socks, and a pair of khaki pants. The clothing was all wet, and a blue glove like the gloves found at the crime scene was discovered inside the back pocket of the khaki pants.
After appellant and his girlfriend, Debbie Huggins, had become suspects, Detective Scott Lampinen interviewed them. A video of Detective Lampinen’s interview with appellant was played for the jury. During the interview, appellant indicated that he and Huggins had been walking through the park after he had received treatment, at the nearby hospital for an injured finger, Huggins had stopped to use the restroom and then wanted to soak her feet in the creek. While they were at the creek, appellant explained that Ward approached Huggins, ripped her shirt, and got on top of her. Appellant indicated that he was only five or six feet away from Huggins, and he admitted that he grabbed Ward’s arm, flipped him over, and stabbed him. Appellant also told Detective Lampi-nen during the interview that Ward had tried to hit him after pulling him off of Huggins and that Ward said that he had a gun. Afterwards, appellant admitted that he threw his knife, fled the scene, and threw the clothing in the dumpster.
laHuggins testified at trial on appellant’s behalf; however, her version of events varied slightly. She testified that she and appellant had entered the park after they left the hospital, where they took several blue gloves. She further testified that she did not soak her feet that night but that she had walked over to the dock after she had used the restroom. Appellant was not with her at that time, and Ward grabbed her wrist, pulled her down, and ripped her shirt. After she screamed for help, appellant pulled Ward off of her and told her to run. She testified that she had observed Ward falling down and appellant throwing his knife toward the creek.' She indicated that she had lost one of her flip flops when they hid underneath a bridge before returning to the hotel. She admitted that appellant threw her shirt and his clothing away and that she had bought Clorox later that evening from an EZ Mart to change her hair color. Surveillance video from the Relax Inn and the EZ Mart was admitted at trial. Huggins further admitted that she had told Detective Lampinen that she was “out of harm’s way” after appellant pulled Ward off of her. Additionally, she testified that she had told Detective Lampinen that appellant had become angry and stabbed Ward when Ward was not doing anything at that point. Despite the fact that Huggins and appellant discussed calling law enforcement after the incident, she testified that appellant was too afraid to do so because he was on probation.
The State introduced Johnathan Um-phlett’s testimony at trial. Umphlett testified that he was housed in the same unit at the same time that appellant was housed pending trial. He testified that appellant had initially told him that he had stabbed Ward in self-defense; however, appellant later changed his story. He explained that appellant subsequently admitted |4that he had stabbed Ward after appellant was attempting to rob Ward, and Ward woke up and protested. Umphlett additionally explained at trial that he only contacted the prosecution with this information after he had already received his sentence for sexual assault and that he was not receiving anything in exchange for his testimony.
Appellant properly moved for a directed verdict after the State rested and properly renewed his motion for a directed verdict at the close of all the evidence. In relevant part, he argued that the State failed to negate his defense that his actions were justified. However, the trial court denied the motion, and the jury found appellant guilty of the lesser-included offense of murder in the second degree. The jury further recommended a sentence of thirty years’ imprisonment, and appellant was sentenced in accordance with the jury’s recommendation. This timely appeal followed.
Appellant’s sole contention is that the trial court erred in denying his motion for a directed verdict, arguing that the State’s evidence was insufficient to rebut his claim of justification under Arkansas Code Annotated section 5-2-607. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On an appeal from a denial of a motion for a directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the ver- diet. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one |5way or the other beyond suspicion or conjecture. Id.
A person commits murder in the second degree if he or she “[k]nowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life” or “[w]ith the purpose of causing serious physical injury to another person ... causes the death of any person.” Ark. Code Ann. § 5-10-103(a)(l)-(2) (Repl. 2013). Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State' beyond a reasonable doubt. Green v. State, 2011 Ark. App. 700, 2011 WL 5662803. Whether one is justified is largely a matter of the defendant’s intent and is'generally a factual question fór' the jury. Lewis v. State, 2014 Ark. App. 730, 451 S.W.3d 591; A defendant’s intent is ordinarily not subject to proof by direct evidence but must usually be established by circumstantial evidence. Id. Critical to this inquiry is the reasonableness of the accused’s apprehension that he was in danger of death or of suffering great bodily harm. Id Also critical is whether the accused used all reasonable means within his power and consistent with his personal safety to avoid the use of deadly force. Id; see also Ark.Code Ann. § 5-2-607. Furthermore, the jury may consider evidence of flight as probative evidence of guilt. Lewis, supra.
It is well settled that the credibility of witnesses is an issue for the jury and not this court. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565. Furthermore, the jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting'testimony and ineonsis-tent evidence. Id. In doing so, the jury may choose to believe the State’s account of the facts rather than the defendant’s. Id. Additionally, the jury is not | (¡required to set aside common sense and need not view each fact in isolation, but it may instead consider the evidence as a whole. Lewis, supra.
Here, appellant admitted in the interview that was played for the jury that he had stabbed the victim but claimed that it was justified. However, the jury also heard evidence that after appellant had stabbed the victim, he immediately threw his knife toward the creek, fled the scene, failed to alert law enforcement, and threw away his clothes in a dumpster located at his hotel. Additionally,'.'Umphlett testified that appellant had admitted in a conversation'with him that it'was not self-defense. Instead, Umphlett explained that appellant had told him that he had killed Ward after Ward woke up and protested the appellant’s attempted theft of Ward’s belongings. Although appellant asserts on appeal that Umphlett’s testimony was “unbelievable,” credibility determinations and the resolution of conflicting evidencé are within the province of the jury. See Airs-man, supra. Therefore, because there was sufficient evidence from which the jury could find that appellant was not justified in his use of deadly force in this instance, we affirm.
Affirmed.
Kinard and Glover, JJ., agree.
. At trial, Huggins testified that her last name at the time of the incident was Mullins, as she was married. However, she was divorced at the time of trial and preferred to be addressed by her maiden name, Huggins. | [
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Robert H. Dudley, Justice.
Appellant Ella Mae Thomas filed suit in chancery court alleging that she had been unduly influenced and coerced into relinquishing her dower interest in a 220 acre tract of land previously owned by her late husband and conveyed to their children, the appellees. The warranty deed to this tract was executed on May 21, 1976, and reflects the relinquishment of appellant’s dower interest. Appellant alleged in her complaint that at the time of the execution of the deed she was on medication, suffering from mental and physical problems. Her husband died on October 31, 1979, and appellant’s complaint was filed on December 3, 1980. Appellees moved for dismissal of appellant’s complaint alleging that the appellant had no cause of action because the statute granting her an inchoate right of dower had been declared unconstitutional in Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981) handed down on February 23, 1981. Appellant responded to this motion by stating that Act 714 of 1981 which was passed in March of 1981 to cure the defects in the dower statutes should be applied in this case. The trial court sustained the motion to dismiss finding that the appellant had no vested right of dower, basing the decision on Stokes and Hess. We affirm.
Appellant admits that Act 714 of 1981, which was passed to cure the defects in our dower laws and related statutes, is not applied retroactively. Huffman v. Dawkins & Holbrooks, 273 Ark. 520, 622 S.W. 2d 159 (1981); Bennett v. Bennett, 275 Ark. 262, 628 S.W. 2d 565 (1982). However, the appellant contends that the trial court erroneously gave Stokes and Hess a retroactive application. The trial court was correct because the appellees raised the issue of the invalidity of our dower statute before any dower rights were vested in appellant, just as was done in Stokes and Hess. The appellant did not have a vested right in lands formerly owned by her husband on the date of his death. "Thus the present appellant ... is in precisely the same position as were Mrs. Stokes and Mrs. Wims in the earlier cases. Those decisions are not being applied retroactively when we treat her exactly as they were treated.” Hall v. Hall, Ex’r, 274 Ark. 266, 623 S.W. 2d 833 (1981).
Affirmed. | [
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George Rose Smith, Justice.
This action against Eckles was brought by Perry-Austen, an Iowa company, to recover the purchase price of bowling equipment shipped to Eckles on an open account. The complaint, without itemizing the account, sought judgment for $6,127.20 “and other relief as [plaintiff] may be deemed entitled.” At the trial the plaintiff’s testimony disclosed that the $6,127.20 claim, calculated as of the date the suit was filed, consisted of a $5,520.24 principal account and $606.96 in interest at 1% a month. This appeal, from a verdict and judgment for $7,065.84, comes to us because there is an assertion of usury. Rule 29 (1) (1). Four points for reversal are argued.
The testimony of the two main witnesses was in absolute conflict. The witness Sherwood, an officer of Perry-Austen, testified that the delinquent account arose from seven shipments to Eckles, evidenced by seven itemized invoices that were introduced. Each invoice recited that an interest charge accumulated at 1% a month on past-due balances. Sherwood said that he had telephoned Eckles 8 or 10 times about the account. Eckles never disputed the account, and promised repeatedly to pay it, and once agreed to sign a note for the total amount, with interest, but did not do so. Eckles testified that he never admitted the indebtedness. He said he owed only two of the invoices, the other shipments having been ordered by Eckles to be shipped to other consignees and to be billed to them. The verdict shows that the jury accepted Sherwood’s testimony.
First, the issue of usury was not preserved for review. It was raised only once in the trial court, by a motion for a directed verdict at the close of the plaintiff’s case. The court denied the motion, finding (on sufficient evidence) that the suit was based upon an Iowa contract. The motion was not renewed at the close of all the evidence and was therefore waived. Sanson v. Pullum, 273 Ark. 325, 619 S.W. 2d 641 (1981).
Second, the defense objected to the introduction of the invoices because Sherwood admitted that before sending them to Perry-Austen’s attorney he had written notations on them, such as: “This order phoned to us by Art Kirk, Eckles’ office accountant.” The jury heard Sherwood’s explanation of the notations, and both Eckles and Kirk in effect admitted on the witness stand that the information was true. No possibility of prejudice is shown.
Third, during the closing arguments plaintiff’s counsel displayed to the jury a sheet of paper containing, in large letters and figures, this summation of the account:
Goods $5,520.24
Interest
1% per mon. 55.20
X # months X _28 $1,545.60
Total $7,065.84
It happened that the j urors carried the piece of paper into the jury room along with the exhibits. When that fact was discovered after the j ury had returned its verdict for $7,065.84, defense counsel moved for a mistrial. We find no error in the denial of the motion. Sherwood had testified to the accuracy of the total figure, which had again been brought to the jury’s attention in argument. The trial judge did not abuse his discretion in refusing to order a new trial merely because the jury had taken into the jury room a calculation already known to them.
Fourth, it is argued that the court should not have entered judgment for 12% interest, because the complaint contained no such prayer. This point is well taken. The complaint simply sought judgment for $6,127.20 and other relief. It was impossible for the defendant to learn from the pleadings that 12% interest under Iowa law was being asked. Rule 44.1, A. R. Civ. P., provides that a party who intends to raise an issue concerning the law of another jurisdiction shall give notice in his pleading or other reasonable written notice. Had the rule been complied with by the plaintiff, defense counsel would have been alerted to the need for determining the permissible interest rate in Iowa. It is impossible for us to take notice of it, for it seems to be a variable rate that fluctuates with a rate published by the federal reserve system and is determined every month by the superintendent of banking in Iowa. Iowa Code Annotated, Vol. 32, § 535.2 (Supp. 1981-1982).
In the complaint there is a prayer for general relief. This is a sufficient basis for an award of 6% prejudgment interest. Under our law it is the statement of facts in the complaint that constitutes the cause of action; the court may in the absence of surprise grant whatever relief the facts warrant. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633 (1950). An open account for goods sold bears interest after maturity. Frazer v. Pettit-Galloway Co., 172 Ark. 209, 287 S.W. 1010 (1926). The basic principle is that interest is ordinarily allowable for the wrongful detention of money. City of Fort Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W. 2d 474 (1952). Under our Constitution the legal interest rate for obligations not in writing is 6%. Ark. Const., Art. 19, § 16; Wilson v. Lester Hurst Nursery, 269 Ark. 19, 598 S.W. 2d 407 (1980). The judgment will therefore be modified by reducing the interest before judgment from $1,545.60 to half that amount, $772.80, being 6% instead of 12% interest.
Modified and affirmed. | [
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Frank Holt, Justice.
This appeal results from a jury’s finding that the appellants were liable for injuries received by appellees as a result of a traffic accident. Appellee Kinerd Gates was awarded $25,000 damages and his wife, appellee Christine Gates, was awarded $5,000 for loss of consortium. Appellants first contend that the court erred in excluding the proffered testimony of the investigating officer regarding similar automobile accidents in the near vicinity within the general time frame.
According to Gates, on January 19,1979, he was driving his pickup truck when a vehicle ahead of him slowed and stopped to avoid a dog crossing the highway. Gates, driving about 50 m.p.h., stopped about 15' behind the vehicle either to avoid striking the dog, the forward vehicle, or both. Although the weather was foggy, it was no real problem. It was not such that “you couldn’t see your hand in front of you.... ” “You could see pretty good out there.” According to appellant Williams, an employee of appellant TG&Y Stores, he had followed Gates about a half mile and was approximately seven car lengths behind him traveling about 35 m.p.h. Upon seeing Gates’ brake lights about 140' away, he applied his brakes but his vehicle “hydroplaned,” causing him to strike the rear of the Gates vehicle. He described the weather conditions as being very foggy, misting rain, and “visibility was very low.” The weather conditions were such that it “would have been impossible to have avoided running into the rear of his vehicle . . . Well, the weather conditions played a major part, because it was very foggy. And visibility was very low.”
Appellants proffered the investigating officer’s testimony that he had received numerous reports of similar accidents in the vicinity which had occurred in the area about the same time as the accident here. When he arrived at the scene of this accident some ten minutes afterwards, a tractor trailer rig had hit appellant Williams’ vehicle, which was near the highway shoulder. A Trailways bus had gone into the median near the scene. The officer subsequently investigated two other accidents within the hour and two or three miles of this one. The officer testified he was not present when any of the accidents occurred and did not know what the weather conditions were from noon until 1 p.m. when he came to this accident scene. Appellants argue that this proffered testimony of these other accidents was “relevant evidence,” Rules 401 and 402, Uniform Rules of Evidence, that the weather conditions contributed to the accident. Further, its probative value was for the jury. The court refused the proffer.
Appellants cite Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885 (1915); and Ark. Power & Light Co. v. Johnson, 260 Ark. 237,538 S.W. 2d 541 (1976), as authority for the admissibility of the proffered testimony. We first observe that the facts in these cases are quite dissimilar to those in the instant case. In Coppedge, the condition presented as being similar was that the gas pressure was improperly maintained in a pipe that supplied the Coppedge house as well as other customers in the area. The Coppedge stoves and those of other customers were essentially the same. In Johnson it appears that the parties there agreed that the physical conditions existing at the time of the subsequent accident were identical. Here the facts are obviously dissimilar. Furthermore, in Coppedge and Johnson the court allowed proof of similarity of conditions and we upheld the rulings on the basis that it was not an abuse of discretion. Here, the court refused the proffer. In Johnson, we said:
Admission of evidence of subsequent incidents, like that of prior incidents poses the question of relevancy, even though the admission of the former must be approached with greater caution than the latter. Questions of relevancy address themselves to the sound judicial discretion of the trial judge. The exercise of that discretion should not be reversed on appeal except for manifest abuse.
Here, suffice it to say that appellants have not demonstrated there was a manifest abuse of discretion by the trial court.
Appellants next contend that the trial court erred in instructing the jury (AMI 2201 and 2204) that future medical expenses are a proper element of damages. They argue that these expenses are based entirely on speculation and conjecture. We cannot agree. The appellee Gates, 62 years of age, testified that he cannot turn his head very well; his nerves are “shot” since the accident, and he cannot sleep at night; he is often stiff all over; he cannot help with chores around the house; he has had to discontinue his outdoor recreational activities, such as fishing and hunting, as a result of the accident. His injury has required hospitaliza tion, medication and rehabilitative treatments. He is currently on medication and treatments which provide only temporary relief. As of the date of trial appellee’s medical expenses were $5,599.32.
Gates produced medical testimony that as a result of the accident he suffered severely from a cervical sprain syndrome or a neck injury. He was hospitalized on four occasions: January 20-February 2, 1979; March 10-20, 1979; May 14-16, 1979; and September 16-22, 1979. He has been continuously on medication and some therapy. There is damage to the soft tissue in the neck which will cause intermittent difficulty for the rest of his life and will require future medication. An examination one month prior to trial, which was two years and three months after the accident, indicated the residual presence of chronic pain syndrome; and an arthritic condition, which became symptomatic after the accident, is irreversible and would progressively worsen. X-rays indicate some disc protrusion exists. Gates would suffer “from now on a chronic pain in the cervical area.” Gates was regarded as being in good health before the accident.
We have held that it is not speculation and conjecture to calculate future medical expenses that have accrued as of the date of trial. Belford v. Humphrey, 244 Ark. 211, 424 S.W. 2d 526 (1968); Haney v. Noble, 250 Ark. 557, 466 S.W. 2d 467 (1971); and Ark. Power & Light Co. v. Heyligers, 188 Ark. 815, 67 S.W. 2d 1021 (1934). Here, in addition to the history of the medical expenses which had accrued and the seriousness of the injury, there is also a degree of medical certainty as to the need for future medication. We hold there is sufficient evidence from which the jury could fairly infer that future expenses for medicine and medical attention will be necessary.
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Richard B. Adkisson, Chief Justice.
Appellant, Betty Vermillion, was injured on April 9, 1979, in a multi-vehicle collision in Faulkner County. She and her husband brought suit, alleging negligence by the drivers of the other two automobiles involved in the collision. At trial, appellants introduced into evidence a packet of medical bills, one of which had “Prudential” typed in the space designated for “hospitalization insurance company.” During closing arguments the attorney for two of the appellees, Peterson Concrete Company and its driver, Michael M. Pinson, stated that Betty Vermillion’s medical bills had apparently already been paid under Prudential policy no. [ XXX-XX-XXXX ], but that she had not informed the jury of that fact and would have them pay her again for those same expenses. Appellants moved for a mistrial or, in the alternative, an admonition directing the jury to disregard this statement. The trial court denied both motions. On appeal we reverse.
We have frequently held that the unnecessary injection of the existence of insurance into a case is reversible error, unless it is relevant to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W. 2d 46 (1973). Here, the fact that Prudential may have paid appellant’s medical bills is not relevant to any issue being litigated.
Also, we cannot say that appellant put insurance into issue by the mere fact that “Prudential” was typed on one of the bills. This bill was only one of several in a packet of bills introduced by appellant, and appellant did nothing to call the jury’s attention to the space or the word “Prudential.” Even if the jury did see “Prudential” while examining the bills, there was nothing on the bill or in the testimony to indicate that Prudential had paid it.
Appellees argue that the error was harmless since the jury found that the accident was not caused by the negligence of the appellees. This argument overlooks the fact that the jury could have concluded there was no need to find appellees negligent and assess damages when appellant’s bills had already been paid. We stated in Amos v. Stroud, 252 Ark. 1100, 482 S.W. 2d 592 (1972) that recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.
When, as here, there has been an intentional and deliberate reference to insurance when it was not an issue in the case and when the opposing party had not opened the door for its admission, the declaration of a mistrial is the proper remedy. Pickard v. Stewart, supra.
Even though the attorney for appellee, Glover, was blameless, a reversal as to Glover is unavoidable because the positions of the appellants are inseparable under the circumstances of this case. And, the prejudicial remark did accrue to Glover’s benefit.
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Frank Holt, Justice.
Upon a jury trial, appellant, as a habitual offender, received a life sentence for aggravated robbery, 15 years for theft of property, and a life sentence for kidnapping. Appellant first argues that the court erred in granting the state’s motion to amend the aggravated robbery information during the trial and, therefore, he was entitled to a directed verdict in the absence of the amended information. We recite the pertinent facts.
The uncontroverted testimony of the victim was that she had visited her husband in a local hospital, and as she approached her car on the hospital parking lot in the late evening hours, appellant grabbed her, told her he had a gun, placed it against her head, and forced her into her car. She described the weapon as “an army gun. It had a long barrel ...” While he was driving, he threatened to “blow her head off” several times, demanded her money, and threw her purse in the back seat. The purse contained her husband’s wallet and a small sum of her money. At one point he placed his hand on her crotch or vaginal area, saying “If you don’t let me lick you, I will kill you.” He struck her several times. In defending herself, a button was torn from the shirt worn by the appellant. About thirty minutes after her abduction, she jumped from the car as it was moving slowly. She was picked up by a passing motorist, the police were alerted, and she was taken to a hospital. Shortly thereafter, the police apprehended appellant, who was driving the victim’s car. A BB pistol was found in the front seat. Three credit cards belonging to the victim’s husband were found in the appellant’s pocket. Other identification cards belonging to the victim’s husband were found in appellant’s right shoe. A torn shirt with a button missing was found in the back seat — the button being found in the front seat.
The information originally charged the appellant with aggravated robbery by violating Ark. Stat. Ann. § 41-2102 (Supp. 1981), alleging that the appellant unlawfully and feloniously employed physical force upon the victim “with the purpose of committing a theft, and did have in his possession a pistol, a deadly weapon . ” After the state rested its case, it was allowed to amend the information to include the additional words of the statute that the appellant “represents by word or conduct that he is so armed.”
The appellant argues that the state, by specifically alleging in the original information that a deadly weapon was used, is bound by that allegation and, therefore, he is entitled to a directed verdict since the weapon, a BB pistol, is not a deadly weapon. Neither could the asserted deficiency be corrected by permitting the state to amend the information to conform to the proof that appellant represented he was armed with a deadly weapon. In Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979), we said:
It is well settled that the information may be amended during the trial as long as the nature or degree of the crime charged is not changed.
This is authorized by Ark. Stat. Ann. § 43-1024 (Repl. 1977). The state is entitled, under this statute, to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense. Prokos v. State, 266 Ark. 50, 282 S.W.2d 36 (1939); Dolphus v. State, 256 Ark. 248, 506 S.W.2d 538 (1974); and Whitley v. State, 140 Ark. 425, 215 S.W. 703 (1919).
Here, the appellant argues, however, that the nature of the crime alleged was changed by the amendment. We have said that an amendment which describes a deadly weapon as being a pistol instead of a knife does not change the nature of a crime nor its degree. Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971). Further, the original information here sufficiently complied with Ark. Stat. Ann. § 43-1006 (Repl.1977), which requires that the language of an indictment or information must be certain as to the title of the prosecution, the name of the court in which the indictment or information is presented, and the names of the parties, subject to a bill of particulars. See Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981). Here, the appellant did notask for a bill of particulars, plead surprise nor seek a continuance when the court allowed the amendment of the information. The appellant has demonstrated no prejudice. We hold that the trial court did not err in refusing to grant appellant’s motion for a directed verdict on the original allegation of aggravated robbery and then permitting the state to amend the information to conform to the proof.
The appellant next contends the court erred in permitting the state to amend the information with respect to the kidnapping charge. The information, in the words of the statute, charged the appellant with violating Ark. Stat. Ann. § 41-1702 (1) (d) (Repl. 1977) by unlawfully restraining the victim “so as to interfere substantially with her liberty for the purpose of engaging in sexual intercourse or deviate sexual activity . . . . ” The information was amended at the close of the state’s case, over appellant’s objection, to include in the words of the statute, the additional allegation that the appellant proposed to engage in “sexual contact” with the victim. Appellant reiterates his previous argument that this amendment changed the nature of the alleged crime and is, therefore, prohibited by § 43-1024. That statute, however, as indicated, permits the amendment of an information when the nature or degree of an alleged crime is not changed by the amendment. Here, the amendment changed only the manner in which the alleged offense was committed and did not change the nature of the offense charged and was, therefore, proper. Prokos v. State, supra; Workman v. State, supra; Ridgeway v. State, supra; and § 43-1006. Here, appellant did not seek a bill of particulars, plead surprise nor seek a continuance. Appellant has failed to demonstrate that he has suffered any prejudice by the court allowing the amendment.
Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no errors prejudicial to the appellant.
Affirmed. | [
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Frank Holt, Justice.
A jury awarded appellee a judgment in the amount of $5,457.65 for medical bills incurred by appellant’s wife while a patient at the appellee Medical Center. For reversal he contends the trial court erred in denying his motion which asserted that counsel for the appellee could not properly represent the appellee, an agency of the state, since appellee’s counsel was not the attorney general, an assistant attorney general, nor special counsel appointed by the attorney general. Ark. Stat. Ann. §§ 12-1701 and 12-719 (Repl. 1979). Neither is there any statute authorizing this state agency to hire its own attorney.
In Wade v. Moody, Judge, 255 Ark. 266, 500 S.W. 2d 593 (1973), the appellant asserted that the court erred in refusing his motion to dismiss the case because it was not brought in the name of the state as required by statute. There we said:
The motion was oral and out of time. It was made on the morning of the trial and, of course, after the case had been set for trial. See Rule 2, Uniform Rules for Circuit and Chancery Court, March 1, 1969. Furthermore, the court’s refusal to consider the oral and untimely motion suggests no prejudice to appellant; in fact the motion went to a matter of form rather than substance.
To the same effect are: Warren v. State, 261 Ark. 173, 547 S.W. 2d 392 (1977); and City of Benton v. Connerly, 261 Ark. 262, 547 S.W. 2d 432 (1977). Here, on the trial date, immediately before trial, appellant made a motion to dismiss which was untimely and not in compliance with the requirements of Rule 2 of Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Repl. 1979). Furthermore, the case had been pending for more than two years during which time appellant had filed various pleadings. Appellant has demonstrated no prejudice.
Another deficiency is that the ruling of the court denying the motion is not abstracted, which is a violation of Rule 9 (d) of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979). In fact, it is not in the transcript; we have only a stipulation by the parties that the court overruled the motion. Therefore, we have no way of knowing for what reason the court denied it. Suffice it to say that when the trial court reaches the right result, as here, we do not reverse, even though its refusal to dismiss the motion might be based on an erroneous reason. Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 62 (1979).
Affirmed. | [
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Per Curiam.
Petitioner Curtis Urquhart was convicted by a jury of rape and sentenced to forty years imprisonment and a $4,000 fine. He was also convicted of burglary in the same proceeding and sentenced to fifteen years imprisonment. The terms were ordered served consecutively. We affirmed. Urquhart v. State, 273 Ark. 486, 621 S.W. 2d 218 (1981). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37.
Petitioner Urquhart was identified by a deaf woman as the man who broke into her apartment on the night of July 17, 1980, and raped her. She identified Urquhart by a large scar on his shoulder. She also testified that she was familiar with Urquhart because he was a frequent visitor to the neighborhood. Urquhart’s defense was that the woman had invited him to her apartment and consented to sexual relations.
Petitioner claims ineffective assistance of counsel because counsel (1) consulted with petitioner only three times before trial; (2) did not prepare for trial; (3) was incompetent to deal with a deaf witness; and (4) did not consult with petitioner before allowing nine women to be seated on the jury. Petitioner also states that he and counsel could not agree on anything related to his defense. The allegations are conclusory. Allegations which are not supported by facts and a showing of some prejudice to the petitioner do not justify postconviction relief. Blackmon v. State, 274 Ark. 202, 623 S.W. 2d 184 (1981). The mere fact that petitioner did not agree with his attorney on the composition of the jury or on the many tactical decisions which must be made by counsel before and during trial does not demonstrate that counsel was ineffective. See Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). To warrant postconviction relief, a petitioner must show that he was prejudiced by counsel’s conduct. Furthermore, he must show by clear and convincing evidence that the prejudice resulting from the representation of counsel was such that he did not receive a fair trial. Blackmon, supra. Petitioner has fallen far short of demonstrating that he did not receive a fair trial.
Since the offense charged was rape, petitioner contends that the trial court and his attorney should not have allowed nine women to serve on the jury. He asserts that all women feel the same about rape and are not willing to make a fair judgment'in a trial involving the crime. The impartiality of a prospective juror is a question of fact for the trial court to determine in its sound discretion. Ark. Stat. Ann. § 39-105 (c) and (e) (Supp. 1981). No abuse of that discretion can be discerned from this petition. Also, the issue of the composition of the jury is one which could have been raised in the trial court; as such, it is not a proper ground for a petitioner under Rule 37. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). Petitioner argues, however, that counsel accepted the jury, leaving him powerless to challenge the panel as he wished to do. This argument is basically one of ineffective assistance of counsel which must fail because petitioner has not shown bias on the part of any particular juror. Jurors are assumed to be unbiaséd; the burden of demonstrating actual bias on .the part of any member of the panel is on the petitioner. See Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975). A general indictment of all women as being unsuitable jurors for a rape trial is not only highly questionable but also insufficient legally.
Petitioner next alleges that the trial court should have permitted him to dismiss his court-appointed attorney. Petitioner erroneously states that he had the legal right to dismiss as many as three attorneys before the court could decline to appoint another. The right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W. 2d 328 (1979). The trial court was obligated to appoint competent counsel, not to comply with petitioner’s wishes.
Petitioner’s final allegation is unclear. A friend of the victim testified at trial that the victim told her in sign language about the rape. Petitioner may be saying that this friend’s testimony was inadmissible. If so, the question was raised on appeal and decided adversely to petitioner. It may not be raised again in a Rule 37 petition. Houser v. State, 508 F.2d 509 (8th Cir. 1974). On the other hand, petitioner may be contending that the interpreter at trial was a friend of the victim. If so, the record does not support his argument. There is nothing to indicate any relationship between the victim and the trial interpreter. Furthermore, no objection to the interpreter was made at trial. This Court will not consider in a petition for postconviction relief matters which could, and should, have been raised at trial. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).
Petition denied. | [
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Darrell Hickman, Justice.
This appeal arises from Lloyd Foster’s convictions of aggravated robbery and first and second degree battery. He was sentenced by a jury to consecutive terms of fifty years, thirty-five years, and twenty years.
The State’s evidence was that on March 2, 1981, Lloyd Foster, Ray Smith and Stanley Young set out from Little Rock to rob a bank in Emerson, Arkansas, in Columbia County, which was Stanley Young’s hometown. Once in Emerson they stopped at Wise’s general merchandise store. Smith and Young went in, looked at gloves and bought cigarettes. The appellant joined them and while there stole a pair of the gloves. The men then drove to the bank. There were too many potential witnesses in the area, so they circled the block several times. By the time they stopped, the bank had closed. Unable to get the doors open, their robbery attempt was thwarted. The men left, bought a six pack of beer and drank it while deciding their next move. One of them suggested robbing Wise’s. They planned that Ray Smith and the appellant would go in while Stanley Young would wait in the car with the motor running.
After arriving at Wise’s, Ray Smith, wearing a ski mask, approached Mrs. Wise outside of the store. He ordered her inside and then struck her on the head with his pistol, knocking her unconscious for a moment. When Mrs. Wise came to she saw that her husband was being robbed by the appellant. Ray Smith then sprayed her face with mace. The appellant struck Mr. Wise in the head, got a small amount of money, and then shot Mr. Wise three times. The men ran outside to the waiting car and fled.
Stanley Young was arrested two days later. He testified for the State at the appellant’s trial.
The appellant raises four issues on appeal. First he argues that the trial court erred in denying his motion for a change of venue. His motion included affidavits by four Columbia County residents who stated that the appellant would be unable to get a fair trial there. The State countered with two affidavits that averred that the appellant could receive a fair trial. The trial court held a venue hearing at which the appellant called eight witnesses who testified that they felt that the citizens of the county would be unable to render an impartial verdict. Three of the witnesses admitted, however, that all or most of the people they talked to about the robbery were from Magnolia. Three witnesses stated that they could not speak for anyone else, that it was merely their own opinion that the defendants would be unable to receive a fair trial in Columbia County. One of the witnesses admitted that he believed that the State would still have to prove its case beyond a reasonable doubt before obtaining a conviction. The State called no witnesses at the hearing.
A movant must demonstrate that there is countywide prejudice against him before his motion for a change of venue will be granted. Cheney v. State, 205 Ark. 1049, 172 S.W. 2d 427 (1943). At the hearing the trial judge made a concerted effort to determine whether the witnesses had personal knowledge of countywide sentiment towards the appellant. From the witnesses’ answers he concluded that the appellant had not met his burden of proving that he was entitled to a change of venue. The denial of a motion for a change of venue is within the discretion of the trial judge and his order is conclusive on appeal in the absence of an abuse of that discretion. DuBois v. State, 258 Ark. 459, 527 S.W. 2d 595 (1975). There was ample testimony by the appellant’s witnesses from which the trial judge could conclude that the witnesses had no personal knowledge of prejudice that existed throughout Columbia County.
In his second point for reversal the appellant argues that there was insufficient evidence that the appellant committed second degree battery on Mrs. Wise and that the charge should not have been submitted to the jury. Mrs. Wise testified that Ray Smith, the appellant’s accomplice, hit her in the head with his pistol. The blow cut her ear, knocked her down, and caused her to lose consciousness. As she came to, Smith sprayed her face with mace.
The applicable statute only requires that a person cause another physical injury by means of a deadly weapon. Ark. Stat. Ann. § 41-1602 (1) (b) (Repl. 1977). Mrs. Wise testified that she suffered physical injury when she was hit with a pistol, which is a deadly weapon. There was no error in submitting that charge to the jury.
Appellant argues in his third point that he was prejudiced when the judge spoke with Stanley Young during a recess in the trial in the presence of the jury. He contends that the judge’s action lent a special credibility to Young’s testimony for the State. The appellant does not provide us with any facts as to the reason for the conversation, what was said, whether it was within the hearing of the jury, the length of the conversation, or who initiated it. Neither does the appellant demonstrate how he was prejudiced. In the absence of any such facts we cannot say the appellant was prejudiced when the court denied his motion for a mistrial after the incident occurred.
In his fourth point for reversal, the appellant argues that first and second degree battery are lesser included offenses of aggravated robbery and, therefore, to convict him of all three violates the constitutional prohibition against double jeopardy. We will not consider the argument as it relates to the second degree battery because he did not raise it to the trial court. Instead, the only objection made was:
The defendant Lloyd Foster moves the Court that the charges of aggravated robbery and the charges of first degree battery with the appendage of the extra penalty for firearms constitute a double jeopardy, and one or the other should not be submitted.
Nor will we consider the argument made on appeal that the extension of appellant’s sentences for first and second degree battery for use of a firearm pursuant to Ark. Stat. Ann. § 41-1004 subjects him to double jeopardy because it was not raised below. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).
Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977), provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); . . .
(2) ... An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; . . .
At issue is whether first degree battery is established by proof of the same or less than all of the elemens required to prove aggravated robbery. In this case, we must determine whether it is possible to commit aggravated robbery without committing first degree battery. We find that it is possible. One can commit aggravated robbery merely by committing robbery and being armed with a deadly weapon or representing that he is so armed. Ark. Stat. Ann. § 41-2102 (Repl. 1977). To commit first degree battery, however, one must actually inflict serious injury. Ark. Stat. Ann. § 41-1601 (Repl. 1977). Therefore, the appellant’s conviction of both aggravated robbery and first degree battery did not violate the double jeopardy prohibition of Ark. Stat. Ann. § 41-105. See Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981).
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George Rose Smith, Justice.
This products liability case is within our jurisdiction under Rule 29 (1) (m). In 1975 a cardiac pacemaker, manufactured by the appellee Medtronic, was inserted in the body of the principal plaintiff, Ernest Eugene Spickes. In 1977 the device proved to be defective, causing Spickes’s heartbeat to acelérate. On October 5, 1977, the device was surgically removed and a substitute pacemaker, also made by Medtronic, was inserted in its place. There is no complaint about the performance of the replacement.
On October 28, 1980, more than three years after the surgery, Spickes and his wife brought this action for personal inj uries, loss of consortium, and punitive damages resulting from the defective pacemaker. The defendants, Medtronic and the hospital through which the device was sold, pleaded the three-year statute of limitations, Ark. Stat. Ann. § 34-2803 (Supp. 1981), and moved for summary judgment, with supporting affidavits. The trial judge granted the motion. The appellants’ principal assignment of error is that there is a genuine issue of fact as to whether Medtronic is estopped to plead limitations.
The plea of estoppel is based on correspondence and telephone conversations between Spickes’s original attorney, David H. Williams, and Medtronic’s attorney, Reed A. Duthler, who practiced in Minnesota. The motion for summary judgment was supported by Duthler’s affidavit, to which were attached copies of all the correspondence. The statute of limitations was never mentioned in the letters. Duthler stated in his affidavit that the statute was not referred to in the telephone conversations until after the time had run. He said he first mentioned the three-year statute in a conversation on October 24, but Williams insisted that the period was five years. In a few minutes Williams called back and admitted that the three-year period was correct, but said he did not think the plea would be successful. This suit was filed four days later.
In response to the plea of limitations the plaintiffs filed an amended complaint asserting that Duthler had stated that there was no question about liability, that the only issue was the amount of money that would adequately compensate Spickes for his damages, and that there was no necessity for Spickes to bring a lawsuit. Duthler’s affidavit also denied those assertions. He stated that the possibility of a settlement was discussed, but he did not admit or deny liability, did not promise a settlement, and did not request that a lawsuit be delayed or forgone. On the issue of estoppel no affidavits were filed on behalf of the plaintiffs in response to the motion for summary judgment.
On the basis of Duthler’s undisputed statements under oath, the trial court was right in entering the summary judgment. It is now argued that Duthler’s assertions were denied in the pleadings and were to some extent questioned by counsel at the hearing on the motion for summary judgment. We have repeatedly held, however, that when a party makes a prima facie showing in support of a motion for summary j udgmen t, the opposing party mus t discard the shield of formal allegations and meet proof with proof to show a genuine issue of fact. Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W. 2d 826 (1980), citing earlier cases. Here the movants’ proof is uncontradicted by affidavit.
A second point for reversal is that the trial court should have held that Spickes’s cause of action really arose on March 20, 1980, when he learned that back in 1977 Medtronic had sent a letter to physicians cautioning them about a different defect in the pacemaker, one that would cause the device to stop functioning (which did not happen in this instance). In response to the motion for summary judgment Spickes alleged, with a supporting affidavit, that he had suffered mental anguish in March 1980 upon discovering that he had not been notified about the earlier defect, causing him to fear that he might also not be notified if the replacement should prove defective.
This contention is meritless. Medtronic committed no tortious act in 1980; Spickes simply found out more about what had been done three years earlier. The statute of limitations begins to run when the negligent damage occurs, not from the time the full extent of the injury is ascertained. Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W. 2d 19(1933). Moreover, for the reasons given in Lisenby v. Farm Bureau Mut. Ins. Co., 245 Ark. 144, 431 S.W. 2d 484 (1968), a single cause of action cannot be split. Spickes knew in 1977 that the first pacemaker was faulty; he cannot manufacture a second cause of action on the basis of additional information he learned three years later.
Third, it is argued that the trial court was wrong in refusing to permit Spickes to testify, at the summary j udgment hearing, about the exact date on which he suffered mental anguish upon learning in 1980 that Medtronic had sent out the cautionary letter to physicians in 1977. It is argued that our holding in Sikes v. Segers, 263 Ark. 164, 563 S.W. 2d 441 (1978), to the effect that oral testimony is not permitted with respect to a motion for summary judgment, has been changed by ARCP, Rule 43 (c), which allows a court to hear oral testimony with respect to motions. Our ruling on the second point for reversal makes this question academic, for the exact date on which Spickes learned the full extent of his injury from the original wrong is immaterial.
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George Rose Smith, Justice.
The appellant, Sidney Thom, as the record owner of a dwelling house in Little Rock, brought this action in unlawful detainer to recover possession from his tenant, the appellee John M. Geyer. By counterclaim Geyer asserted the existence of an oral agreement by which he was entitled to purchase the property from Thom for the amount of money that Thom had spent in acquiring it. The case was transferred to equity. The chancellor, apparently without taking into consideration Geyer’s burden of proving the asserted oral contract by clear and convincing evidence, entered a decree permitting Geyer to purchase the property within 60 days for $12,107.10. We find it necessary to reverse the decree, because Geyer’s proof falls short of the standard that is required in a case of this kind.
For many years Geyer owned the property and occupied it as his home. In 1968, however, Geyer suffered business losses, became insolvent, and lost the property by foreclosure to his mortgagee, Southwest Factoring Corporation. Geyer continued to occupy the property, paying rent to Southwest.
Southwest decided to liquidate its business and offered to resell the property to Geyer for $9,000 if he could arrange the financing. The property had been appraised at $14,650 by a federal agency. Thom, who was a stranger to Geyer, was in the mortgage-banking business. Geyer saw one of Thom’s advertisements and applied to him for a loan. Thom investigated Geyer’s credit rating and found it to be so poor that no loan could be arranged.
From this point forward the testimony is in sharp dispute. Thom testified that he agreed to, and did, purchase the property from Southwest for $9,000, with Geyer to continue in possession as a tenant. Thom was to hold the property for six months, as a long-term capital investment, unless Geyer bought it during that period at a reasonable profit to Thom. At the expiration of the six months Thom would be free to put the house on the open market if Geyer had not repurchased it.
On the other hand, Geyer testified that Southwest made a special concession to him in agreeing to sell the property to Thom for only $9,000. According to Geyer, he and Thom orally agreed that Geyer would occupy the property as a tenant and be allowed a full year in which to repurchase the property from Thom for the amount of money that Thom had invested in the property, plus a profit to Thom of $1,000. Geyer had occupied the house for almost 15 months after Thom’s purchase when this action in unlawful detainer was filed.
The governing principles of law are clear. Under the statute of frauds an oral contract for the purchase of land is unenforceable unless some exception to the statute is shown. The only exceptions that might apply here are these:
First: In some instances the buyer’s possession of the property amounts to part performance of the contract. That rule is inapplicable here, because continued occupancy by one who was already in possession as a tenant does not amount to part performance. Rolfe v. Johnson, 217 Ark. 14, 228 S.W. 2d 482 (1950).
Second: A verbal agreement by which one person agrees to bid in another’s land at a judicial sale and resell it to him will be enforced if it would be a fraud to permit the purchaser to repudiate his promise. Coleman v. Wegman, 172 Ark. 132, 288 S.W. 376 (1926); Restatement, Restitution, § 181 (1937). Here, however, Thom did not buy the property until long after the judicial sale to Southwest. Moreover, the Coleman case holds that such an agreement must be proved by clear and convincing evidence. That standard of proof, as we shall see, was hot met here.
Third: Although a grantee’s oral promise to hold the land for a third person is unenforceable, a constructive trust will be imposed if it is shown by clear and convincing proof that the parties were in a confidential relation or that the grantee’s promise was intentionally fraudulent, having been made with no intention of performing it. Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958). Here no confidential relation existed.
Thus Geyer had the burden of proving by clear and convincing evidence that Thom made an intentionally and deliberately false promise to hold the land for Geyer. Upon the record before us that burden was not sustained. In fact, the proof may even preponderate slightly in Thom’s favor.
The principal witnesses were the two interested parties. Thom testified positively that Geyer’s right to repurchase was to continue for only six months. The capital gains aspect of the transaction provides a reasonable basis for that limitation. Furthermore, about nine months after the making of the oral agreement, Thom wrote a letter to Geyer in which Thom said that he was giving Geyer an extension of time within which to vacate the premises. Such an extension would have been unnecessary if the agreement had actually been for a year instead of for six months. It does not appear that Geyer disputed Thom’s statement, which accordingly provides corroboration of Thom’s version of the agreement.
Geyer’s testimony not only lacks similar corroboration but also falls short of establishing deliberate fraud on Thom’s part. To some extent Geyer’s testimony is contradicted by his own pleadings. That is, his counterclaim made no reference to the $1,000 profit that he testified about. Instead, that pleading asserted that Thom agreed that “the rent would be sufficient interest on his money” — an assertion not made by Geyer on the witness stand. Finally, Geyer’s testimony was at times so vague and hesitant, with statements that Thom’s profit was to be “$1,000 more or less,” that the chancellor intervened at one point and questioned Geyer closely about the precise terms of the agreement. There is actually hardly any indication of the type of fraud on Thom’s part that would have to be shown for Geyer to prevail. Certainly that kind of dishonesty was not proved by clear and convinding evidence.
Reversed.
Fogleman, J., concurs. Brown and Holt, JJ., not participating. | [
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Frank Holt, Justice.
Upon a plea of guilty, appellant received a sentence of 15 years for kidnapping and 15 years for robbery to be served concurrently. He was credited with the time he was in jail awaiting trial. Approximately a year later, he filed his present pro se motion to vacate his sentence pursuant to our Criminal Procedure Rule 1. He alleged, inter alia, that he was denied the effective assistance of counsel. The trial court, pursuant to subparagraph (C) of Rule 1, held in written findings of fact and conclusions of law that the records in the case conclusively show that the appellant was not entitled to. an evidentiary hearing. On appeal the appellant. contends for reversal that the trial court erred in refusing to grant him a hearing on his petition for postconviction relief. ' •
Essentially, áppellant’s pro ■ se • allegations were that his retained counsel repeatedly, told him that upon a trial he would receive 99 years for kidnapping and 21 years for robbery and would, receive additional time inasmuch as he was . charged ' as a habitual, criminal; that these sentences would run, consecutively and there wasn’t anything he (counsel) could do to prevent it; that appellant first refused to plead, guilty because he was innocent.of the alleged crimes; that his attorney “kept pressuring me to take his advice,” and after several conferences that “I was placed in such fear as to be unable to adequately confer and consult with him, due to the Undue pressure brought to bear upon - me by the court and by my attorney;” that his plea of guilty was coerced and improperly induced by his. defense attorney rather than being voluntary; that his defense counsel overreached and improperly pressured him to plead guilty; that his attorney refused to file motions and question illegal procedures, and evidence; and that the trial court failed to-protect the'defendant from the “above mentioned acts of defense counsel and trial prosecutor. . .”
When appellant appeared and pleaded guilty to the alleged offenses as a habitual criminal, a record of the proceedings, was' made. He was accompanied by his retained counsel, Before accepting the • appellant’s plea of guilty, the trial court thoroughly and extensively questioned the appellant with reference to whether his plea was voluntarily made. Actually, the court’s searching inquiries constituted 7 1/2 pages of the transcription of the plea proceedings. Summarizing- appellant’s anwers to the trial court’s inquiries, appellant stated that the trial court had previously read to him the charges pending against him; that he knew the nature of the charges, when they allegedly occurred and acknowledged to the court some of the-circumstances attending them; that he was previously convicted of a felony which in voked the provisions of the habitual criminal statute; that the effect would be to incréase the minimum punishment if found guilty either by the jury or the court; that he had employed his own counsel “sometime back;” that he had had ample time to consult with him; that he had read, understood and signed a “Plea Statement;” that before dong só he had had'time to discuss it with his counsel; that he had no questions he desired to ask the court; that there was no language in the plea statement that needed any explanation; that the court could rely upon what he was representing to the court; that he desired to plead guilty to the charges of robbery and kidnapping; that he had had time to discuss his plea that morning again with his counsel and that his plea was freely and .voluntarily made by him; that the court advised him the processing of his plea was being made a part of the record. Then he told the' court in answer to a specific inquiry that he had nothing to say before the court pronounced sentence.
The “Plea Statement” essentially reiterates the inquiries made by the trial court at the time of accepting the plea. It, also, apprised appellant that he had the right to a jury trial with the burden upon the state to prove his .guilt beyond a reasonable doubt and that by signing the plea statémerit the appellant acknowledges that he had discussed his case fully with his attorney and was “satisfied with his services.” The last paragraph of this document reads:
“I HAVE READ EVERYTHING ON THIS PAPER. I UNDERSTAND WHAT IS BEING TOLD ME, WHAT MY RIGHTS ARE, AND THE QUESTIONS THAT HAVE BEEN ASKED. MY ANSWER IS ‘YES’ TO ALL 5 QUESTIONS. I KNOW WHAT I AM DOING AND AM VOLUNTARILY PLEADING GUILTY BECAUSE I AM GUILTY AS CHARGED.”
It was, also, signed by his counsel to the effect that' he had reviewed the document with the appellant; that to the best of his judgment the appellant understands it and the appellant’s plea of guilty is consistent with the facts related to him by appellant as well as counsel’s own investigation of the case.
We think the language in Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878 (1972), is apt in the case at bar. There we' said:
“According to the record we have summarized, this appellant was given every opportunity to speak out, either in person or by employed counsel, and to raise any possible defense he had to the charges. If he had any such defenses it was incumbent that he raise them. In the face of the record made by the trial court and here summarized, appellant is not entitled at this late date to collaterally attack his sentence.”
See, also, Stallins v. State, 254 Ark. 137, 491 S.W. 2d 788 (1973). Our view is reinforced by the very recent case of Tollett, Warden v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973), where a collateral attack was made upon a guilty plea rendered upon the advice of counsel. The appropriate language is:
“*##But the Court in Brady and Parker, as well as in McMann, refused to address the merits of the claimed constitutional deprivations that occurred prior to the guilty plea. Instead, it concluded in each case that the issue was not the merits of these constitutional claims as such, but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel. ....
“We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases,’ McMann v. Richardson, supra, at 771. . . .
“Thus while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief ....
“He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.”
The presumption that counsel is competent is recognized in both our state and federal courts. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972), Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). Appellant relies upon our recent decision in Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95 (1972). We do not consider it applicable in the case at bar. There the proceeding attending the plea was not nearly as comprehensive as here.
In the case at bar we note that the appellant is 28 years of age, who is not unfamiliar with court proceedings inasmuch as he was charged and pleaded guilty as a habitual criminal. If the very thorough and painstaking proceedings conducted by the trial court attending appellant’s plea of guilty cannot pass constitutional muster, it is most difficult to see how any plea of guilty cannot be collaterally attacked in a postconviction proceeding requiring an evidentiary hearing upon the mere assertion that a plea of guilty was the result of “undue pressure” and ineffective assistance of counsel.
Inasmuch as we agree with the trial court that appellant’s plea of guilty was freely and voluntarily made and not a result of ineffective assistance of counsel, any other possible defenses asserted in appellant’s petition were waived. Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 959 (1971), Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543 (1972).
Affirmed.
Fogleman, J., not participating | [
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John A. Fogleman, Justice.
Appellant seeks reversal of a judgment denying his claim against the estate of his wife, stating that the only issue on appeal is the question of ownership of certain cattle, a one-half interest in which was claimed as an asset of his wife’s estate, and his right to remain on land on which he had been living for some 30, years. We find it necessary to affirm this case under Rule 9 of the rules of this , court. We have always taken action such as this with extreme reluctance and only recently amended this rule in an effort to alleviate the harshness of the rule as it theretofore existed. We amended Rule 9(e), effective January 1, 1973, to provide, among other things, the following:
(2) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the court may treat the question when the case is submitted on its merits. If die court finds the abstract to be flagrantly deficient, or to involve an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to reprint his briéf, at his own expense, to conform to Rule 9(d). Mere modifications of the original brief, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted abstract and brief by the appellant, the appellee will be afforded an opportunity to revise or supplement his brief, at the expense of the appellant or his counsel, as the court may direct.
Appellee, in compliance with Rule 10, advised that she would not file a brief, but pointed out that appellant’s brief was not in compliance with Rule 9. Appellee elected not to supplement the abstract for economic reasons. We find the deficiencies in this case to be of the type described in Rule 9(e)(2), recited above.
Material portions of the record were not abstracted. The five-line abstract of the two-page will does not mention a bequest to appellant. Appellant’s claim, upon which he seems to rely as a basis for the litigation, is abstracted only by stating that appellant claimed $3,499.73 expended for care of deceased during her last illness. This claim consists of 11 items, none of which is shown in the abstract, but the cattle are not mentioned in the claim. Appellee’s two-page “Objection to Claim and Petition for Discovery of Assets” is treated by the statement that the personal representative denies appellant’s claim. Appellee’s four-page separate “Petition for Discovery of Assets and for Orders Concerning Payment of Claims and for other Matters in Controversy,” though pertinent, is not even mentioned, although appellant does state in his abstract that he denied the matter set out in that petition and submitted that his claim should be granted under the circumstances surrounding his marriage and living with appellee’s decedent. The six-page opinion of the probate judge containing comprehensive findings of fact and conclusions of law pertinent to this appeal and reciting that several hearings had been had pertaining to the issues is treated by the simple statement that the court denied appellant’s claim for moneys expended and for the cattle which were on the farm at the time of the death of the decedent. We cannot tell, from the abstract, how the ownership of the cattle became an issue. Nowhere is it disclosed that appellant’s one-half interest in the cattle was acknowledged.
None of the exhibits such as tax receipts, assessments, checks and other matters relevant on the issue of ownership of cattle is abstracted. Testimony of both appellant and a son of appellee’s decedent relating to a separation of the parties and their division of cattle at that time is totally omitted.
The burden was on the appellant to demonstrate error in the probate judge’s findings and judgment. City of Little Rock v. Sunray DX Oil Company, 244 Ark. 528, 425 S.W. 2d 722; Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869. On the basis of the portions of the record abstracted, appellant has failed to carry his burden, and we would affirm on that basis, even if we disregarded the obvious failure to comply with Rule 9. | [
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J. Fred Jones, Justice.
Richard Monroe Sims was convicted at a jury trial for armed robbery and was sentenced to 25 years in the penitentiary. On appeal to this court he contends that the trial court erred in permitting the witness, Mrs. Clinney Vick, to identify him through photographs furnished by the prosecuting attorney’s office.
Mrs. Maria Smith testified that on January 24, 1972, she was employed at Majestic Cleaners at Third and High Streets in Little Rock; that she had just returned to her job from lunch when two young Negro men came into the place and requested change for a dollar. She said when she opened the cash register to obtain the change, she was ordered at pistol point to the back of the building. She said a third man then entered the place and while one of the men tied her feet the other two took the money from the cash register. She was unable to identify the appellant as one of the participants.
Mrs. Clinney Vick, testifying for the state, said that on January 24 about 11:30 in the morning, she was standing in the backdoor of the Capitol Hill Apartments where she lives when three young men came through the lobby and asked her if she had a cleaning and pressihg establishment in the building. She said she hardly had time to answer in the negative when one of them said: “I see it, Oh I see it, I see it,” and that all three then went down to the Majestic Cleaners, which was located across a parking area about 50 feet from the apartment building. At this point in the trial the jury was recessed and the court, the attorneys, the appellant and his mother, retired to chambers where Wilbur C. Bentley, assistant prosecuting attorney, was questioned concerning the photographs that are in issue in this case.
Mr. Bentley said that in the course of his investigation he learned that Mrs. Vick may have seen three black males just immediately before the alleged robbery, so he requested her to come to his office for an interview. He said he had never seen Mrs. Vick before but that he identified himself and told her he understood she had seen some men in the vicinity of the robbery. He said he showed her six photographs and asked her whether she had seen any of the men in the photographs shortly before the robbery. He said that Mrs. Vick identified appellant Sims and one of his accomplices (tried separately) as two of the three men she saw on that occasion.
The photographs were accepted in evidence for the record at the in-chambers hearing, and Mrs. Vick testified that the three men she observed were within two or three feet of her and that she thinks she would recognize them if she saw them again. Mrs. Vick then identified the appellant in chambers as one of the persons she saw on that occasion. She said the appellant was the one who asked her about the cleaning and pressing shop. Mrs. Vick was then asked if she had been shown a picture of the appellant previously and she said that she had. Under questioning by the court she then testified that Mr. Bentley showed her about three or four pictures and that the appellant’s picture was among the ones shown her. She then testified under questioning by the court, as follows:
“THE COURT: Could you recognize this defendant independently of having seen the pictures?
A. I think he is the one I saw the picture of.
THE COURT: All right. I know he’s the one you saw the picture of, but is he the person that you saw on the 24 th?
A. Yes, at my place.
THE COURT: At your place?
A. That’s right.
THE COURT: And you could recognize him, whether you had seen the picture or not?
A. I think so.”
Mrs. Vick was further questioned by the prosecuting attorney as to circumstances surrounding her identification of the appellant and she was asked and answered questions as follows:
“Q. Mrs. Vick, is there any doubt in your mind that the man sitting here, Monroe Sims, any doubt at all whether he is the same man that spoke to you in your lobby on January 24th?
A. No, sir; there’s no doubt in my mind that he’s the one.
Q. What you are saying to us based entirely on what you saw that day and not on having seen any photographs in the Prosecutor’s office. Is that accurate?
A. That’s right.”
Mrs. Vick was then again shown the photographs and again identified the picture of the appellant. She testified that she did not remember the exact day or hour she saw the appellant at the apartment building but that about 15 minutes after she saw the appellant and the other two men, someone told her that the cleaning establishment had been robbed. The record then discloses the conclusion of the in-chambers hearing as to the identification of photographs as follows:
“MR. TUCKER: If it please the Court, the State will move, Your Honor, that while this witness is on the stand that she be permitted to make in Court identification of the defendant, Monroe Sims.
MR. HOWARD: If the Court please, we object to all this identification procedure as being suggestive and unfair, inappropriate. The fact of identification, they could have had this woman view the lineup with this man in it which was available to them at all times. The identification of photographs certainly is not admissible. The photographs themselves are not admissible before the jury. We would ask the Court to not permit this witness to testify to anything other than this man’s identity if she can identify him from the witness stand.
THE COURT: All right. The Court finds that the photographic lineup presented to Mrs. Vick was not suggestive, that in any event she is able to identify the defendant as the person who was in the apartment house on January 24th, and her identification is not tainted in any way by the fact that she has viewed the photographic lineup; therefore, she’ll be permitted to testify regarding this defendant being present on January 24th. But, she will not be permitted to refer to the photographs that were shown her on direct examination. If you are questioned by the defense attorney regarding the photographs, then you may respond.”
In continuing her testimony before the jury at the conclusion of the in-chambers hearing, Mrs. Vick said that she got a good look at the individuals who inquired about the location of the cleaning establishment and especially the one who made the inquiry. She then identified the appellant as the one who made the inquiry. She said the cleaning establishment was not connected to the apartment house where she lives but was just across a small parking lot from it and that the buildings were approximately 50 feet apart.
Sims made an incriminating statement to the police officers admitting his participation in the robbery. The statement was written out by one of the police officers and signed by Sims who wrote in his own handwriting at the end of the statement: “This statement is true and correct to the best of my knowledge.” An in-chambers hearing was had in connection with the statement and the trial court found that it was voluntarily made and admissible in evidence.
The appellant argues that it was grossly unfair, and in violation of his constitutional rights, for Mrs. Vick to identify the appellant from pictures shown her by the prosecuting attorney when the appellant or his attorney was not present, and the trial court erred in permitting Mrs. Vick to identify the appellant as the one she saw near the scene of the crime immediately prior to its commission. He argues that such identification without the appellant’s attorney being present, was in violation of the United States Supreme Court decisions in United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
In the case at bar Mrs. Vick simply identified the appellant’s picture in the prosecuting attorney’s office, as among the six pictures shown to her. She then also identified him from the witness stand and the fact that she had first identified his picture was not mentioned in the presence of the jury. In Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885, the defendant was identified in a police lineup and later identified at the trial of the case, and in that case we found no merit in the appellant’s insistence that he was denied the assistance of counsel at the lineup where there was no proof that he asked for or was entitled to the aid of an attorney at those times and, on this point we distinguished United States v. Wade, supra, pointing out that in Wade the police knew that the accused already had engaged an attorney, yet they continued the lineup without notice to the attorney. In Montgomery we pointed out that we failed to read the Wade opinion as holding that every lineup identification in the absence of a lawyer is necessarily a denial of an accused’s right to be represented by counsel. In the case of James E. Crawford v. State of Arkansas, being handed down today, one of the points relied on was alleged error of the trial court in refusing to exclude testimony relating to pretrial lineup which was held without defense counsel being present. The appellant in that case, as in the case at bar, contended that showing of pictures to the prosecuting witness prior to the lineup was impermissibly suggestive. We held the point to be without merit because there is no contention that the photograph identification procedure gave rise to probable misidentification. In that case we cited McClain v. State, 247 Ark. 33, 444 S.W. 2d 99, in which the prosecuting witness identified the appellant from photographs submitted to her and later identified him at the trial. In McClain the photograph identification was brought out on cross-examination of the witness but in that case we found that the identification procedures were not impermissibly suggestive. In the case at bar the prosecuting witness simply identified the appellant’s picture as the man who made inquiry as to the location of the cleaning establishment immediately prior to the time it was robbed, and she still recognized, and positively identified, him in the courtroom at the trial.
In Gilbert v. Calif., supra, the attorney for the accused requested a hearing outside the presence of the jury to present evidence supporting his claim that the prosecuting witness’ in-court identification and other identifications to be elicited by the state from other eye witnesses would be “predicated at least in large part upon their identification or purported identification of Mr. Gilbert at the showup. . . ” The trial judge overruled the motion and in that case the court said: “The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.” The accused in Gilbert also had counsel and the lineup was conducted without notice to his counsel. There were many other details in the Gilbert case that clearly distinguish it from the case at bar.
The judgment is affirmed. | [
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Conley Byrd, Justice.
Appellant George W. Thompson and appellee Marie W. (Thompson) Garvin were divorced in October 1967. That decree provided:
“. . . that plaintiff be and she is hereby awarded exclusive use and possession of the residence of the parties. . . , and that defendant be and he is hereby ordered to make the monthly payments on the mortgage. . . as they mature; that in addition to payment on the residence, defendant be and he is hereby ordered to pay to plaintiff the sum of $200.00 per month for the care and support of the minor children and alimony to the plaintiff.”
At the time of divorce appellant had a retirement and disability income of $538.99 per month.
On August 8, 1968, one of the three girls married and appellant reduced the $200.00 per month payment to $150.00. When the second oldest girl became 18 and self-supporting, he reduced the payments to $75.00 per month. After appellee remarried and rented the residence, he ceased making the mortgage payments. At the time of trial his retirement and Veterans Disability pay had increased to $773.00. This amount being tax free.
Upon petition of appellee, the trial court found that appellant was liable for accrued child support arrearages in the amount of $3,700 and accrued mortgage payment arrearages in the amount of $2,163. The residence was ordered to be sold and the proceeds divided between the parties. Child support for the remaining child was fixed at $150 per month. For reversal appellant contends:
“I. The Court erred in awarding judgment to the appellee for arrearages in child support despite the agreement between the parties for reduction following marriage and attainment of majority and erred further in awarding judgment to appellee for the monthly mortgage indebtedness payments on the property following her remarriage and having vacated same and receiving rental sums in excess of the mortgage indebtedness due thereon. These judgments would result in an unjust enrichment to appellee and further in an inequitable financial hardship to the appellant.
II. The Court erred in awarding future child support of One Hundred Fifty Dollars ($150.00) per month to the daughter remaining at home, in view of the income and physical condition of appellant.
III. The Court erred in failing to give credit for the extensive governrhent benefits received by two of the daughters while' in college in the amount of One Hundred Seventy-Five Dollars ($175.00) per month per daughter.
There is a dispute between the parties as to the alleged agreement to reduce the child support payments to $150 upon- the marriage of the daughter. We cannot say that the charlcellor’s finding on this issue is contrary to a preponderance of the evidence.
In Cash v. Cash, 234 Ark. 603, 353 S.W. 2d 348 (1962), and Hinton v. Hinton, 211 Ark. 159, 199 S.W. 2d 591 (1947), we held that sums paid from social security payments and military allotments should be credited to child support awards. The $175 per month here given by the Veterans Administration to a child of a disabled veteran while enrolled in college does not necessarily fall within the same category — i.e., it is a specialty item available for use only under specified circumstances as distinguished from allotments and social security payments which are generally available for ordinary use. Whether the Veterans’ benefits should be credited when the matter of child support for college is specifically mentioned in a divorce decree ot at a time when a college education is the only issue is not before us.
Appellant to avoid the accrued arrearages relies upon cases from other jurisdictions such as Conklin v. Conklin, 223 Minn. 449, 27 N.W. 2d 275 (1947). However, we feel that appellant’s unilateral reduction is controlled by our own precedents such as Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), wherein we said:
“From the above there appears two sufficient reasons why appellant here could not, of his own volition, reduce the $200 monthly payment due op March 1, 1961. One is that the court (and the couyt alone) had the right to change the amount of the pward for the support for the two minor children — which the court in fact did later do. The other reásbn is that the court, had the facts and circumstanced justified, could have continued the original award/for not only the two minors but also for Bobby Jeaii who had become of age. The fact that the trial court later found appellant was under no obligation,/under the circumstances, to support Bobby Jean gave appellant no right to voluntarily stop part payment. A third reason might also be added — the award of $200 was for the maintenance of (three children and appellant had no right to qonplude that $66.67 was for TírVhivtr Titian /
the tllcu LUUU pUlllL UUl, LIJ-ClL HUgcH-lUll SUCH ¿IS U1IS LUU1U be avoided by setting forth in the decree under what circumstances monthly 'cj/ild support and alimony payments terminate without the necessity of court intervention. j
The trial court/in setting the $150 per month child support for the regaining girl stated:
“. . .1 wopld reduce it further, except for the fact there is qjiite an expensive orthodontic bill here, some thousand or so dollars, which is $55.00 a month or something like that. . .”
While on the evidence presented, we cannot say that the chancellor/hb'used his discretion, we do point out that the award is on the liberal side. Furthermore, we understand from the record that once the orthodontic bill is out of the way appellant will be entitled to a substantial reduction.
Affirmed with each party to bear his own costs.
/Holt, J., not participating. | [
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John A. Fogleman, Justice.
This appeal comes from the conviction of Ira Coleman Roberts of the crime of grand larceny. Since one of his points for reversal is the contention that the evidence is not sufficient to support the verdict, we will state the evidence in the light most favorable to the state. The state’s evidence was virtually uncontradicted.
The prosecuting witnesses in this case, James Peacock and Charles Peacock, are prosperous farmers from the vicinity of McCrory, Arkansas. They not only had farming operations, but also engaged in various other related and unrelated activities such as purchasing wet grain and operating a salvage business. Sometime in 1970 or 1971 Charles Peacock began having dealings with a man known to him as Bill Taylor, whose photograph was later identified as being that of Marshall May Powell. Taylor expressed interest in and knowledge about the Peacocks’ grain storage facilities, and in June of 1971 the Peacocks said that he informed them that he could introduce them to individuals in Texarkana, Arkansas, who had large quantities of “wet grain” to sell for amounts substantially less than the prevailing market rate. However, Taylor told them that these individuals would deal only in cash. Based on this information, the Peacocks withdrew $50,000 in $100 bills, in spite of the suggestion of the two bankers from whom they obtained the money that they use cashier’s checks. They proceeded to Texarkana, Arkansas, on June 2, 1971, where they met Taylor and appellant Roberts, who was introduced to them as “Doc” Wilson, at about 9:00 a.m. at a motel. In the introduction, Wilson was described as an associate who had been working with Taylor. The Peacocks said their journey left them extremely tired, so Taylor suggested they have a cup of coffee and invited them to a table already set up with a pot of coffee. At that time, Jim Peacock had $20,000 in his shirt and $50,000 was in Charles Peacock’s boots. $5,000 was left under the seat of their car. Roberts then went to the motel office to register for rooms because, he said, they might be there for some time. It was shown that Roberts procured two rooms, one in the name of George E. Wilson, and one in the name of Eddie Driver, an employee of the Peacocks who accompanied them to Texarkana in a separate vehicle. Roberts (Wilson) then rejoined the Peacocks and Taylor in the cafe. Taylor did not drink any of the coffee. After finishing their coffee, the Peacocks became very sleepy and wanted to lie down and rest. Taylor offered them his room, the one which Wilson (Roberts) had just reserved, and all four went to that room. Appellant sent Driver to the other room, suggesting that he take a nap. Jim Peacock testified that after entering the room he and the elder Peacock lay on the two beds. He said that he felt real drowsy, carefree and irresponsible, and that, in walking, he felt like he was floating. He also testified that he remembers seeing appellant “kind of petting my dad and feeling sorry for him,” and saying, “Mr. Peacock, take it easy and relax.” Charles Peacock testified similarly, and added that appellant helped him take off his boots. When the two Peacocks went to sleep, Charles still had the $30,000 in $100 bills in his boots and his car keys in his pocket, and Jim had $20,000 in $100 bills in his shirt. Upon awakening some four hours later, Jim Peacock, finding his shirt unbuttoned and money gone, awakened his father. They discovered that not only had Taylor and Wilson departed, but all their money was also missing and someone had left some aluminum pans, a wooden press, a quantity of paper, some of which had been cut to the size of currency, a black suitcase, and other paraphernalia in the room. Wet hotel towels were on the floor. Also, both Peacocks sensed a distinct odor characterized as being like “creosote dip.” The Peacock car keys were on a table in the room.
When the Peacocks arrived at the motel, the elder Peacock parked their car next to the automobile Taylor had been driving when he came to the Peacock farm. Taylor was present and supervised the re-parking of the Peacock vehicle because Charles Peacock had parked without regard to the parking guidelines. Charles Peacock locked the car when he got out of it. It was locked after the disappearance of Taylor (Powell), Wilson (Roberts) and the Peacock currency. The Taylor vehicle had also disappeared.
An investigating police officer described the memory of the Peacocks as “very blurry” when he first interviewed them after they had given the alarm upon discovering the disappearance of Taylor and Wilson and their money. Appellant offered only two witnesses. One of them was a motel employee, who said that Charles Peacock had told her he did not want his room cleaned because he did not want to be disturbed in doing some paper work. He also asked her for some extra towels. A waitress testified that when the elder Peacock ordered sandwiches he smelled like creosote.
Appellant alleges only two points as error. We find no reversible error. Appellant first contends that the use by the state of a photograph of one Marshall May Powell was reversible error. The photograph was used by the prosecution to establish the true identity of Bill Taylor and to connect the appellant with the other party to the alleged crime. Both Charles and Jim Peacock identified the person photographed as Bill Taylor and appellant as “Doc” Wilson. Eddie Driver also said that the photograph was of Bill Taylor. It served to show that both Powell and his alleged confederate were using fictitious or assumed names in their dealings with the Peacocks. Appellant takes issue with the fact that the state did not formally introduce this photograph into evidence, and argues that it was irrelevant. No objection was made to the identification of Bill Taylor made by the two Peacocks and Driver or to the testimony of two police officers who said that the man was actually Marshall May Powell. We do not see how this failure prejudiced the appellant in any way. Even if the photograph had been admitted and was irrelevant, the appellant has not demonstrated how he was prejudiced either by the state’s failure to introduce it or by its claimed irrelevancy. The only suggestion of prejudice was that the testimony showed that the individual pictured was well known by the Arkansas State Police. There was no evidence to show how the officers became acquainted with this person, and we do not find any implication that these officers were acquainted only with criminals. Also, when the photograph was identified by the last witness for the prosecution, the appellant was apparently asked if he wanted it introduced. The record is silent as to any response by the appellant.
Appellant’s other contention is that the yerdict is not supported by substantial evidence. With this we also cannot agree. While the evidence was basically circumstantial, the recitation of the facts as gleaned from the testimony of the Peacocks is sufficient. The appellant was placed at the scene of the crime; his companion knew where the Peacock vehicle was parked; he was shown to have possession of the elder Peacock’s boots which contained part of the stolen money; he took care to exclude Driver from the coffee table and the motel room where the Peacocks were; the use of aliases and the permissible inference that the coffee was “spiked,” and the virtual exclusiveness of the opportunity of appellant and Taylor to commit the theft, and the disappearance of the money, Powell, Roberts and the Powell car during the time the Peacocks were soundly napping were all circumstances from which the jury could have concluded that appellant was a participant in the crime. Circumstantial evidence is sufficient to support a criminal conviction. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822; Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201. The circumstances here meet the test as we have previously applied it. See Dolphus v. State, 248 Ark. 799, 454 S.W. 2d 88; Lancaster v. State, supra; Jefferson v. State, 89 Ark. 129, 115 S.W. 1140.
The judgment is affirmed. | [
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Carleton Harris, Chief Justice.
Petitioner, Gilbert Jackson, was sentenced to six years confinement in the Arkansas Department of Correction for Assault with Intent to Kill on June 18, 1969, and on November 20, 1969, was sentenced to one year imprisonment after pleading guilty to Escape, such sentence to commence at the expiration of the six year sentence , meaning that it was a consecutive sentence. Jackson filed a petition under the provisions of Criminal Procedure Rule I, asserting that his sentence was illegal, it being contended that there was no longer any authority for a consecutive sentence, and on hearing, it was further contended that the sentence should be set aside, or ordered to run concurrently, with the six year sentence. The trial court declined to grant relief, and from the judgment entered denying the petition, petitioner brings this appeal.
Here, it is now admitted that the court has authority to enter a consecutive sentence. See Ark. Stat. Ann. § 43-2311 (Repl. 1964). However, petitioner points out that Act 50 of 1968, codified as Ark. Stat. Ann. § 43-2807 (Supp. 1971), does away with consecutive sentences for parole eligibility purposes and makes all sentences cumulative (for parole purposes), and mentions the wording of the last sentence of this section, which reads as follows:
“For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative minimum and maximum time to be served.”
It is then argued that the words “single commitment” should be interpreted as authorizing only a single sentence, i.e., the one year sentence, and it is asserted that the wording of the statute mentioning consecutive sentences is merely superfluous.
We do not agree with this last argument nor with the interpretation reached by petitioner. Paragraph 1 of sub-section (c) of § 43-2807 provides:
“Individuals sentenced to a term of years prior to March 1, 1968 and those sentenced to a term of years after the effective date (February 12, 1969) of this Act, shall be eligible for release on parole after having served one-third (1/3) of the time for which sentenced with credit for good time allowances or one-third (1/3) of the time to which such sentence is commuted by executive clemency, with credit for good time allowances.”
And, the last line of the section, heretofore quoted, simply means that the six years plus the one year shall be treated as a single commitment. In other words, Jackson became eligible for parole after serving two years and four months less any credit for good time allowances. Petitioner seems to be under the impression that his failure to be paroled is due to the additional one year sentence, counsel stating in his brief that the “effect of the one-year sentence has apparently caused him to flatten a year.” Apparently, as pointed out by the Attorney General, petitioner is failing to give proper consideration to the word “eligibility” for parole. Of course, being eligible for parole on the basis of the time served, and being paroled are two different matters. Undoubtedly, other factors are considered by the parole board in addition to the amount of time served, one, of course, being the prisoner’s conduct. At any rate, there is no evidence in this record to sustain any allegation that the Department of Correction is ignoring or misinterpreting Ark. Stat. Ann. § 43-2807.
To summarize, we hold that under § 43-2807 (c) (2), petitioner’s six year and one year sentences are to be considered cumulatively as a seven year sentence, eligibility for parole being governed by § 43-2807 (c) (1). “Cumulative minimum” means the minimum sentence possible to be served under the provisions of § 43-2807 and “cumulative maximum” means the total amount of time fixed for incarceration as shown by the face of the commitments, considered as a single cumulative commitment.
There being no evidence that the parole board is ignoring or misconstruing the statute under discussion, or that Jackson is being held contrary to law, the judgment of the Pulaski County Circuit Court (First Division) is affirmed.
It is so ordered.
On the same date that Jackson was sentenced on the charge of Assault with Intent to Kill, he escaped from the custody of the bailiff of the court and on June 20, 1969, a felony information was filed by the Prosecuting Attorney charging Jackson with Escape.
From the Brief:
"The problem lies in the interpretation of what is meant by a single commitment reflecting the cumulative minimum and maximum time to be served. A single commitment in the instant case would have to be interpreted as a single sentence. In the instant case it would be a one-year sentence, and the wording of making it a consecutive sentence, is merely superfluous — it has'no effect whatsoever. And then this statute further states that this single commitment shall reflect the cumulative minimum and maximum time to be served.
There is nothing in this one-year sentence that reflects the cumulative (or added on) minimum or maximum time to be served. Technically, it would appear that this would amount to a concurrent sentence if no minimum or maximum time is specified to be served. The Court has the authority to specify that no minimum time is required to be served, or it can specify that one-third of the sentence must be served before the defendant can be eligible for parole. However, when the cumulative sentence (in this case one year) is silent as to reflecting the minimum and/or maximum time to b'e served, it should void the whole sentence for non-compliance with the statute.” | [
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Conley Byrd, Justice.
This zoning case arises out of an application by Harold Thompson, Sr., his sister Mrs. Rebecca Mitchell and Kenneth Storey to rezone a 74,400 square foot plot from R-2 Residential to B-3 Commercial for the purpose of constructing a supermarket. The application was denied by both the Planning Commission and the City Council. The trial court found that the property was adjacent to an established business district and concluded that the City was arbitrary and unreasonable in denying the rezoning. The City of Blythe-ville and a number of property owners as intervenors bring this appeal.
The property involved is located between Main Street (Highway 18) on the south, Walnut Street on the North, Walker Blvd. on the east, and Holland Street on the west. The area to be rezoned is shown in the shaded area of appellant’s Exhibit “E” attached hereto as an appendix. The record shows that the downtown business district of Blytheville lies west of and adjacent to Holland Street and all that area is zoned commercial. All of the property fronting on Main Street and south of the subject property between Holland Street on the west and Walker Blvd. on the east is zoned and used as commercial property. Immediately east of Walker Blvd. on the south side of Main Street is a four family apartment building. North of Walnut Street the zoned commercial area extends east from Holland Street approximately 110 feet. Four lots east (each lot being approximately 60 feet) of the commercial area just described, appellee Mitchell owns the property north across Walnut Street from the property sought to be zoned. In the block where the subject property is located an alley between the lots fronting on Walnut and Main Streets extends from Holland to the subject property. Thompson proposes to leave a 175 ft. residential lot owned by him and occupied by his son as a buffer to the residential property to the east. All of the lots fronting on Main ánd west of the proposed supermarket center have been commercial for several years. In 1971 the city zoned a lot (104 X 140) in the southwest corner of the proposed supermarket center for commercial use.
It is undisputed that most of the residences in the area are approximately fifteen years old. It is also undisputed that Interstate 55 was opened in 1966 and that since that time Main Street (Highway No. 18) has served as the main traffic artery between the downtown business section of Blytheville and the Interstate. Since that time there has been no further residential construction on Main Street. In fact there has been some commercial development on Main Street from the Interstate interchange back toward the area in question. East beyond the Interstate lies the Blytheville Industrial Park.
E. M. Terry, a qualified Real Estate Appraiser, pointed out that the Thompson residence, containing one bedroom and a half bath upstairs and ten rooms and two baths down stairs, is a large house containing a great deal of functional obsolence, lacking in such things as central heat, central air-conditioning and a built-in kitchen. According to him the existing value of the 74,400 square feet under present zoning would be $42,700 as opposed to a value of $100,000 if the commercial use were permitted. The residential property to the west of the subject property on Walnut was described as 900 to 1,000 square feet residences ranging in value from $9,500 to $13,500. He pointed out that the commercial area on Main Street was in existence when those houses were built. Mr. Terry also pointed out that appellee Mitchell owned about 400 feet of the frontage on the north side of Walnut across from the subject site. That property contained four low cost rent houses ranging in value from $3,000 to $4,000. In addition to describing the service stations, drive-ins and bar taverns located on Main across from the block in which the subject property is located, he described the residential area to the east of Walker Blvd. as containing residences valued somewhere from $18,000 to $28,000. He pointed out that Mr. Tyrone, the owner of property at 717 Main, being east of the proposed supermarket, had an 18 X .20 ft. office on the side of his carport that he used as the business office of Acme Termite Company. He pointed out that since 1966, the daily traffic count between down town Blytheville and the Interstate had increased from 5,000 to 6,000 vehicles per day to 10,200. Because of the location of the Blytheville Industrial Park and the buildup of the commercial area around the Interstate interchange, he expressed the opinion that the daily traffic count on Main Street would continue to increase. In concluding that the highest and best use of the subject property was for commercial purposes, he stated that in his opinion the construction of the supermarket would have a minimal effect on the residences in the area. In making this conclusion he pointed to the negative influences already created and his observation of other commercial encroachments in the City of Blythe-ville.
Thomas L. Hodges, a City Planning Consultant, testified to a comprehensive Development Plan recently adopted by the City in which the subject property was designated as residential. It was his opinion that commercial development should not be allowed to occur in that area except for a buffer type use. According to him a buffer type concept provides that there should be a gradual transition so that a minimum amount of nuisance and conflict would occur. He did not consider the residence occupied by Thompson Jr., the 175 foot lot adjacent to Walker Blvd., as a buffer. According to him the rezoning would have an adverse effect from noise, lights and increase in traffic and would be the first commercial development to intrude on Walnut, east of the established business area. It was his view that the entire area on three sides of this property was composed of substantial well kept residential property which should be preserved in the comprehensive zoning plan. He also stated that if the rezoning petition is granted, the City would have to make further modifications in the traffic pattern. On cross-examination after stating that the daily traffic count on Main Street was at least .10,-000 vehicles and increasing, the following occurred:
“Q. In other words, we have a busy thoroughfare there?
A. Yes, sir.
Q. Would you say the homes in that area from Walker Blvd. along Main Street east are desirable residences for the rearing of children?
A. Yes, sir.
Q. You don’t think the heavy traffic would affect them.
A. I am sure it might have some effect but they have back yards and that is where the children normally play.
Q. I believe you said, in your opinion, the building of this grocery store would not greatly increase the traffic?
A. I didn’t say that. I said that other considerations were more important than what the increase was on Main Street and as a proportionate ratio of traffic on Main Street I would think that the increase would not be that substantial.”
Richard Reid, an Attorney and Chairman of the City Planning Commission testified that the City Planning Commission unanimously recommended that this rezoning petition be denied. It was his feeling that it would adversely affect the adjoining residential property and particularly the property on Walnut Street that would be blocked off to itself and left stranded. Having it zoned from street to street and having parking and an open area clear through, it would be a traffic flow from Walnut to Main and increase traffic problems on both streets. The other reason he felt that it should not be rezoned was that this was not an expanding commercial area. There was property in the area not too far west which was vacant and needed to be developed. There was no need to expand the commercial area. On cross-examination Mr.,. Reid stated that the property west of the subject property on both sides of Main is commercial, but it has been frequently vacant, has got vacacies there now and there is property for sale in this area. The “Tonks” are in the area. Commercial development normally moves from the downtown area if it is needed, but there is an area within the downtown area that is for sale and should be developed before any further development occurs. There was no need for expansion in this area at this time, it has a good use as a residential area, there is a substantial home on it and he did not feel that the commercial area needed to be extended.
Clarence E. Johnson, a certified public accountant, testified that there was no projection of commercial property on Walnut Street anywhere in that area and that if this rezoning is permitted the residences on Walnut, west of the subject property, would be penned in and isolated and the values thereof would decrease considerably. On cross-examination Mr. Johnson admitted that when he built his home at 713 Main, the first commercial property on the south side of Main was the Tastee Freeze (625 Main), and the next buildings were the “Tonks” and “Joint”. On the north side was the old F. L. Wicker building and the concrete building Mr. Abbott owns. Going back west was the Jack Robinson’s Gin and then Gilbert’s Upholstery. The Gulf Station east of the Tastee Freeze and the Mini Mart have been built since he built his home in 1956.
Denny Wilson, a member of the City Council, testified that a supermarket of the caliber that the Storey Brothers have built in the city already would be a nuisance to that area. Furthermore it would create a traffic problem and would cause a devaluation of the property in the area. After pointing out that he was alderman for the ward where the property is located, he was asked if he saw any problems with the location of a big supermarket on the subject property. Mr. Wilson answered as follows:
“A. Yes, particularly to the traffic situation, due to the new extension of the one-way streets. Yes, sir, I do, there is a number of things I base that on because Highway 18 will eventually be divided in this area and one-way traffic is going to be going to Walnut Street, one-way traffic going west and one- way traffic on Ash would be entering into State Highway 18 on the eastern flow, this already is a problem here for entering because of the heavy traffic and because of this man running a used car lot, Mr. Gilbert on this corner, we have had a lot of complaints about that—
Q. Is that also in an R-2 Zone?
A. Yes, Sir.
Q —Then in the winter time especially, this part of the highway is hard to get into because of the steep incline and if there is a little ice or something on there it also creates a great problem. Eventually, if this building is built here as has been proposed, this would throw, all the western traffic and make North Walker Blvd. an expressway between Main Street and Walnut Street to handle the large trucks that will be setting out here about 27 feet in the the street, according to the proposal of building to be erected here. Generally those trucks, those trailer trucks are about 40 feet long, with a 15 foot dock so that will put 27 out in the street. We already have a problem on Walnut Street because of people coming in off of interstate, Main Street can’t carry it so they turn on Walnut one block and then come through to town the best way they can. We have a moving and storage business over there that also parks trucks out in front for loading ánd unloading. It is an established business but it creates complaints and problems which we voice to them to try to get that cleared up, so all in all the whole picture all the way around causes traffic problems and it looks to me this new business would create a problem.”
Thereafter the following occurred: .
“THE COURT: I wasn’t quite clear, this witness mentioned something about they planned to create one-way streets. I didn’t quite follow that. Is Main Street going to be created into a one-way affair there?
WITNESS: No, sir, it will come in at the corner of Laclede, Ash will come into Main at the corner of Laclede which is about, oh, I guess, about 150 or 200 feet from the property we are talking about.
THE COURT: What about Walnut, is it going to be created into a one-way street?
WITNESS: Yes, sir, beginning at Laclede.
THE COURT: In other words, it won’t come east to where this property is?
WITNESS: The starting of the one-way part that you are talking about?
THE COURT: Yes, sir.
WITNESS: No, sir, it will not.”
Bob McHaney, a member of the City Council, testified that the homes in the 700 block on East Main were well kept — he would call them prestige homes. He, while recognizing the increase in traffic on Main Street, opposed the rezoning because it would be the first commercial development beyond Holland Street on Walnut and because it would increase the traffic flow and traffic problem. On cross-examination, he testified as follows:
“Q. Mr. McHaney, are you aware of the fact there is an established business district starting from this property all the way back to down town?
A. On Main Street, yes.
Q. To rezone all this property would be simply extending the present B-3 zone?
A. Yes, sir.
Q. Do you have any objections to grocery stores or supermarkets?
A. No I have no objection to grocery stores, I eat out of them, they furnish my food.”
We have consistently recognized that zoning ordinances are valid as against constitutional objection, only by reason of the police power, City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370 (1964), and that such ordinances must bear some definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city, City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S.W. 2d 583 (1939).
In a number of cases, we have recognized that a residential restriction is arbitrary and unreasonable where traffic conditions have substantially reduced the residential value of property in an area. See City of Little Rock v. Andres, supra, and City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W. 2d 923 (1965).
In the Sun Building & Developing Co. case, supra, it was pointed out that a refusal to rezone property because other available property is already zoned for such purposes can create a monopoly contrary to Art. 2 § 19 of the Arkansas Consi tution.
Finally in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), in dealing with the refusal of a city to rezone property adjacent to an existing business district, we said:
“...There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property. It is the contention of the protestants that residence pro perty adjacent to a business district becomes, on that account, less desirable for residence use. Conceding this to be true, and it is undoubtedly true, in a sense, that property thus located is not as desireable as residence property, it demonstrates the right of owners of borderline property between residence and business district to use their property for either purpose. In other words, if it has become less desirable for residence property because of its proximity to the business district, they have the legal right, without interference, to use it for business purposes. ...”
In the case at bar there is no doubt that the property in question is adjacent to existing business property and the trial court correctly held that the refusal to rezone was arbitrary.
Affirmed.
Harris, C.J., and Fogleman, and Jones, JJ., dissent. | [
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Frank Holt, Justice.
The appellant, by a petition for mandatory injunction, sought to require the appellee, at its own expense, to screen its junkyard or remove it 1000' from the adjacent highway right-of-way. The appellee responded by asserting Ark. Stat. Ann. § 76-2513 et seq. (1971 Supp.) (Act 640 of 1967), which gives the appellant the asserted authority, is illegal, unconstitutional and void in that it purports to authorize the appellant to take appellee’s property without due process of law and adequate compensation. The chancellor held the statute unconstitutional as applied to the appellee because it is in violation of our constitution which prohibits the taking of private property for public use without just compensation. For reversal the appellant contends “[Tjhat the trial court erred in holding Act 640 of 1967 unconstitutional as applied to the appellee, *** and by denying and dismissing the appellant’s petition for a mandatory injunction pursuant to the aforesaid act.” We agree with the chancellor.
In 1955 our legislature enacted Act 212 (Ark. Stat. Ann. § 76-129 et seq.) to regulate the existence of junkyards. That Act provided for a $100 per day penalty whenever a person keeps or maintains ”***[A]ny place where five (5) or more junk, wrecked or non-operative automobiles or other vehicles are deposited, parked, placed, or otherwise located***” within one-half mile of any paved highway of this state.
In Bachman v. State, 235 Ark. 339, 359 S.W. 2d 815 (1962), we construed the Act unconstitutional because it was arbitrary and unreasonable. In doing so, however, we quoted as follows from W. C. Farley, etc., v. Patrick C. Graney, State Road Commissioner, etc., W. Va., 119 S. E. 2d 833:
“***It can not be gainsaid that at this time the great weight of authority is to the effect that esthetic considerations alone will not justify the exercise of legislative authority under the police power. But on the other hand, it is perhaps just as well established that esthetic considerations may be given due weight in connecdon with other factors which support legislative exercise of the police power. It is clear also that there is in this day a marked tendency to accord greater importance to esthetic considerations.’”
Then we said:
“In this modern age when our highway system is being expanded and improved, and when more attention is being given to their beautification for the attraction of tourists, we deem it wise not to close the door on the aforementioned tendency to broaden the scope of the State’s police power.”
Five years later the legislature enacted our present Act 640 of 1967 (§ 76-2513 et seq.), which provides that the operation of a junkyard is a public nuisance whenever it is located within 1000' of the nearest edge of the right-of-way of any Interstate, Primary, or other State Highway designated by appellant, unless it is screened from the view of the traveling public or removed a distance of more than 1000' from the nearest right-of-way line. The Act authorizes the appellant “to promulgate rules and regulations governing the location, planting, construction, and maintenance, including materials used therein, of the screening and fencing required under this Act.” As indicated, this litigation resulted when the appellee refused to comply with appellant’s requirement that appellee screen or remove, at its own expense, its junkyard from public view.
It appears that for approximately twenty years this type of operation was conducted at the present location. The appellee has owned and operated this business since October 1, 1965, or before the enactment of the present legislation. The business fronted upon an existing highway within the city limits of West Helena, Arkansas. In 1966 or a year before the present Act, appellant, at its expense, constructed and completely screened the 500' frontage of appellee’s salvage operation adjacent to the then existing highway so that the salvage yard was invisible to the traveling public. This screen was approximately 10' in height. About two years later the Helena Loop or bypass was constructed adjacent to another portion of appellee’s property. This resulted in another public exposure of the existing junkyard. The appellant erected a transparent type chain link fence approximately 6' in height along the 611' frontage of this bypass. Subsequently, the appellant, pursuant to the rules and regulations as authorized by the provisions of Act 640 of 1967, demanded that appellee effectively screen the renewed exposure of its operation from the view of the traveling public. According to the appellee, its business investment totaled $100,000 and it would require an expenditure by it of approximately $7,000 to comply with the type of screen that the appellant had constructed at its own expense a few years previously on the other side of appellee’s property. Appellee had insufficient space to “move back 1000 feet.”
The narrow issue posed is whether the imposition of this expense upon the appellee is a taking or exaction of his property rights without just compensation and due process of law.
It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.”
It was aptly said in Ark. State Highway Commn. v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):
‘“The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’”
In the case at bar, as appellant asserts, the police power of the state has long existed to validly impose regulations pertaining to property usages. However, it does not follow that such power can be exercised in an absolute and arbitrary manner. Tn City of Little Rock v. Hocott, 220 Ark. 421, 247 S.W. 2d 1012, (1952), a zoning case, we said:
“Thus we have a conflict in the evidence as to whether the area in question is susceptible of use or development for one-family residences, as restricted by the ordinance, and also whether the development and use contemplated by appellees would adversely affect the value and use of other residential property in the neighborhood. If both questions are answered in the negative, then the action of the council in rejecting the petition of appellees is unreasonable and arbitrary, as applied to the area in question, in that it constitutes an unlawful deprivation of the use of the property by appellees.”
Also, the rule of law is well established that when a property owner suffers damages special in nature to himself and not suffered by the public in general, the property owner is entitled to just compensation. Wenderoth v. Baker, 288 Ark. 464, 382 S.W. 2d 578 (1964), Ark. State Hwy. Commn. v. McNeill, 238 Ark. 244, 381 S.W. 2d 425 (1964).
In the case at bar, we do not construe Bachman v. State, supra, as being broad enough to permit the enactment and enforcement of legislation which would require the appellee, whose business was in lawful existence at the time of the passage of this Act, to be burdened with the expense of screening his property upon the relocation of the highway. The Act actually recognizes that just compensation “shall be paid” to the owner of a junkyard in certain circumstances. It provides “that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal” of junkyards lawfully in existence. Appellee’s junkyard was lawfully in existence when the Act was enacted. Since the Act provides that, in the above enumerated instances, the owner “shall” be justly compensated, it is difficult to perceive why appellee should be required to screen his lawful business from public view without just compensation. We agree with the chancellor that the imposition of the cost of the screening upon appellee would be a deprivation of his vested property rights without just compensation and, therefore, is unconstitutional as applied to him.
Affirmed.
Brown, J., not participating. | [
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John A. Fogleman, Justice.
This appeal involves the construction of the severance tax act. See Ark. Stat. Ann. § 84-2101, et seq. (Repl. 1960). The chancery court held that the tax levied by the act applied to oil produced by appellant and consumed by it in a recovery procedure by which it injected steam into the producing sands in its unit for the purpose of raising both temperature and pressure, thereby substantially increasing the crude oil production from its wells. We agree with the chancellor’s conclusion.
Phillips Petroleum Company is engaged in exploring for, producing, refining and marketing oil and oil products. It is burning a part of the oil produced by it to generate the steam injected into the earth at the level of its oil-producing sands for the purpose of reducing the viscosity and improving the flow of oil into its wells. It brought this action to recover its payments of severance taxes on the oil so utilized made under protest and for a judgment declaring that oil hereafter used for these purposes is not subject to the tax. Appellant asserted in the trial court that this oil was not severed because it is not produced for commercial purposes.
The oil produced from appellant’s wells is pumped into a storage tank, from which it is either sold to a purchaser or returned to a fuel storage tank from which the steam generator is supplied. Although the unit agreement under which appellant was operating permitted it to use crude oil, Phillips pays royalty on the oil burned in the operation. An auditor for the Arkansas Department of Finance and Administration testified that the tax collected was based on reports of sales filed by Phillips which included the oil burned, and broken down to show the quantity sold and the quantity burned. He said that the tax was to be paid at the time the oil left the storage tank.
Phillips states that it is not claiming an exemption from the tax for the oil burned, but does claim that the tax does not apply to it, and that any uncertainty about the application of the tax must be resolved in its favor. It relies principally upon the case of McLeod v. Kansas City Southern Ry. Co., 206 Ark. 281, 175 S.W. 2d 391, where we held that gravel mined by a railroad company and used by it for ballast on its tracks was not subject to tax. But we did not hold in McLeod that the tax did not apply because of the use to which the gravel was put. We held that the tax, being a privilege tax or occupation tax levied on all engaged in the business of severing natural resources for commercial purposes, did not apply because the railroad company was not engaged in that occupation. The tax is specifically levied upon “each producer of natural resources.” The railroad company was not. Appellant admittedly is. McLeod has no application to this case.
The tax is levied upon the quantity of oil “severed” at the rate of 5% of the “market value at time and point of severance.” Ark. Stat. Ann. § 84-2102. “Sever” is defined by statute to mean “natufal resources cut, mined, dredged, or otherwise taken or removed, for commercial purposes, from the soil or water,” but does not apply to natural gas returned to any formation, in repressuring, pressure maintenance operation or other operation for the production of oil or any other liquid hydrocarbon. Ark. Stat. Ann. § 84-2101(e). The “time of severance” is defined as the date upon which transportation of natural resources has been or is about to be commenced for their use or processing after having been severed. Ark. Stat. Ann. § 84-2101(e). The “point of severance” is defined as the place where transportation of natural resources has been or is about to be commenced for use or processing after their having been severed. § 84-2101(d). It seems quite clear to us that, when the oil reached the storage tank, transportation was about to be commenced for its use, either by appellant for fuel or to the market for sale.
Appellant contends, however that the oil used to produce steam is not severed for commercial purposes, arguing that consumption of the oil by it is not a commercial purpose because it is not sold or traded. It takes the position that a severance is not for commercial pur poses unless the product is actually sold or placed on the market. We do not think that the General Assembly had any such narrow definition in view, nor do we find such a narrow construction of the words “commercial purposes” to be consonant with the legislative purpose and intent evidenced by other provisions of the act and by other legislative action. Neither do we take the holdings in McLeod v. Kansas City Southern Ry. Co., supra, Floyd v. Miller Lumber Co., supra, and Miller Lumber Co. v. Floyd, supra, to turn upon the fact that the resources involved were or were not disposed of on the market. The determinative factor in those cases was the business in, which the concerns from whom collection was sought were engaged. The same distinction also applies to Scurlock v. Greene County, 225 Ark. 507, 266 S.W. 2d 811. The question, of course, in those cases was not the use made of the products, as appellant suggests; it was the primary business of either concern involved. If the railroad company had engaged in the marketing of the products as a secondary business or even incidental to its primary business, a different question might well have been posed.
We are inclined to believe that the legislature had a broader definition in view# and that the proper approach to determine the meaning to be given to these words is similar to that taken to arrive at the meaning of the same words by the Supreme Court of Utah in Beard v. Board of Education of North Summit School Dist., 81 Utah 51, 16 P. 2d 900 (1952). In construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language. Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 559 S.W. 2d 449, cert. denied, 371 U.S. 955, 85 S. Ct. 511, 9 L. Ed. 2d 501 (1962); City of Fort Smith v. Hairston, 196 Ark. 1005, 120 S.W. 2d 689. B.y resort to Webster’s New International Dictionary, the Utah court found that the common dictionary meaning of the words was in harmony with the definitions accorded them in the de cided cases. The dictionary definition of a commercial purpose might be stated as an objective, end, operation, design or intention pertaining to the exchange or buying and selling of commodities, and particularly the exchange of merchandise on a large scale between different places and communities. TheBeard court found that, by application of this definition, other courts had found that the words encompassed more than the buying, selling and exchanging of commodities, and that the transportation of merchandise from one place to another was included within their scope as well as the idea that trade and commerce require the transfer of persons, commodities, or intelligence from one place or person to another. While quite a different problem was presented in Beard, the court found that the very words we are considering had a broader meaning than appellant would have us give them.
The first indication that the General Assembly did not intend that sale be the only commercial purpose contemplated appears in its use of the expression “sale, commercial gain or profit” in its obvious reaction to the McLeod decision by the proviso in Section 2 of Act 136 of 1947. See Ark. Stat. Ann. § 84-2102(h). We ourselves have evidenced our feeling that sale was not the exclusive commercial purpose envisioned in Scurlock v. Greene County, 223 Ark. 507, 266 S.W. 2d 811, when we emphasized that the county severed gravel for use of its highways and “not for sale or other commercial purpose.”
If we follow the meaning we arrive at by analysis of dictionary definitions and if the oil in question was extracted from the soil with an objective, design and intention pertaining to the exchange or selling of a commodity (oil), then there was a severance. This was certainly the purpose of the extraction of the oil in question and its utilization to produce more oil from the earth is in fulfillment of that objective. The legislative intent that the products used by a producer such as appellant for the purpose of increasing its production in the manner utilized by appellant may be illustrated in several ways. The tax is calculated on the “market value” of the product, not its selling price. And then, the proviso incorporated into the act for the purpose of exempting such severers of natural resources as use them for their own purposes, but not for “sale, commercial gain or profit” states that the tax does not apply to an individual who occasionally severs natural resources from his own premises to be utilized by him in the construction, repair or maintenance of his own structures or improvements. There is a further provision that the act does not apply to the producer of resources severed for the purpose of incorporation into a structure used in connection with any commercial business of the producer. Appellant is not contending that it comes within either of the above categories or that it was favored by a tax exemption. The point is that the act must be construed to have applied to the exempted producers or production in the absence of the provisos. The legislature will not be presumed to have done a vain and useless thing. Quite the opposite is true. Wells, Fargo and Company’s Express v. Crawford County, 63 Ark. 576, 40 S.W. 710, 37 L.R.A. 371; 2 Horack’s Sutherland, Statutory Construction, 327, § 4510; 50 Am. Jur. 358, § 357; 82 C.J.S. 551, Statutes, § 316. See Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257; 82 C.J.S. 652, Statutes, § 329. If, in the absence of these stated exemptions, the producers favored by them would have been liable for the tax, it seems clear to us that appellant is liable for the tax it seeks to avoid here in the absence of an exemption in its favor.
The significance of the omission of a specific exemption favoring appellant is magnified by two other factors, i.e., the exclusion from the definition of “sever” of natural gas returned to a formation in répressuring, pressure maintenance or other operation for production of oil and the subsequent legislative grant, by Act 493 of 1973, of an exemption to those engaged in such an operation as that being conducted by appellant. If the legislature had not considered the burning of oil to produce steam or other uses of oil in other methods of repressuring or pressure maintenance to constitute a severance, it would have broadened the exclusion from its definition to include such operations.
Our construction of the basic act is fortified by the passage of Act 493 of 1973, which exempted the products used by appellants, and others, in the manner involved here. Here again, we must presume that the General As sembly did not intend to purposelessly pass an act, so the act must be taken as indicative of a previous legislative intent that the oil burned by appellant in its recovery processes be subject to the tax. Legislative intent is to be determined by a consideration of all legislation— prior, contemporaneous and subsequent — on the subject. In LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235, we adopted and applied the principles then aptly stated at 59 C. J. 1042, which include the following:
The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the legislature, or to discover how the policy of the legislature with reference to the subject matter has been changed or modified from time to time. In other words, in determining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. With this purpose in view therefore it is proper to consider, not only acts passed at the same session of the legislature, but also acts passed at prior and subsequent sessions, and even those which have expired or have been repealed.
We are not impressed by appellant’s arguments that the requirements of § 84-2105 that the producer collect or withhold from the proceeds of sale of natural resources the tax due by the respective owners of the resources at the time of severance and the requirement by § 84-2107 of reports from those who purchase natural resources from producers are a clear indication that the legislature intended that the tax only apply to sales. The first section simply permits the producer to distribute the tax burden proportionately among owners of the resources sold. The latter one is simply a means of enforcement of the collection of the tax.
If the legislature had meant for, the tax to be paid only on the products sold or exchanged or produced for sale or exchange, it could have said so in simple words and minimized the necessity for definition of terms.
The decree is affirmed.
Byrd, J., dissents.
See Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S.W. 450, 32 A.L.R. 811; Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S.W. 741, aff’d, 273 U.S. 672, 47 S. Ct. 475, 71 L. Ed. 832 (1926).
ActuaIly the Miller Lumber Company cases themselves are somewhat indicative of a different view because all the lumber companies involved were manufacturing lumber and other finished products,' and considered the severance of timber only as an incidental step in the process. | [
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PER CURIAM
Rule 8(c) of the Procedural Rules of this court is hereby amended to incorporate the per curiam order of this court with reference to typewritten briefs, entered November 3, 1969, so that said rule shall read as follows:
(c) Typewritten Briefs. — When typewrtten briefs are permitted, they shall be written on letter-size paper, i.e., 8!4 x 11, and shall be bound by stapling or other binding devices on the left margin. If staples are used for binders, and the brief exceeds forty (40) pages in length, it shall be divided into volumes of not more than forty (40) pages each. Attorneys for indigents in criminal cases shall file typewritten briefs unless the court directs otherwise. | [
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Frank Holt, Justice.
Appellants were convicted of various misdemeanors in a municipal court. These misdemeanors consisted of assaults and batteries and disturbances of the peace. The circuit court held the appellants had not perfected their appeals and dismissed them. For reversal the appellants contend “[Ajppellants made effort to perfect their appeals and substantially complied with Ark. Stat. Ann. § 26-1301, 1302, 1306 and 1307.’’ We think the circuit court was correct.
It appears from the record before us that appellants only compliance with the procedural requirements for appeal was filing a notice of appeal within 30 days from the rendition of the municipal court judgment. The notice of appeal was filed in the circuit court along with payment of the filing costs. The municipal court clerk testified that she “picked up” a photostatic copy of the notice of appeal from the circuit clerk’s office. However, she never received any payment of the clerk’s fee for preparation of the municipal court’s proceedings, nor a request that the transcript be filed with the circuit court. According to the municipal judge, he received a copy of the notice of appeal which was filed with the circuit clerk. However, he never received a request for a transcript and, further, the appellants never posted an appeal bond. It appears undisputed that the appellants filed no appeal bonds with the municipal court and never made a request to the municipal court or the clerk for a transcript.
It is well established that the burden is upon the appellants to make certain that the municipal court transcript is filed with the circuit clerk within the 30 day limitation in the event the transcript is not filed by the
municipal court clerk as required by § 26-1307. Whitely v. Pickens, 225 Ark. 845, 286 S.W. 2d 4 (1956), Hot Springs Civil Service Comm. v. Miles, 238 Ark. 956, 385 S.W. 2d 930 (1965), Sheridan v. State, 239 Ark. 322, 289 S.W. 2d 232 (1965). Further, § 26-1307 applies to misdemeanors and civil cases alike. Massina v. State, 211 Ark. 1060, 204 S.W. 2d 547 (1947). Compliance with this section is mandatory and jurisdictional. Whitely v. Pickens, supra. When it is clear that the court will not file the transcript, “the party appealing must assume the burden of taking prudent and diligent measures to protect his right of appeal, eliminating burdens of a character completely beyond his control.” Brown v. Curtis, Clerk, 254 Ark. 162, 492 S.W. 2d 235 (1973). There we further stated “[Filing within that period is excused only when **** the taking of these measures is prevented by matters completely beyond the control of the appellant.” In the case at bar we find no merit in appellants’ assertion of substantial compliance with the required procedure to perfect their appeals. Certainly it is not demonstrated that the failure to file the transcript was due to conditions beyond their control.
Appellants next assert for reversal that “[Pjlacing a companion (burden) of lodging an appeal on the appellants when the appellants have given notice and requested the appeal is violative of fundamental due process and the right of unhampered access to the courts protected by the fifth and fourteenth amendments to the United States Constitution.” As we understand the record as abstracted this issue was not presented to the court and is not properly before us as we held in Brown v. Curtis, Clerk, supra. Furthermore, appellants base their argument as to the asserted violation of their constitutional rights upon indigency. There is no showing whatsoever that the appellants are indigents. Again the legal responsibility for perfecting an appeal in this state has long been fixed by our statute and upheld by this court in our many previous decisions. In the case at bar, as indicated, there is a noncompliance by the appellants with out prescribed procedures.
Appellants, also, assert that “[I]f a person cannot post an appeal bond, he must then serve the jail sentence and/or pay the fine imposed. Inability to post an appeal bond should not render an appeal impossible.” Even if this contention was properly before us, we cannot agree inasmuch as the appellants have not demonstrated financial inability to pay the appeal bond which they never requested.
Affirmed.
Byrd, J., dissents. | [
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George Rose Smith, Justice.
The appellant was found guilty of burglary and grand larceny and was sentenced to four years imprisonment upon each charge, the sentences to run consecutively. Three points for reversal are submitted by his court-appointed counsel.
First, the sufficiency of the evidence is questioned, but we find no merit in this contention. On the night of June 17, 1972, a burglar alarm went off at the Texarkana police station, indicating the presence of an intruder at the Oklahoma Tire & Supply Company store, which was closed for the night. In response to a call from the police the manager of the store met the officers there. A search of the premises showed that someone had entered the building by breaking a window that gave access to the attic from the roof. On the ground floor a glass gun-cabinet had been broken into. A .38 caliber revolver was missing, plus ammunition.
Upon searching the roof the officers found the appellant, who was trying to hide. Just before his apprehension the appellant threw down a revolver, which was positively identified by its serial number as the missing weapon. The manager testified that two days earlier the appellant had been in the store, inquiring about buying one of the firearms in the cabinet. The jury was certainly justified in finding from the testimony that the appellant broke into the store and stole the revolver.
Secondly, the appellant argues that the trial court improperly singled out one fact and improperly commented upon the evidence, by instructing the jury that possession of recently stolen property is a circumstance that the jury may consider along with all the other facts and circumstances in determining whether the person in possession of the property stole it. We find no error. Our cases have considered two methods of instructing the jury upon this point, one good and the other bad. The distinction is clear:
“On the one hand, it is permissible for the court to instruct the jury that a certain fact, such as the possession of recently stolen goods, goes to the jury for its consideration in connection with the other evidence as tending to show the guilt of the accused. . . . On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like.” Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958).
Here the trial court’s instruction was in the approved form.
Thirdly, the appellant complains about the State’s closing argument to the jury, in that the prosecuting attorney suggested that the defendant’s plea of not guilty, in view of the evidence, was such an insult to the jurors’ intelligence as to warrant their doubling the punishment. The trial judge, in our opinion, properly denied defense counsel’s motion for a mistrial. “An award of a mistrial is a step so drastic as to be the exception rather than the rule as a means of correcting an error. For such a step to be warranted it must be apparent that justice cannot be served by a continuation of the trial.” Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). We cannot say that the prosecutor’s argument was so prejudicial as to be beyond correction. The court promptly admonished the jury that every person charged with an offense has the right to a trial. No further admonition was requested by counsel. Furthermore, the court had already told the jury, in the language of AMI 101 (Civil), that the attorneys’ arguments are not evidence and should be disregarded if they have no basis in the evidence. We conclude that no prejudicial error is shown.
Affirmed. | [
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Joe C. Barrett, Special Justice.
Anderson Gene DuBois was convicted of murder in the Crittenden County Circuit Court and sentenced to death. While imposition of the death penalty was not constitutionally permissible, we would not reverse this case solely on that ground, but would remand it for resentencing in line with the procedure approved by this court in O’Neal v. State, 253 Ark. 574, decided December 11, 1972.
The controlling principle involved in this appeal is the application of Section 43-2116, Arkansas Statutes Annotated to the record made in the trial court. That Section reads as follows:
“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; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.”
Obviously the charge upon which DuBois was tried is a felony.
ACCOMPLICES
Counsel for DuBois forcefully argue that witnesses, Linda Austin and G. W. Stewart, were accomplices to the crime for which DuBois is charged.
In Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601, this Court said:
“There is a conflict of authorities as to whether an accessory after the fact is an accomplice, but the decisions of this Court are to the effect that he is.”
Applying this rule, whether Mrs. Austin, Mr. Stewart or either of them were accessories before or after the fact or actively participated in the commission of the crime becomes immaterial if, in fact, they were either.
In Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003, this Court said:
“We have approved the following test applied to determine whether one is an accomplice: ‘Could the person charged be convicted as principal or an accessory before the fact or an aider and abetter upon the evidence? If a judgment of conviction could be sustained then the person may be said to be an accomplice. . .’ ”
In Froman and Sanders v. State, supra, this Court quoted with approval the following statement from Underhill’s Criminal Evidence, 5th Edition, Volume I, Page 335, as follows:
“The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the Court as a question of law, but if the evidence is conflicting as to the participation of the witness in the commission of the crime the matter should be left to the jury under proper instruction as to intent and participation.”
Applying these tests to the record in this case, this Court is of the opinion that Linda Austin, at least, was an accessory within the meaning of Section 43-2116.
The record reflects that at the time of the trial of DuBois, G. W. Stewart was charged along with appellant and Jerry Austin with the murder of Mack Howell. He had been held in the West Memphis City Jail from the time of his arrest until the time of the trial. During the trial counsel for the State conceded that Stewart was an accomplice. In view of this concession by the State, for the purpose of review (as distinguished from what may occur on a re-trial), we must accept Stewart’s status as an accomplice. Such concession having been made in the trial of this case, it relieved the defense counsel from the burden of proof on the subject and may well have affected the trial strategy or the method of going forward with proof and in the nature of the argument.
CORROBORATIVE EVIDENCE
In Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222, this Court said:
“... Uncjer the statute a conviction for a felony cannot be had upon the testimony of an accomplice ‘unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.’ Ark. Stat. Ann. Section 43-2116 (Replacement 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, ‘if the testimony of the accomplice is eliminated from the case,’ the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943).”
While the writer of this opinion feels that this test is too rigid, nevertheless, I feel bound by the prior decisions of this Court.
If it be determined as a fact that G. W. Stewart was not an accomplice as that term is defined above, there is ample evidence in this record to sustain the conviction of DuBois. If, however, it be found as a fact that Stewart was an accomplice, it is clear that the conviction of DuBois must be reversed. Without the testimony of witnesses Austin and Stewart the record contains no evidence connecting DuBois with the killing of Mack Howell. The only evidence placing DuBois in the State of Arkansas at the time of Mack Howell’s killing comes from the testimony of Linda Austin and G. W. Stewart.
In Instruction No. 19 the trial #ourt, without objection, told the jury:
“You are instructed that one may not be convicted of a felony upon the uncorroborated testimony of an accomplice. You cannot, therefore, convict the defendant on the testimony of an accomplice unless you find such testimony is corroborated by other evidence in the case tending to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely shows that the crime was committed and the circumstances thereof, but you are instructed that the amount of such coiroborating evidence and its weight, is a matter solely for the jury. And, if you find that such accomplice has been corroborated by evidence, positive or circumstantial, other than the accomplice’s own testimony tending to show that the crime was committed and connecting the defendant with its commission, you will be justified in convicting the defendant provided you believe him guilty from all of the evidence in the case beyond a reasonable doubt.”
The court also defined an accomplice in another instruction.
This Court is unable to determine whether the finding of guilty by the jury was based upon a finding of fact that either or both Linda Austin and G. W. Stewart were not accomplices or whether it was based upon the finding of' fact that both were accomplices, but that there was sufficient corroborative evidence to sustain the conviction.
Upon a new trial we suggest that it would be appropriate for the trial court upon request to give the jury an instruction that would permit it to determine whether Stewart was an accomplice. See Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472, where such an instruction was requested but refused by the trial court.
REASONABLE DOUBT
Over objection, the trial court defined reasonable doubt in Instruction No. 23 as follows:
“The phrase ‘beyond a reasonable doubt’ should be explained to you, and it means that after a full and fair consideration of all the facts and circumstances proved in the case there naturally arises in your mind, either out of the evidence or by reason thereof, or on account of the lack of it, a substantial doubt of the defendant’s guilt, then that is what the law means by a reasonaable doubt. It is not an imaginary or far-fetched doubt to be conjured up in order to allow a guilty man to escape just punishment, but, as stated, it is a shield to protect the innocent from unjust conviction.
The best definition of a reasonable doubt is that it is a doubt that is reasonable and one upon which you yourself would be willing to act in any matter of highest concern to you with which you may come into contact in your everyday walks of life.”
We have no hard and fast rule as to language to be employed in defining reasonable doubt. This seems to be true in other jurisdictions. Examination of Words and Phrases, Volumn 36, Pages 495-502, discloses a great variety of phrasing that did not constitute error. In this opinion we do not intend to lay down a fixed rule for definition of the phrase “reasonable doubt.” Nevertheless, in Laird v. State, 251 Ark. 1074, 476 S.W. 2d 811 (1972), the following definition of reasonable doubt was approved:
“Reasonable doubt is not a mere possible doubt, or imaginary doubt, because everything relating to human affairs and depending upon mortal evidence is open to some possible or imaginary doubt; but it is such a doubt as arises from such a candid and impartial consideration of all the evidence in the case as would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life; and a juror is satisfied beyond doubt if from a candid consideration of all the evidence he has an abiding conviction of the truth of the charge.”
In the opinion in the Laird case this Court corrected what was an obvious typographical error in Dempsey v. State, 83 Ark. 81, 102 S.W. 704 (1907), where the letter “t” was dropped from the word “mortal.”
On a retrial of DuBois it would not be inappropriate for the trial court to instruct the jury in the language ap proved in the Laird case, but we made it abundantly clear that other appropriate language defining reasonable doubt would not be disapproved by this Court.
MOTION FOR DIRECTED VERDICT OF NOT GUILTY
The trial court overruled defendant’s motion, seasonably made, for a directed verdict of not guilty. Such a motion would have been proper only if: (1) both Linda Austin and G. W. Stewart were accomplices, and (2) there was insufficient other evidence to corroborate their testimony. An examination of the transcript indicates other evidence is available to the prosecution. At a new trial of the defendant, the deficiencies we find in this record may well be supplied. Under this record a remand is proper as was done in Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879, (1968).
OTHER POINTS URGED
Numerous other grounds for reversal are urged in the brief filed on behalf of DuBois. This Court has carefully examined all of these and we find them without merit. Comment upon each of the other points raised would add nothing to the judicial literature and would be a waste of judicial time. Indeed, a number of the points raised have been answered by this Court in O’Neal v. State, supra.
In view of the disposition we make of this case, the alleged prejudicial argument of the prosecuting attorney is not likely to recur.
Accordingly, the judgment is reversed and the case remanded for a new trial.
Fogleman, J. not participating.
Harris, C.J. and Jones, J. would affirm. | [
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Carleton Harris, Chief Justice.
Larry Edward Taylor, appellant herein, was'arrested at about 1:15 A.M. on November 23, 1972, at a cafe in Paragould for drinking in public. After the arrest, he was taken to the Paragould City Hall and given an alcohol breathalizer test which tested .11. This alcoholic content was not considered sufficient to justify a charge of public drunkenness, but, of course, drinking in public is an offense within itself. See Ark. Stat. Ann. § 48-943 (Repl. 1964), which provides .that:
“Any person who shall in any public place, or highway, or street, or in or upon any passenger coach, street car, or in or upon any vehicle commonly used for the transportation of passengers, or in or about any depot, platform waiting station or room, drink any intoxicating liquor *** shall be guilty of a misdemeanor***.”
After the taking of the test, Taylor was requested to remove the contents of his pockets, and this revealed an unusual amount of change ($34.85) as well as $34.00 in bills. According to Assistant Chief of Police Jack Rogers, it was unusual for one to be carrying that much change. “I figured it was probably business for the CID boys so I sent for him.” Rogers and another officer started with Taylor to the jail, but Taylor broke and ran, the officers pursuing. Finally, when Taylor fell, they caught him and took him back. The officer testified that before taking a prisoner to jail, personal belongings are taken, even including a belt, and an officer, running his thumbs around Taylor’s waistline felt paper inside. Taylor was directed to undo the front of his pants and when he did, money, a check, and an IOU fell out to the floor. There was $231.00 in money, a $5.00 check, and a $5.00 IOU. The check was made out to K & M Auto Machine Company, and the IOU (subsequently developed) had been placed in the cash register by Jim Prewitt, an eleven-year employee of K & M Auto Machine Company, as notice that he had taken $5.00 in cash. Later in the day, Paragould police learned that there had been a burglary and a theft of money from K 8c M Auto Machine Company. The next day, an Information was filed in the Greene County Circuit Court charging Taylor with burglary and grand larceny and on trial he was convicted on each count and sentenced to twenty-one years imprisonment in the Arkansas Department of Correction on each count, as an habitual criminal with four previous convictions. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. For reversal, it is first urged that the trial court erred in failing to suppress the evidence taken from appellant by the Paragould police officers since it was obtained without a search warrant having first been properly issued; further, that the court erred in failing to direct a verdict of acquittal, and finally that the court erred when it failed to give appellant’s requested Instruction No. 2. We proceed to discuss these points in the order listed.
As to the first point, we cannot agree with appellant’s contention. The initial arrest was entirely proper, one of the officers testifying that he observed a partially filled half-pint (whiskey) on appellant’s person, and that Taylor was carrying and drinking out of a Seven-Up bottle that very obviously contained something besides the soft drink. As previously stated, this was a misdemeanor, the offense being observed by the officers. An officer can legally make an arrest for a misdemeanor when the offense is committed in his presence. Johnson v. State, 100 Ark. 139, 139 S.W. 1117.
The direction by the officers to Taylor to empty his pockets at City Hall preparatory to jailing appellant for the offense committed, as well as the request to open his pants after the bulk of paper was felt within his clothing, were entirely proper. The requirement is certainly a valid precaution since Taylor could have possessed some item dangerous to the officers, fellow prisoners, or himself. It will also be recalled that Taylor had tried to run away after removing the change and bills from his person, a rather suspicious circumstance.
Nor can we agree that the court erred in failing to direct a verdict of acquittal. Evidence at the trial reflected that the K & M Auto Machine Company of Paragould had been burglarized on November 22, 1972; that $293.28 in cash, the $5.00 IOU previously mentioned, a check in the amount of $5.00 made payable to K & M Auto Machine Company, and other items had been taken. This testimony, together with the fact that Taylor had been in possession of the specific items mentioned, was sufficient to make a jury question. Taylor did not testify.
Finally, it is asserted that the court erred in not giving appellant’s requested Instruction No. 2. This instruction related to the defense of drunkenness. We agree with the trial court that the instruction was not justified under the evidence. No officer testified that Taylor was drunk or that his speech and coordination were impaired, nor did appellant, through any witness, offer any such defense.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
The officer identified whiskey by smelling the contents.
‘‘You are instructed that a person is ‘drunk’ when he is so far under the influence of liquor that his passions are visibly excited or his judgment impaired, or when his brain is so far affected by potations of liquor that his intelligence, sense-perceptions, judgment, continuity of thought, or of ideas, speech, and coordination of volition with muscular action (or some of these facilities or processes) are impaired or not under normal control. That if you find that the Defendant did the acts alleged by the State of Arkansas, and if you find that the Defendant was so under the influence of liquors, then you will mitigate the punishment for his acts because of his drunkenness in accordance with the degree of drunkenness at the time.” | [
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] |
Carleton Harris, Chief Justice.
This case involves the obtaining of title to personal property by adverse possession, and apparently is the first reported case relating to such a situation for over one hundred years. The contentions of the parties are as follows:
On January 24th, 1928, First National Bank of DeWitt, Arkansas, issued to J. M Henderson, Jr. its Common Stock Certificate No. 186 for 20 shares.
J. M. Henderson, Jr. brought this action in the Circuit Court for the Southern District of Arkansas County, Arkansas, seeking recovery of possession of Certificates 186 and 198 from Miss Hattie Boone Black, and recovery of 160 shares of dividend stock and $8,250.00 in accumulated money dividends from First National Bank of DeWitt. Hattie Boone Black answered with a general denial, and pleaded the statute of limitations, and later laches and estoppel as a defense, also moving to transfer to equity. Henderson replied, inter alia, pleading counter-estoppel, and joined appellee Black in her motion to transfer. First National Bank of DeWitt has taken a neutral position. This cause was transferred to equity.
During the course of the litigation, J. M. Henderson, Jr. died and the cause was revived in the name of his Administrator, John M. Henderson, III, the appellant.
The dispute centers around Henderson’s original acquisition of Certificates 186 and 198, whether Henderson and L. A. Black (father of appellant Hattie Boone Black) had a property settlement in the fall of 1945 out of which Henderson was to take the. certificates free of debt after having pledged them to L. A. Black, whether certain correspondence and transactions which occurred in 1950 and 1951 would start the running of the three year statute of limitations against Henderson, and whether certain acts and omissions on the part of the appellant, Hattie Boone Black,^and her mother, Mary B. Black, would be sufficient to bar Miss Black from pleading the statute of limitations, laches and estoppel as a defense. Appellant, without conceding that he was barred by limitations from recovering possession of Certificates 186 and 198, also contended that as to the dividend stock and money dividends issued to John M. Henderson, Jr. and held by First National Bank, Miss Black could not in any event claim the bar of limitations, laches and estoppel, having never been in possession of these certificates and monies.
A number of witnesses testified and the record is rather large; at the conclusion of the testimony, and after the submission of briefs, the court rendered a comprehensive written opinion discussing the contentions of the parties and we will quote freely from that opinion in setting out the facts and law relied upon by the court in rendering its decision. The opinion commenced as follows:
“There are certain relevant facts that are not in dispute. It is undisputed that in January, 1928, Henderson was issued twenty shares of stock in Bank represented by certificate number 186 and in January, 1954, he was issued twenty more shares in Bank represented by certificate number 198. This was done at the instigation of Black, the then president and principal stockholder.
“The certificates were endorsed by Henderson in blank and, even though Henderson testified that they were placed in the stock book, they apparently did not remain there for very long because Lawrence Dearing, president of Bank, testified that he had been associated with Bank for many years and he could not recall ever seeing the certificates in the stock book. The evidence would sustain a finding that Black and then his widow and then his daughter, the Defendant herein, have had the physical possession of the two stock certificates for most of the time subsequent to the date when Henderson endorsed them in blank.
“It is also undisputed thát additional shares have been issued as stock dividends on the stock certificates in dispute in addition to cash dividends of $8,250.00. These stock and cash dividends have been held by the Bank since 1951, and the Bank, in this case, simply seeks instructions as to which party is the owner and entitled thereto.
“For the sake of clarity, the Court will discuss the principal issue under three topic headings in question form, i.e., (I) Did Henderson originally contract to purchase the forty shares represented by cer tificate numbers 186 and 198? (II) Did Henderson receive these shares in a settlement with Black or otherwise pay the agreed price for them? (Ill) Is Henderson’s personal representative now barred from recovering these certificates and dividends by the statute of limitations, laches or estoppel?
“These topic headings will be discussed in the order listed.”
Proof on the part of appellee was directed to the fact that L. A. Black simply made the transfers of stock as a book transfer to enable Henderson to continue serving on the board of directors of the bank, but the court rejected this contention, stating that a finding to that effect would mean that the court was placing “the stamp of charlatan upon two men who lived most of their lives in Arkansas County and commanded the very highest respect from their fellow citizens”; that if this were only a “book transfer”, the two men would have been violating the National Banking Act which requires that a director of a bank be “the owner in good faith, and in his own right, of the number of shares of stock required by this chapter. . .”. The court stated:
“In the absence of more proof than is now in the record, this Court must reject any suggestion or implication that Black and Henderson descended to the status of a knave and engaged in chicanery solely for the purpose of retaining Henderson on the Board of the Bank. To the contrary, the evidence is rather clear that Black arranged for Henderson to acquire additional stock in 1928 and again in 1934 in order that Henderson would ‘own in his own right’ the minimum required by law. ***
“The Court finds that Henderson, in good faith, became the beneficial as well as the legal owner of the forty shares purchased in 1928 and 1934. The evidence further reflects that Henderson did not pay Black in cash at the time of acquisition, but the parties agreed that Black could receive the dividends, if any, from the stock until Henderson paid for them.”
The court held that parol evidence was admissible to explain the circumstances surrounding Henderson’s blank endorsement of Certificates 186 and 198, and then stated:
“(II) Did Henderson receive these shares in a settlement with Black or otherwise pay the agreed price for them? According to Henderson’s testimony taken by deposition, he and Black had done business together for many years and in October, 1945, just two months before Black died, they had a complete settlement of their affairs. In this settlement, according to Henderson, he (Henderson) was to receive free and clear of any claim or encumbrance of Black stock certificate numhers 186 and 198.” ***
“The Defendant introduced into the record certain ledger sheets reflecting certain transactions between Black and Henderson. If the Court accepted these ledger entries as containing the complete business affairs and transactions between Black and Henderson, then a holding would have to be made for Defendant in this case. Defendant Black’s Exhibit No. 11 reflects five entries for 1945, the first entry reading: ‘Jan. 1 — To Balance — $3970.44.’ The other debit en- . tries are: March 16 — Hardware—$1.40; Dec. 24— to check — $1500.00; and Dec. 31 — to hardware— $12.39. Only one credit entry appears and that was on Dec. 24 — ‘By Exp. — Atty Fee 8c Abstracting,’— $2000.00. The balance owed Black from Henderson at the end of the year, according to this ledger sheet, was $3484.23.
“The important question is: Did Henderson and Black have business transactions and dealings that never found their way to ledger sheets and other business records? If Henderson is to be believed, they did. Even though Henderson’s testimony at times is a bit indefinite on details — and this is understandable since he was approaching ninety years of age when he gave his deposition — his overall testimony has a ring of truth about it. Henderson’s testimony relating to the business dealings between himself and Black have not been disputed, with the exception of the disputed stock certificates. Henderson testified that he and Black acquired a printing company in the late 1920s or early 1930s and that both put up $1500.00 in cash each. Among the assets of this printing business was some real property. According to Henderson, Black received this real property and the other assets of the printing company and he (Henderson) was to get the Bank stock free and clear of any claim by Black. Henderson’s testimony implies that Black desired to remain a silent partner or owner in this printing business.
“The decisive evidence as to whether Henderson acquired the disputed Bank stock free and clear of any indebtedness to Black is found in the manner in which the interested parties dealt with and treated certificate numbers 186 and 198 following Black’s death in late December, 1945.”
The court then listed several facts that it considered vital in determining ownership of the stock. First, it was pointed out that the disputed shares of stock were not listed in the estate tax return filed in the estate of L. A. Black. Second, the court mentioned that the disputed shares were not listed in the estate tax return of Mrs. Mary B. Black, wife of L. A. Black. Third, quoting the court, “There is some evidence that the disputed shares of stock were not listed.in the inventory of the estates of either L. A. Black or Mary B. Black.” Fourth, Henderson paid federal income tax on certain dividends from the stock represented by Certificates 186 and 198, or from stock that in itself was originally a dividend from those two certificates. Fifth, Henderson had remained on the board of directors until his death, and would not have been eligible to serve in the absence of his ownership of the disputed stock certificates, and finally, Henderson exercised the rights of ownership by voting the disputed shares of stock at stockholders’ meetings throughout the years.
The court then went into the question of whether Henderson’s personal representative was barred from recovering the disputed shares because of the statute of limitation, laches and estoppel. After a discussion of ad verse possession and the statute of limitations, the court stated:
“The rul'e involving the inseparable connection between the statute of limitations and the principle of adverse possession is well stated in 54 C.J.S., Limitations of Actions, Sec. 119: 'In suits to recover personal property, the statute of limitations and the principle of adverse possession are inseparably connected, on the theory that the statute does not begin to run until the possession becomes adverse, and a limitations statute relating to suits to recover personalty is affected by the doctripe of adverse possession by defendant.’
“The Court holds that the Arkansas law is that not only the remedy has been cut off where there has been an adverse holder of chattels, but the title has been lost also.
“The general rule is that ownership of a chattel may be lost or acquired through adverse possession. See 2 C.J.S., Adverse Possession, Sec. 236 and 1 Am. Jur., Adverse Possession, Sec. 96. *** Also, the general rule is that on the expiration of the limitation period, the disseisor becomes possessed of a vested right or title, and that title relates back to the inception of his possession. See 1 Am. Jur., Adverse Possession, Sec. 13.”
The court also quoted 2 C.J.S., Adverse Possession, Section 203, to the effect that on the expiration of the limitation period, the holder by adverse possession becomes possessed of a vested right or title relating back to the inception of his possession. Further, from the opinion:
“The decisive question of this case is: Has the statute of limitations run, thus effectively barring Plaintiff’s cause of action? Another way to state the proposition is: Has the Defendant and her predecessors in title acquired the disputed stock certificates and/or dividends by adverse possession?
“The Plaintiff’s action was originally filed as a replevin suit in the Circuit Court of Arkansas County. It was subsequently transferred to Chancery Court. The pertinent limitations statute applicable here is Ark. Stats. 37-206 and under this section ‘all actions for taking or injuring any goods or chattels’ must be brought within three years after the cause of action has accrued. ***
“In order for the statute of limitations to begin to run in this case, it was necessary that Henderson make a demand for delivery to him of the certificates and that this demand be refused or that Henderson be put on actual notice that the Blacks’ holding was adverse and hostile to the claim of Henderson-
“Since the Court has held that Henderson received the disputed stock certificates in the settlement with Black in October, 1945, the fact that the physical possession of the certificates was in Black or his personal representative or the Defendant would not, in itself, deprive Henderson of his title.
“The parties introduced certain correspondence from Henderson and Mrs. Mary B. Black to the Bank, and correspondence from the Bank to Henderson and Mrs. Black. There are four letters from Henderson to the Bank and one letter from Mrs. Black to the Bank. Until October 16, 1969, Henderson never demanded of either the Defendant, her mother or the Bank a return or delivery to him of the stock certificates or cash dividends in possession of the Blacks or the Bank. On that date, he wrote to the Bank formally demanding delivery to him of all stock and cash dividends held by the Bank. The Bank responded that it would not be able to meet Henderson’s request ‘except on a judgment of a court of competent jurisdiction.’ Henderson filed suit the following month.
“On January 5, 1951, Mrs. Mary B. Black, writing as the executrix of the estate of L. A. Black, addressed a letter to the Bank in which she stated: ‘I hand you herewith for transfer and re-issue to me Stock Certificates Nos. 186 and 198, each for twenty shares of stock of The First National Bank of DeWitt.’ Mrs. Black requested the Bank to transfer these shares to her and to issue new certificates therefor. The Bank, under the same date, advised Mrs. Black that it was ‘returning herewith the Stock Certificates pending settlement of the ownership of the Stock in the Bank between you as Executrix of the Estate of L. A. Black, and J. M. Henderson, Jr.’
“In the letter from C. P. Chaney, President of the Bank, dated January 5, 1951, to Mrs. Mary B. Black, the following statement is found: ‘I have talked with Mr. Henderson and he asks that the transfer on the Bank’s records be not made at this time. For this reason I am returning herewith the Stock Certificates pending settlement of the ownership of the Stock in the Bank between you as Executrix of the Estate of L. A. Black, and J. M. Henderson, Jr.’
“Henderson, in his deposition, testified that sometime prior to August 29, 1950, one Charlie Ruffin told him that ‘they (meaning the Blacks) bad the stock, that’s how I got it.’ He further testified that the letter of August 29, 1950, was written shortly after Charlie Ruffin gave him that notice. Henderson testified further that ‘he (Ruffin) told me that they had found them (disputed stock certificates nos. 186 and 198) the day before in the bottom of Black’s desk, that what he told me.’ He further testified that Ruffin told him, ‘They are going to give you trouble about those certificates’ and he asked me if I sold my certificates and said they were going to give me trouble about them and I wrote that letter to the bank.’ Henderson further testified that in 1951 one Clay Shilling, field manager for the Black estate at that time, presented the disputed certificates to the Bank’s Board of Directors ‘for the purpose of having stock certificates issued, the Bank had notified the stockholders that the stock certificates were going to be issued.’ He testified that he was present when Shilling presented the certificates to the Board to be reissued and that he (Henderson) said to Shilling at that time, ‘Those are my stocks,’ and he (Shilling) said, ‘Well, I don’t know anything about it, she sent me down here with them.’ Henderson testified further that since 1951 the stock and cash dividends have been held by the Bank because both he and Mrs. Black had given notice (of their respective claims) to the Bank. Then at the bottom of page 47 and the top of page 48 of his deposition, this question and answer appears:
‘Q. In other words since 1951 Mrs. Black was claiming ownership of the stock, is that correct sir?
‘A. That’s what I understand.’
“By Henderson’s own testimony, he knew as early as August, 1950 that Mrs. Mary B. Black had actual possession of the certificates of stock that he (Henderson) received in the settlement with Black and that she was claiming to own the certificates. He also knew that she was attempting to have the stock reissued by the Bank in her name. At that time, he was placed on notice that her possession was not a continuation of the original lawful possession but was hostile and adverse to his claim to the certificates. ***
“The Court holds that the Defendant and her predecessor in title have acquired the title to certificate numbers 186 and 198 by adverse possession and that Plaintiff’s cause of action is barred in that his cause of action accrued in January, 1951, when Henderson was put on actual notice that Mrs. Mary B. Black was holding the certificates and claiming them as her own. ***
“Which party is entitled to the stock and cash dividends which have been held by Bank since early 1951? The Plaintiff contends that he has had constructive possession of some of these dividends and, therefore, is entitled to a portion of them. The Court cannot agree. As stated in Bir mingham Securities Co. v. Southern University, 55 So. 240, 173 Ala. 116, according to Words & Phrases: ‘ “Constructive possession” follows the legal title, the rightful owner being deemed in possession until he is ousted and disseised. Possession follows the title, in the absence of actual possession adverse to it.’ As will be pointed out herein, the legal title to the original certificates from which the dividends were derived has been in the Defendant at all times that are material here.
“The record in this case reflects that the first stock dividend on certificate numbers 186 and 198 was sixty shares issued on January 31, 1951. The next stock dividend was for sixty shares issued on March 19, 1959 and the last stock dividend was for forty shares issued January 21, 1966. The first cash dividend was for $200.00 and this was paid December 31, 1951. There were other cash dividends up to and including a $500.00 cash dividend paid December 31, 1971. The Court attaches as an addendum to this opinion a list of all cash and stock dividends giving the amounts, number and dates.
“Since these dividends are all derivative of the forty shares represented by certificate numbers 186 and 198, their ownership will follow the ownership to numbers 186 and 198.
“Sixty shares of the dividend stock represented by certificate number 25 were issued at a time when title to the stock from which the sixty were derived was in Henderson. Also, some of the cash dividends were paid before the statute of limitations had run. However, as the authorities cited herein state, the title of the Defendant to the original certificates relates back to the beginning of her possession that was hostile and adverse to the possession and title of Henderson. This would be at a time prior to the issuance of any stock or cash dividends. Since this ‘relation back’ theory has the same effect as if Henderson had actually assigned all of his interest in the certificates to Mrs. Mary B. Black in January, 1951, the dividends declared during the time and prior to the expiration of the running of the statute of limitations would also follow the title to the certificate numbers 186 and 198. The dividends declared after the statute of limitations had run would clearly, of course, be the property of Defendant.
“The Court holds that the Defendant is the owner of the cash and stock dividends being held by the Bank.”
From the decree entered in accordance with this opinion, appellant brings this appeal. For reversal, five points are asserted but all really relate to two points as follows:
I
“The Court erred in finding plaintiff’s right of recovery and plaintiff’s title to all of the bank stock and stock dividends involved in this action has been lost by the plaintiff as a consequence of the running of the three statute of limitations (Section 37-206 Ark. Stats.).”
II
“The Court erred in failing to find from the evidence that the defendant, and her predecessor Mary B. Black, were guilty of such inaction, and delay on their part in asserting their claim of ownership and the right to possession of the stock in litigation as would in equity bar and estop defendant from pleading the statute of limitations, laches and estoppel as defenses to plaintiff’s right of recovery of:
(1) Stock Certificates Nos. 186 and 198; and
(2) The dividend stock and money dividends which have remained in the possession of First National Bank of DeWitt.”
These points, of course, are really linked together and will be discussed together.
I
There is no dispute but that title to personal property can be acquired by adverse possession, nor is it disputed that the applicable statute of limitations is three years, i.e., adverse possession for more than that period of time would vest title in the adverse possessor. Only one Arkansas case on this point, involving a slave, was cited by the parties, but our research has resulted in revealing four cases relating to this question. All of these cases occurred prior to the Civil War and three of them also involved the ownership of slaves. The other case, Hicks v. Fluit, 21 Ark. 463 (1860), involved adverse possession of a horse and this court held that three years adverse possession “not only takes away the remedy from the original owner, but vests possessor with the absolute property”. Some of the arguments made by appellant can be bypassed for it is certain from the record that J. M. Henderson, Jr. had knowledge that Mrs. Mary B. Black, widow and executrix of the estate of L. A. Black, was claiming the stock certificates as property of the estate as early as January, 1951. Actually, it would appear that he had knowledge some time prior to August 29, 1950, since he testified that one of the Black employees (Ruffin) advised him that Certificates 186 and 198 had been found in Black’s desk and Henderson was told “They are going to give you trouble about those certificates.” This evidence, unless there were other circumstances that prevented the running of the statute, certainly upholds the chancellor’s finding that Henderson’s cause of action was barred since he was put on actual notice that Mrs. Black was holding the certificates and claiming them. Appellant’s argument is directed to the fact that because of the conduct of Mary Black and her daughter, Hattie Boone Black, appellee is estopped to raise the defense of the statute of limitations. The circumstances relied upon are that, though advised by the bank that it would not transfer the stock because Henderson objected, neither Mrs. Black, nor Hattie Boone, took any steps against Henderson; further, that Henderson voted the stock during all the years preceding the filing of the lawsuit with the knowledge of the Blacks.
We see no great significance in this last mentioned. Hattie Boone testified that she had been a stockholder in the First National Bank since the death of her father, but that she had never attended a stockholders’ meeting and that neither she nor her mother had any objection to Mr. Henderson serving on the board of directors. “He was on there when Daddy was living. She was glad for him to be on there in her lifetime and I was, too. . . . He had been on there all those years and we were happy for him to serve and didn’t want to cause any disturbance.” Of course, during the entire time, the contested stock, endorsed in blank, was in the possession of the Blacks, and if they were not interested in voting the stock themselves, there was no reason to complain. Certainly, Mr. Henderson was not lulled into the belief that the Blacks were not claiming the stock simply because no objection was raised to his voting the stock, for the bank during this period of time, was withholding the stock dividends and cash dividends because of the claim of the Blacks, and Henderson was certainly also aware that the original stock certificates were in the possession of appellee under a claim of ownership.
We do not agree that the fact that no legal action was instituted against Henderson by Mrs. Mary Black, or appellee, for the eighteen year period (between 1951 and 1969) estops appellee from claiming the defense of the statute of limitations. In the first place, let it be borne in mind that the period of time that is actually pertinent is that period from January 1, 1951 to January 1, 1954 and the record does not reveal very much, other than what has already been mentioned about the actions of the parties (relative to the stocks) during that time. Appellant’s argument is largely devoted to the acts of the parties during the full eighteen year period (1951 to 1969). The Blacks had the stock in their possession, not only the stock itself, but it bore the endorsement in blank of Henderson. What action could they have taken against Henderson? Of course, had he been holding the stock with them also claiming it, it would have been necessary to institute suit. But under the circumstances, there was nothing to be gained by suing Henderson, and really nothing to sue him about. The only party that was withholding anything from the Blacks was the bank, and the bank has not pleaded delay; in fact, as previously stated, the bank is merely sitting in the middle awaiting the outcome of
litigation between Henderson and appellee. On the other hand, Henderson was in dire need of the stock certificates before he could pursue his quest for monetary benefits. According to the finding of the court, Henderson, after the settlement in 1945, was the owner of the certificates, and it was his duty to seek possession of his property. There is a discussion of estoppel in American Casualty Company v. Hambleton, 233 Ark. 942, 349 S.W. 2d 664. There, we said:
“Elements of ‘estoppel’ arising from nondisclosure are ignorance of party claiming estoppel, silence of other party where there is duty to speak amounting to misrepresentation or concealment of material fact, action by party relying on the misrepresentation or concealment, and damages resulting if estoppel be denied. Nelson v. Chicago Mill & Lumber Corporation, 76 F. 2d 17 (C.C.A., Ark. 1935)
“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights of property, contract or remedy, which might otherwise have existed, as against another person who has in good faith relied thereon and been led to change his position for the worse. Geren v. Caldarera, 99 Ark. 260, 138 S.W. 335 (1911).
“A party who, by his acts, declarations or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for such misleading influence, will not be allowed, because of estoppel, afterwards to assert his right to the detriment of person so misled. Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S.W. 2d 620; Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443.”
Is Miss Black estopped under the rules of law just set out? We think not. Henderson was not ignorant of the fact that the certificates were held and claimed by the Blacks. Mrs. Mary Black had made it clear that claim was being made, and Henderson, by his own admission, was aware of this fact from several different sources. According to Henderson’s own evidence, nothing was said by either Mrs. or Miss Black amounting to a misrepresentation , nor did they seek to conceal the fact that they had the stock. Having made it clear that they were claiming the certificates as their own, there was no further duty to say anything else. Yet, Henderson though contending ownership of- the stock, and even paying tax on dividends which he had not received, sat for eighteen years before instituting suit to regain the certificates and this despite the fact that he was an attorney, and had also received a suggestion that suit be instituted. Accordingly, we find that the conduct of the Blacks did not induce or mislead him into inaction, nor did Henderson so contend in his testimony.
II
Here, admittedly by appellant, “new ground” is being plowed. No cases are cited by appellant in his brief, and counsel, during oral argument, candidly and frankly conceded that no cases had been found to support appellant’s view.
It might be here stated that there is no contention if appellee was not estopped to claim the statute of limitations, and thus acquired title by adverse possession, but that such title relates back to the commencement of the running of the statute. The argument that appellee has not acquired the dividend stocks and cash dividends is simply based on the contention that the Blacks never, at any time, had possession of the dividend stock or cash dividends, and accordingly could not have acquired adverse possession of those items. While no cases are cited by either appellant or appellee involving the exact issue here present, i.e., the title to derivative stock and cash dividends, we think logic compels the view that title to this stock vests in that person who owns the original stock, unless there is an agreement to the contrary. This is certainly the law as far as the ownership of animals is concerned, i.e., the owner of the cow owns her calf. West v. Ankey, 134 N.E. 2d 185 (Ohio), and John Deere Plow Co. v. Gooch, 91 S.W. 2d 149 (Mo.). Analogous is the law that one who acquires title to land by adverse possession is entitled to all accretions to said land. Bellefontaine Imp. Co., et al v. Neidringhaus, et al, 55 N.E. 184 (Ill.). Were the court to hold with appellant in this contention, such holding might well result in extending ad infinitum the tolling of the statute. As pointed out by appellee, where a person’s stock had been converted, no matter how many years previously, that person would have a continuing cause of action each time that a cash or stock dividend was declared on the stock. The trial court correctly held that, since the title obtained by adverse possession by appellee related back to the beginning of her hostile possession, and since this occurred before any of the stock or cash dividends here at issue were payable, such dividends belong to appellee.
Inasmuch as we agree with the chancellor in his findings relative to adverse possession, there is no need to discuss the question of whether the court erred in holding that Henderson had met the burden of proving his claim of ownership of the original shares, though this question is forcefully and persuasively argued by appellee.
On the whole case, we find no reversible error.
Affirmed.
For brevity, the court used the term "Henderson” referring to J. M. Henderson, Jr.; “Bank” referring to the First National Bank of DeWitt; the term "Defendant” referring to Hattie Boone Black; and "Black” referring to L. A. Black.
According to Henderson, the forty shares were assigned to him out of stock belonging to Black for the sum of $2,000, said sum of money being in the nature of a loan; the endorsement in blank by Henderson was for the purpose of securing to Black the advance for the stock purchase.
The record reflects the following question and answer during direct examination of Henderson.
"Q Now at any tíme since 1945 have you had any communications either verbal or written with Miss Hattie Boone Black with respect to this stock?
A Not a word.”
He had previously stated that he had not talked with Mrs. Black with regard to the stock.
From the. record:
“Q At any time since 1945 have you had any communication either verbal or written with respect to this stock with Mrs. Georgea Black McKinley?
A No. She talked to me about it some and insisted that I file suit and get it straightened out.”
In 3 Am. Jur. 2d, § 242, page 342, we find:
“It is a general theory underlying adverse possession that once the title is matured it relates back to the beginning of the adverse holding; and under such theory it is presumed that the origin of the title was rightful, not wrongful, that the possession which has’ matured it was in support, not in derogation of the rightful title, and that he who by a possession perfect in the law has matured a title has in theory of law been the pwner of the title from the beginning.” | [
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George Rose Smith, Justice.
This is a petition for postconviction relief under Criminal Procedure Rule 1. The petitioner, charged with first degree rape (then a capital offense), entered a negotiated plea of guilty to second degree rape and was sentenced to confinement for 21 years. He now asserts that his plea of guilty was motivated by fear, in that his court-appointed counsel told him that if he resisted the charge of first degree rape he would probably receive the death sentence. The trial judge denied the petition without an evidentiary hearing, holding, under Rule 1 (C), that the record made when Stone pleaded guilty showed conclusively that his plea was voluntary. The principal issue here is whether a hearing should have been ordered.
Stone was accompanied by his counsel when he pleaded guilty to second degree rape. The trial judge, before accepting the plea, questioned Stone in detail. Stone assured the court that his plea was voluntary, that there had been no duress, threat, enticement, or promise of reward, that he had discussed the matter with his two court-appointed attorneys and was satisfied with their services, that he knew that he was waiving his right to a jury trial, and that he understood the terms of the negotiated plea.
We quote the allegations of Stone’s petition, with respect to the point now at issue:
“That the court-appointed counsel, Winston Byron Thomason, was incompetent in as he refused to ask the Court for á change of venue. Counsel further stated that if he fought the case, he, the Defendant, would probably end up with the electric chair. That the only choice he the defendant had, was to take a twenty-one (21) year sentence. After several conferences between my court-appointed counsel and the Prosecuting Attorney, portions of which were relayed to me by my court-appointed attorney in behalf of the Prosecuting Attorney, I was placed in such fear as to be [un]able to adequately confer and consult with my court-appointed attorney, due to the undue pressure brought to bear upon me by the Prosecuting Attorney and counsel.”
We have considered similar situations in earlier cases, but none of our prior opinions is so directly in point as to be controlling. In Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95 (1972), we directed that an evidentiary hearing be held, but the record made when the plea of guilty was accepted in that case was not as comprehensive as it is in the case at bar. In fact, we stated that the record would have been much clearer if the trial judge had inquired of the accused if he was satisfied with the services of his attorney. That inquiry was made here. In a later case, Stallins v. State, 254 Ark. 187, 491 S.W. 2d 788 (1973), we sustained the trial court’s refusal to order an evidentiary hearing, saying: “Before accepting the plea and sentencing appellant to twenty years in the Department of Corrections, the trial court not only satisfied himself that appellant was voluntarily pleading guilty to a crime he had committed but caused a record to be made of the proceedings had. This record clearly demonstrates that there is no merit to the many contentions that appellant now makes.”
The pivotal question in the present case is whether the allegations in Stone’s petition, which we have quoted, contain sufficient statements of fact to raise substantial doubt about the voluntary nature of his plea, in view of the record that was made when the plea was entered. In studying that question we have been enlightened by two recent decisions construing the federal statute, which, like our Rule 1, contemplates the denial of a postconviction petition when the record shows conclusively that the prisoner is entitled to no relief., 28 U.S.C. § 2255.
In Fontaine v. United States, 411 U.S. 213 (1973), the petition contained detailed statements of fact describing events pertinent to the petitioner’s waiver of counsel and plea of guilty. It was asserted that the petitioner had been ill from a recent gunshot wound that required hospitalization, that he had been physically abused and subjected to prolonged interrogation (the precise allegations not being set forth in the court’s opinion), and that following the plea petitioner was again hospitalized for heroin addiction, for aggravation of the. gunshot wound, and for other severe illnesses. The court concluded that the record did not conclusively show thal. the petitioner was entitled to no relief.
On the other hand, in United States v. Journey, 474 F. 2d 1003 (8 Cir. 1973), a petition asserting that a plea of guilty had been involuntary was denied because the petition “was too vague and was stated in conclusory terms.” From the opinion:
“Many extrinsic circumstances may serve as motivation for a defendant to enter a plea of guilty and forego a jury trial. However, where the record demonstrates that a factual basis exists for the plea, that at the time of the guilty plea the defendant admitted that it was voluntarily and freely given without promises, and that Federal Rule of Criminar Procedure 11 was given full compliance, the petitioner then faces an uphill climb to overcome the consequences of the plea. As we observed in Langdeau v. South Dakota, 446 F. 2d 507, 509 (8 Cir. 1971):
“ ‘Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision.’ ”
Here, as in Journey, the petitioner’s allegations are vague and conclusory. It is charged that counsel refused to ask for a change of venue, but no basis in fact for such a request is even hinted at. It is asserted that counsel stated that if Stone fought the case he would probably end up in the electric chair, but no fact is set forth to indicate even remotely that counsel’s advice was in any way inaccurate or contrary to the accused’s best interest. Pleas of guilty — especially negotiated ones — are designed to avoid the necessity of a trial, with advantages both to the State and to the defendant. It is essential that such pleas have some measure of stability. If the allegations in the case at bar are sufficient to require an evidentiary hearing, in the face of the record made when the plea was entered, then it is evident that every plea of guilty, without exception, is subject to re-examination at the whim of the prisoner. The trial court was right in refusing to order a hearing.
Stone’s petition contains other allegations, including assertions that at the time of his arrest he was not informed of his right to counsel, that he was arrested without a warrant, that he was confined for fourteen days before being taken before a magistrate or judge, and that no bond hearing was held. Those various allegations have nothing to do with Stone’s guilt or innocence. It is not asserted that the matters complained of were factors in Stone’s decision to plead guilty. Such possible defenses were waived by the plea of guilty. Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543 (1972).
Affirmed. | [
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George Rose Smith, Justice.
This action arises out of a traffic collision on Interstate 40, near North Little Rock. In the court below the appellee, as plaintiff, obtained a $1,000 verdict and judgment for her property damage. For reversal the defendant argues two asserted errors in the admission of evidence.
Just before the collision the parties were both traveling east on a divided four-lane highway. The plaintiff testified that she was in the north lane and was overtaking a line of vehicles moving more slowly in the south lane. She said that the defendant, without giving any signal, suddenly pulled out in front of her, from the south lane. The plaintiff at once applied her brakes, but she was unable to avoid hitting the defendant’s car as he attempted to return to the south lane.
State Police Officer Gravett, as a witness for the plaintiff, was asked if he attempted to determine in which lane the accident occurred. His answer was: “Yes, sir. I usually go by skid marks, debris, and what the drivers testify, and at the time the best I remember both agreed about where it happened was approximately five feet north of the center line.” Later on the officer said that the debris on the highway was “[i]n the vicinity of how I stated the point of impact [ajwhile ago. It was in the north lane eastbound.”
The defendant, citing S and S Constr. Co. v. Stacks, 241 Ark. 1096, 411 S.W. 2d 508 (1967), argues that the trial court erred in allowing the officer to express his opinion about the place of impact, the facts being so simple as to be within the jury’s comprehension. Here, however, Officer Gravett did not express an opinion. He said, in effect, that the versions of both parties agreed that the collision occurred approximately five feet north of the center line. The defendant’s statement was competent evidence against him, as an admission. Sherman v. Mountain Poultry Co., 243 Ark. 301, 419 S.W. 2d 619 (1967). Since the officer’s testimony was admissible in part, the objection to the whole statement was properly overruled. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S.W. 681 (1927).
It is also argued that the plaintiff should not have been allowed to state the value of her car before and after the collision, without a prior showing of expert knowledge on her part. The answer to that argument is that the plaintiff, as the owner of the car, was qualified to give her opinion of its value. Phillips v. Graves, 219 Ark. 806, 245 S.W. 2d 394 (1952). If the defendant thought that the plaintiff had no reasonable basis for her opinion, that fact should have been shown by cross-examination, as a foundation for a motion to strike the testimony. Ark. State Highway Commn. v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511 (1969). No such showing having been attempted, the testimony was admissible.
Affirmed. | [
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Conley Byrd, Justice.
This matter was before us, see Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972), wherein we reversed a life sentence conviction for error in the admissibility of a confession. On remand, appellant Jesse Shelton was again convicted of rape but this time his punishment was fixed at 30 years imprisonment. For reversal he contends:
“1. That the court erred in its refusal to quash the jury panel for the reason that the names of the persons on the jury list were disclosed in violation of Ark. Stat. Ann. § 39-201 (Supp. 1971);
2. The court erred in refusing to quash the jury panel for the reason that 96 names were drawn from the jury wheel for reasons other than to serve members of the petit jury;
3. The court erred in refusing to allow the withdrawal of James K. Young, Court appointed attorney for defendant, for the reason that there was a conflict of interest in this matter;
4. The court erred in refusing to grant a continuance for the reason that William Bud Campbell, an eye witness to the alleged offence, was not present, and
5. That there was not sufficient evidence presented to the jury to allow them to find appellant guilty.”
The record shows that Jesse Shelton, Clinton Holt, Joe Hilderbrand and Howard Vanderpool were jointly charged in the rape of the prosecutrix. The particular allegation as to Joe Hilderbrand being:
“That the said Joe Hilderbrand brought himself and the other defendants in the car owned by Joe Hilderbrand to the scene of the rape and stood by, aided and abetted in said rape.”
The prosecutrix testified that she and her date, Bud Campbell, had parked at the scene of the rape in a pickup truck. While they were listening to the radio and talking, a man came up and said, “alright, Buddy, open the door.” The assailant had another man watch Bud while he made her lay on the ground and raped her. When she first reported the matter to the officers, she described her assailant as bald, gray, and fifty years old. At the trial she positively identified Shelton as her assailant even though he was neither bald, gray, nor fifty.
Joe Hilderbrand testified that he took Shelton and Clinton Holt to Newton County to buy some beer. On the way back, he had a flat. Shelton, Clinton Holt and the other boy walked off while he fixed the flat. They came back about the time he got the flat fixed.
Before the commencement of the trial, Shelton’s court appointed Counsel, in an effort to withdraw as counsel, caused the following record to be made:
“MR. YOUNG:
I renew my motion I made at the first of the trial, that the State has subpoenaed Joe Hilderbrand, and I have always represented Mr. Hilderbrand, and I am now, with Mr. Williams, court-appointed in another matter. I have information from Joe I received in a confidential source; and I made this known to the Court prior to this first trial; and I again request that I be allowed to withdraw and the Court appoint additional counsel.
MR. STREETT:
The case Mr. Young referred to that he is associated in, the facts have no connection with the facts in this case, and the State feels there would be no conflict.
MR. YOUNG:
Of course, Mr. Streett has a short memory. The case I am referring to is the State of Arkansas vs Clinton Holt, Jessie Shelton, Joe Hilderbrand, and Harold Vanderpool. The prosecution has thrown out Hilderbrand in this case, for which I am happy, but I have information obtained in a confidential manner, and I would not be free on cross examination of Mr. Hilderbrand if he is called to testify.
THE COURT:
Mr. Williams could cross examine.
MR. YOUNG:
He is not in this case.
THE COURT:
I don’t believe that is such a conflict of interest that would jeopardize this defendant’s rights.
MR. YOUNG:
You have me muzzled, Judge.
Communications between attorney and client are privileged under the laws of Arkansas, Ark. Stat. Ann. § 28-601 (Repl. 1962). All textbooks on the subject of attorney and client point out that an attorney must faithfully, honestly and consistently represent the interests of his client and that he may not divulge to others confidential communications, information and secrets imparted to him by his client during their professional relation. See 7 Am. Jur 2d, Attorneys at Law § 93 and 7 C.J.S., Attorney and Client § 125. See also the Annotation in 34 A.L.R. 3d 470. Most of the authorities take the position that doubts as to effectiveness of respresentation should be resolved in separate representation of counsel where an informed speculation of conflict exists. As the Court in Lollar v. United States, 126 App. D. C. 200, 376 F. 2d 243 suggested, an informed speculation as to apparent conflicting interests, like the tip of an iceberg, may not reveal the whole story. Consequently, we must hold that the trial court erred in refusing to permit the appointed counsel from withdrawing because of the apparent conflict of an adverse interest.
Having found prejudicial error on the one point, we next take up those issues that are apt to arise on a new trial. We find no merit in the suggestion that the evidence was insufficient or that the trial court erred in denying a .continuance because of the absent witness on the showing here made. The matter of the quashing of the jury panel is hereinafter discussed.
The record shows that the jury Commissioners in the preparation of their list of prospective jurors did not include the last known addresses as required by Ark. Stat. Ann. § 39-206 (Repl. 1962), and that a deputy clerk, not sworn in accordance with Ark. Stat. Ann. § 39-205 (Repl. 1962), took over the list and filled in the addresses before the master list was placed under lock and key. The record further shows that the Chancery Judge in trying some eminent domain cases on the 11th day of September 1972, withdrew 36 names for use in the Chancery Court and again on September 25 th withdrew an additional 60 names for similar use in another case. Since only the circuit clerk and the circuit judge have keys to the jury wheel and both such keys are necessary to gain entrance to the jury wheel, the circuit judge was present when the chancellor withdrew the 96 names. The 96 names withdrawn by the chancellor were not placed in the Jury Book, but, after their use, those names were placed in what the officials called “discards” or “dead jurors” — meaning that they were no longer available for call.
In Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806 (1973), we held that, due to the many successful attacks that were being made upon our jury selections in post conviction proceedings prior to Acts 1969, No. 568, we could not construe the Act as directory — i.e., the procedure therein outlined is mandatory when the challenge is made at the proper time.
Since Act 568 takes pains to protect the secrecy of the master jury list and specifically provides that clerical employees used in the preparation of the alphabetized master list shall take a specific oath to that effect, we must hold that the use of unauthorized personnel did not comply with Act 568.
Courts like Caeser’s wife must be above suspicion and while we do not wish to discourage chancellors from the use of a jury, we find that the method here used did not comply with Act 568.
Section 18 of Act 568 (Ark. Stat. Ann. § 39-210) provides that the number of jurors drawn and placed in the Jury Book as provided by Section 17, shall be “. . . summoned to appear on a date set by the Court to answer questions concerning their qualifications; and, ... to serve the required number of days or for the maximum period during the calendar year. . . .” The method here used in selecting -...id discarding jurors for use in the chancery court could lead to the suspicion that the courts are using one jury for criminal cases and another for civil cases, in holding that the refusal to quash on this ground was contrary to the spirit and intent of Act 568, we are not saying that it is error for the chancery court to borrow jurors for the trial of issues in equity. Furthermore, we are not condemning such practice. Rather, the better procedure, as it appears to us, would be for the chancery court to take its jurors from the list on the Jury Book and to return them for future use in other trials, being the same procedure required of the circuit court. When the selection is done in that manner both the circuit and chancery courts are above all suspicion in the manipulation of the jury wheel for civil and criminal trials either through selection in the first instance or through the discretionary use of skipping or excusing jurors. We are led to this conclusion because one of the checks on the credibility and integrity of the jury wheel is the requirement of Ark. Stat. Ann. § 39-209 (Supp. 1971), that the circuit judge “not less than 15 days prior to the first jury trial in the year for which the prospective jurors have been selected . . . shall enter an order which shall be spread of record stating a time and place for the initial drawing of the names of petit jurors from the jury wheel or box.” This section also requires that the circuit clerk record the names in the Jury Book in the same order in which they are drawn from the wheel. Ark. Stat. Ann. § 39-213 (Supp. 1971), sets forth the procedure of choice of jurors when an excess number has been drawn and listed in the Jury Book and specifically mentions the order as being the same order as they appear in the Jury Book.
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Carleton Harris, Chief Justice.
Mazelle Bittle, one of the appellants herein, was injured on November 24, 1967, while a passenger in an automobile being driven by her son, this car colliding with the car owned by appellee, Allen Smith. Mrs. Bittle, together with her husband, appellant I. G. Bittle, instituted suit against Smith seeking damages. Mrs. Bittle asserted various disabling injuries and Mr. Bittle sought damages for the loss of consortium, companionship, care and services of his wife. Mr. Smith answered with a general denial. On trial, the jury returned a verdict of $1,500 for Mrs. Bittle, but nothing for her husband. Thereafter, appellants moved to set aside the verdict and asked the court to grant a new trial, it being appellants’ position that under Ark. Stat. Ann. § 27-1901 (Repl. 1962), the verdict should have been vacated because it was not sustained by sufficient evidence, and a new trial should have been granted under Ark. Stat. Ann. § 27-1902 since the amount of actual pecuniary loss sustained was in excess of the verdict. The court denied this motion and from the order of denial, appellants bring this appeal. For reversal, it is simply asserted that “The trial court erred in not setting aside the verdict and granting a new trial.”
Actually, the issue is Ark. Stat. Ann. § 27-1902, which provides as follows:
“A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”
Appellants vigorously contend that the uncontradicted evidence reflects an actual pecuniary loss in excess of $1,500 and that accordingly, they are entitled to a new trial. Medical bills totaling $609.55, occasioned by the wreck, are admittedly uncontradicted, and appellants rely on the contention that Mrs. Bittle was unable to work for twenty-six weeks and three days, amounting to a pecuniary loss in wages of $2,105.71. Adding this amount to the medical bills makes a total of $2,713.26, which appellants assert to be the actual pecuniary loss sustained.
Appellants argue that the situation presently before us is very similar to that presented in the case of Law v. Collins, 242 Ark. 83, 411 S.W.2d 877, the appeal in both cases being based on Ark. Stat. Ann. § 27-1902, except that in Law the trial court had granted a new trial while here it has refused to grant a new trial. We might here state that this one fact makes a vast difference for the granting or refusing of a new trial is a discretionary act by the court, and we only reverse where an abuse of discretion is clearly shown. In other words, since the trial court refused to grant a new trial, appellants must demonstrate that the court abused its discretion in order to prevail in this case.
We are unable to say that the Yell County Circuit Court abused its discretion, and in making this finding, we give no consideration to a fall sustained by Mrs. Bittle on a parking lot in December, 1968, and injuries sustained when a box fell on her head in 1970, mentioned by appellee in his brief, since these events did not occur until a number of months after the contended loss of working time heretofore set out.
A review of the medical evidence is in order. Dr. D. H. Martin of Ola testified that Mrs. Bittle came to his clinic early on the morning of November 24, stating that she had been in an automobile accident, and complaining of discomfort to the right side of her head and left hip. She was admitted to the hospital at Danville and Dr. Martin testified that he found no external evidence of injury and, after x-rays, no findings of any bone pathology. Her left hip was bruised, but there were nó bone fractures, nor were there any bruises on her head. About forty-eight hours later she was discharged and went home, feeling better, but still with some headaches. On December 2, 1967, she again came to his office complaining of feeling “addled” at times and she had bruises on the side of her left leg near the hip; also, she complained of headaches and was given darvon to ease pain. At his direction, she returned one week later, still complaining of headaches and the doctor referred her to a neurologist, Dr. William K. Jordan of Little Rock. Martin saw her occasionally through 1968, and stated that he last saw her on June 17, 1971, when “she only wanted her workmen’s compensation papers filled out, and I suggested to her that we have Dr. Jordan do that, since he was treating her neurologically.” On January 24, 1968, Dr. Martin wrote a note to Morton’s Frozen Foods, employer of Mrs. Bittle, that Dr. Jordan recommended that Mrs. Bittle not work for approximately three months, and on April 18, 1968, Dr. Martin gave Mrs. Bittle a copy of a letter to him from Dr. Jordan’s secretary, stating that Dr. Jordan wanted Mrs. Bittle to take four months off from work. Several other notes from Dr. Martin addressed “To Whom It May Concern” are also in the record with reference to particular days that Mrs. Bittle was to see Jordan, and accordingly would not be able to work.
Dr. Jordan, who first saw Mrs. Bittle on December 22, 1967, testified that she described the automobile wreck and from his examination, he considered that her problem was probably a “post-traumatic cerebral syndrome”. He said that the symptoms given originally were not the same as those subsequently stated. The doctor described various tests that were given and mentioned that he had prescribed mebaral which sometimes helped patients with post-traumatic cerebral syndromes. Jordan stated that he advised Mrs. Bittle, on February 16, 1968, to stay away from work for four months, feeling that she would have a more rapid recovery by not working and remaining quiet. “My main reason in suggesting that, though, was because either she or Dr. Martin told me that she continued to have her symptoms, and I thought that complete rest might help her. My main notion was therapeutic.” The doctor’s testimony is very lengthy and comprehensive and he mentions a number of possibilities but, the issue being as previously stated, there is no necessity to detail this testimony. He did state that in his opinion she had no permanent disability, and he said he considered there was a causal connection between the accident and her condition, “assuming the validity of the accident and the facts and so forth as they were given to me.”
Though not considering the subsequent accidents previously referred to, we think there was still evidence from which the jury could have concluded that Mrs. Bittle’s disabilities were not entirely due to the automobile accident of November, 1967. For instance, Dr. James Pennington of Ola who had been Mrs. Bittle’s physician for several years, when asked about her condition “health wise” prior to the date of the accident, replied, “Well, she had had some female trouble and low back strain, and I believe that’s the main things that I have treated her for.”
Dr. Martin mentioned that since November, 1967, he had treated her for female problems, a respiratory infec tion, and he mentioned that due to her various symptoms, it was suggested that she take tests to determine if she was a diabetic. Dr. Jordan mentioned that Mrs. Bittle had told him that she had had her thyroid removed and had had several female operations. Probably more important than these matters is the fact that Mrs. Bittle, a few days after the accident, returned to her job and worked for two weeks and the jury might well have considered that if she were able to work for this length of time so soon after the accident, the difficulties mentioned could have had their origin elsewhere. Let it be remembered that it is within the province of the jury to determine fact situations; they were not required to believe the testimony of any witness, and particularly that of the Bittles since they were interested parties, and their testimony, under the law, is considered disputed as a matter of law. Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 and Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137.
The trial court, of course, observed all of the witnesses and was in a paramount position to determine whether the verdict was unjust. Since a pecuniary loss exceeding the amount of the verdict (due to the collision) was not definitely established, we are unable to say that the trial court erred in refusing to set aside the verdict. No other error is suggested, and when the evidence shows that a plaintiff is entitled to recover substantial damages, and does obtain a substantial verdict ($1,500 constituting substantial recovery), a judgment will not be reversed because of inadequacy if there be no other error. Smith v. Arkansas Power & Light Company, 191 Ark. 389, 86 S.W.2d 411.
Affirmed.
No evidence was offered by appellee.
It is not clear what this referred to.
Post-traumatic cerebral syndrome is an illness characterized by symptoms which follow an injury to the head not severe enough to cause a concussion.
The doctor mentioned that he referred her to a gynecologist. This was apparently a Dr. Wallace. From the record:
“A. April 7, 1969. Dr. Wallace wrote me a letter, ‘Dear Dr. Martin: Your patient, Mrs. Bittle, saw me following her DNC and cortization. She had almost a complete occlusion of the cervical canal, causing her bleeding. There was. no evidence of cancer. I did a conization and inserted a plastic tube to be left six weeks. ...’
Q. Doctor, what is a DNC?
A. The cervical canal is dilated and the uterus is scraped.” | [
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George Rose Smith, Justice.
This multiparty case began as an action for wrongful death filed by the administratrix of the estate of Ronnie C. Harris. The two appellants (defendants below), Jack Morgan Construction Company and Nuclear Corporation of America, filed cross-complaints seeking contribution and, in Morgan’s case, indemnity from the appellee, John W. Larkan, a third-party defendant. Larkan responded with a motion for summary judgment, upon the ground that there was no genuine issue of fact upon which he could be found to be liable to Morgan or to Nuclear. This appeal tests the correctness of the summary judgment entered by the trial court in Larkan’s favor.
Harris, the decedent, was an ironworker employed in the construction of a building in Stuttgart at the time of his accidental death. The Morgan company was the prime contractor for the construction project. Harris was employed by J. Albert Erection Company — a corporation holding a subcontract for the ironwork. Nuclear was the fabricator of certain steel joists that were involved in the fatal accident. Larkan was the president and manager of the corporate subcontractor — a family corporation wholly owned by Larkan and his wife.
According to the complaint, Harris was working some 25 feet above a concrete floor at the construction site. Steel joists had been placed at that height without having been welded together. A crane was used to place heavy bundles of decking upon the joists. The weight of the decking broke or shifted the joists, causing Harris to fall to his death.
The complaint charged various acts of negligence to Morgan and Nuclear, together with breaches of warranty by Nuclear. Morgan and Nuclear denied having been at fault and by cross-complaint asserted negligence on the part of Larkan in personally supervising and directing that part of the work that resulted in Harris’s death. Both Morgan and Nuclear sought contribution from Larkan toward the payment of any judgment that might be rendered against them. Morgan also sought complete indemnity from Larkan. The issue of contribution and the issue of indemnity involve different principles of law and must be discussed separately.
Contribution. Larkan, in resisting the appellants’ claims for contribution, contends that he was Harris’s employer and is therefore protected from tort liability by the exclusive-remedy provisions of the workmen’s compensation law. Ark. Stat. Ann. § 81-1304 (Repl. 1960). The appellants tacitly admit the general rule that an employer whose concurring negligence contributes to his employee’s injury cannot be held liable for contribution as a joint tortfeasor, the statutory remedy being exclusive. Larson, Workmen’s Compensation, § 76.21 (1970). The appellants ipsist, however, that Larkan as an individual cannot invoke the protection of the statute, because Harris’s employer was the corporation, J. Albert Erection Company.
That argument must be rejected, on the basis of our decision in Neal v. Oliver, 246 Ark. 377, 438 S.W. 2d 313 (1969). There Oliver and his wife and son were the sole owners of a family corporation operating a laundry. Oliver was the active manager of the laundry. An employee sued him for personal injuries assertedly resulting from his negligence in assigning her to work on an unsafe machine and in failing to provide a protective device required by the state safety code. After reviewing the authorities we concluded that the action was precluded by the exclusive-remedy section of the compensation law, because “Mr. and Mrs. Oliver owned the corporate business and they, as well as the corporation, were the employers.”
The appellants seek to distinguish the Neal case on the ground that there Oliver was not present when the employee was injured, while here Larkan was supervising and directing the construction work at the time of Harris’s fatal accident. In both cases, however, the complaint was based upon negligence on the part of the individual defendant. Moreover, the basis for Oliver’s freedom from liability in the earlier case was his status as an employer who had complied with the workmen’s compensation law. Here Larkan stands in the same position and is therefore similarly free from liability.'
Indemnity. The Morgan company, in the following paragraph in its cross-complaint against Larkan, asserted its claim to indemnity:
That by reason of the active negligence on the part of John W. Larkan this defendant has or may be exposed to a liability to plaintiff not based on this defendant’s own active fault, so that in the alternative this defendant should have judgment for indemnity over against John W. Larkan in the full amount of any judgment rendered against this defendant.
The foregoing paragraph fails to state a cause of action, because it alleges no separate obligation running from Larkan to Morgan. Professor Larson, after pointing out that such a distinct duty may arise either by contract or by a special relation between the parties, goes on to say that otherwise the duty does not exist:
In summary: when the relation between the parties involves no contract or special relation capable of carrying with it an implied obligation to indemnify, the basic exclusiveness rule generally cannot be defeated by dressing the remedy itself in contractual clothes, such as indemnity, since what governs is not the delictual or contractual form of the remedy, but the question: is the claim “on account of” the injury, or on account of a separate obligation running from the employer to the third party? Larson, supra, § 76.44.
The rule was stated by Judge Learned Hand in Marra Bros., Inc. v. Wm. Spencer & Son Corp., 186 F. 2d 134 (2d Cir., 1951), with the explanation that if one of the parties (here Larkan) is not liable to the workman, then that party’s liability for indemnity must arise from some other transaction between the two. Judge Hand summarized the law in these words:
[W]e shall assume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two.
Morgan relies upon our decision in Oaklawn Jockey Club v. Pickens-Bond, Constr. Co., 251 Ark. 1100, 477 S.W. 2d 477 (1972), but there, in quoting from an Illinois case, we recognized the requirement that an independent duty exist: “Plaintiff does not sue for damages ‘on account of’ Haviland’s death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant. ... An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action.”
In the case at bar the paragraph that we have quoted from Morgan’s cross-complaint states no independent duty owed by Larkan to Morgan from which an obligation to indemnify might arise. Morgan, however, suggests in its brief two theories upon which its pleading may be deemed sufficient:
First, it is argued that Larkan’s proper course was to file a motion to make more definite and certain rather than a demurrer or motion for summary judgment. The difficulty is that a motion to make more definite and certain, calling for a bill of particulars, is not required when the complaint fails to state a cause of action. As the court said in People v. Corcillo, 88 N.Y.S. 2d 534, 195 Misc. 198 (1949): “The defendants are not required to demand and obtain a bill of particulars in order to determine whether or not a cause of action is álleged against them. A bill of particulars may be had to amplify a complaint, if it states a cause of action. It is not its office to supply the allegations necessary to state a cause of action. That is the office of the complaint.”
Secondly, it is argued that the duty to indemnify should be implied from certain provisions in the subcontract between Morgan and J. Albert Erection Company, by which the latter agreed to provide for the safety of its employees, to comply with applicable safety codes, etc. That contract, however, was between Morgan and the subcontracting corporation; so on its face it imposed no duties on Larkan.
Morgan, to surmount that obstacle, argues that since Larkan disregards the corporate entity in claiming to have been an employer of Harris, he cannot interpose the corporate entity in disclaiming personal responsibility for the performance of the subcontract. We are unwilling to extend the reasoning of the Neal case, supra, to that extent. In Neal the corporate entity was not disregarded, as it is when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person. Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). Instead, we said in Neal that the Olivers as well as the corporation were the employers. In the present case Morgan elected to contract with the corporation rather than with Larkan as an individual. We are not persuaded that Larkan’s status as an employer under the compensation law, with respect to tort law, requires that he also be made a party to the subcontract, with respect to contract law. Certainly it cannot be said in this case, as it was in Rounds & Porter, that Larkan illegally abused the privilege of transacting business in corporate form.
Affirmed.
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Lyle Brown, Justice.
J. O. May appeals from a conviction on a charge of inducing an abortion. It was the theory of the State that at the request of Kaye and Allan Kuykendall, Bill McCord, Jr. contacted Teresa Barrett who he had reason to believe could get in touch with someone who would perform an abortion. Teresa was said to have contacted appellant and arranged for the abortion. Kaye Kuykendall testified that the illegal act was committed on October 9, 1970, which happened to be appellant’s birthday. Appellant’s defense was an alibi. He, along with corroborating witnesses, testified that appellant was in DeValls Bluff celebrating his birthday. Those are about all the facts that are necessary to an understanding of the issues on appeal. Such additional facts as are pertinent to an understanding of any of the issues will be subsequently recited.
We shall first treat appellant’s argument that our abortion statutes, Ark. Stat. Ann. §§ 41-303-310 (Supp. 1971) are unconstitutional in light of two recent decisions of the United States Supreme Court. Doe v. Bolton, Attorney General of Georgia, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Roe v. Wade, District Attorney of Dallas County, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). In both cases, parts of the abortion laws of the respective states were declared unconstitutional. In Roe, it was determined by the Court that a pregnant single woman had standing to attack the Texas statute; the plaintiffs in Doe were an indigent, married, pregnant Georgia citizen and certain licensed physicians, standing being conferred, so the Court held, on the latter through Epperson v. Arkansas, 393 U.S. 97 (1968). The most salient aspect of both cases (Roe and Doe) for the purposes of the appeal in the case at bar is that the decisions in/ both Roe arid Doc contemplate the per for mance-of'abortions only by licensed physicians.. In fact as to laymen, Roe makes the statement, in its summary under XI that a state “may proscribe any abortion by a person who is not a physician”. .Our Ark. Stat. Ann. § 41-303 in effect prohibits abortions by two classes of people, physicians and laymen. The effect of the Supreme Court holdings was to strike down the prohibition as against physicians during the period preceding approximately the end of the first trimester. The cited section can be left intact as to laymen; that was the effect of our holding in Borchert v. Scott, 248 Ark. 1041, 460 S.W. 2d 28 (1970), where we said: “If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other”. An abortion case in point in this respect is Commonwealth v. Brunelle, 277 N.E. 2d 826 (Mass. 1971).
The appellant has no standing to personally attack the constitutionality of § 41-303 because it is not unconstitutional as applied to him. As applied to appellant, § 41-303 simply prohibits a layman from performing or inducing an abortion. As we have pointed out, the United States Supreme Court says in Doe and Roe that the states have a right to prohibit such activity by one other than a physician. In Brunelle, supra, the standing of the accused to attack the statute as unconstitutional was brought into question and his standing to make that attack was denied because Brunelle was not a licensed physician. The court said: “Only persons whose interests are affected by a statute may assert that it is unconstitutional”.
We are compelled to reverse and remand for new trial, principally because appellant was denied the right to attack the credibility of some of the State’s key witnesses on the grounds of certain acts of moral turpitude. For example, appellant sought to elicit from Mrs. Kuykendall the fact that she had sexual relations with another witness, Bill McCord, Jr., while she was married to Allan Kuykendall. (Mrs. Kuykendall admitted the act in her testimony in chambers). Appellant also sought to elicit on cross-examination of Bill McCord, Jr., a State witness, that McCord had been found in an alley suffering from the effects of drugs. On cross-examination the credibility of a witness may be impeached by showing acts of moral turpitude. Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228 (1972); Heath v. State, 249 Ark. 217, 459 S.W. 2d 420 (1970). Still more in point are such cases as Garrard v. State, 113 Ark. 598, 167 S.W. 485 (1914), intercourse with other men; Rowe v. State, 155 Ark. 419, 244 S.W. 463 (1922), intercourse with others; Schooley v. State, 176 Ark. 895; 2 S.W. 2d 67 (1928) immoral acts.
Several other points for reversal are advanced. Some of those will not arise on retrial; others have no merit; and some present situations in which a timely record was not made.
Reversed and remanded.
Byrd, J., dissents in part. | [
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Conley Byrd, Justice.
Appellee Jimmy Gates, the surface owner of some land in Sec. 28, T. 16 S, R. 12 W, and Franklin Oil Company, Inc., as the owner of some oil and gas leases entered into a contract for the building of roads and the clearing of oil well drilling sites on the land. It was agreed that each oil drilling site would be 200 ft. by 200 ft. and that Franklin would pay |400 for each site. The contract further provided that Gates and Franklin would mutually agree on the location and width of all tributary roads to each well site. Texas Continental Oil Company, Inc., assignee of Franklin entered the land to drill oil wells. During the drilling of the third well, Gates barred Texas’ right of ingress and egress. Texas filed suit alleging a breach of the contract and asked for a temporary injunction. Gates defended on the ground that Texas was taking more land than was necessary to serve its purposes. Appellant Western Surety Company became the surety on two temporary injunctions issued pursuant to Ark. Stat. Ann. § 32-206 (Repl. 1962), the bonds being in the total amount of $4,400.00. The last temporary injunction order provided that the two bonds together with prior cash payments to Gates represented adequate deposits to protect the interest of Gates and reserved the issue raised by Gates in his answer until such time as a determination could be made. After Texas had drilled eleven wells and had gone into bankruptcy, Gates pursued his cause for the excessive use of his land against the surety bonds issued by appellant. The chancellor found that Gates’s damages exceeded the amount of the bonds and entered judgment for the full amount of the bonds.
For reversal appellant, contends:
“I. THERE HAS BEEN NO BREACH OF THE INJUNCTION BOND.
A. There has been no final decision that the injunction ought not to have been granted.
B. Neither dissolution of the injunction nor dismissal of the action for want of prosecution establish breach of the bond condition.
II. THE TRIAL COURT AWARDED DAMAGES NOT RECOVERABLE UNDER THE BOND OBLIGATION. '
A. Damages awarded were not result of the act enjoined.
B. Bond was not conditioned on the payment of damages allowable under 'Road Building Contract.’
III. THE AWARD WAS EXCESSIVE AND NOT SUPPORTED BY THE EVIDENCE.”
The record shows that Gates in the construction of well sites greatly exceeded the 200 X 200 feet agreed to in the contract. The clearing around one well site was as much as 575 feet long and 300 feet wide. The testimony is to the effect that a reasonable tributary road would be from 12 to 16 feet in width but that some of the roads constructed by Texas were 75 feet wide. To some wells, Texas constructed more than one tributary road. The witnesses estimated that the value of the land in a cleared condition was $50 per acre as compared to $275 to $280 per acre with the timber on it at the time the temporary injunctions were issued. Texas did not consult with Gates as to the width and location of the roads.
Under points I and II, appellant argues that there was no breach of the injunction bond and that the court wrongfully awarded judgment for damages to Gates’s land as a result of Texas’ activity and not as a result of the issuance of the injunction,*— i.e. appellant argues that the injunction bond was not an indemnity agreement nor was it insurance for damages that Gates sustained as a result of Texas’ entry on the land under the road building contract.
Ark. Stat. Ann. § 32-206 (Repl. 1962), provides:
“In every case, the court or judge granting an injunction shall specify in the order therefor an amount, for which the party obtaining it shall give security in a bond to the party enjoined, before the injunction shall become effectual; which amount shall be sufficient to cover all the probable damages and costs that may be occasioned by the injunction. The court or judge may prescribe the effect of the bond, so as to secure to the party enjoined the damages to which he may become entitled, if it is finally decided that the injunction ought not to have been granted...”
As we view the evidence in this case it shows that Texas was ignoring the terms of the road building contract at the time Gates barred its right of ingress and egress and that it continued to do so after the issuance of the temporary injunction. Since the termporary injunction permitted Texas to continue to violate the terms of the road building contract, we conclude that the evidence shows that it was wrongfully issued. In so holding we point out that the issues here are not those regulated by law between the surface holder and the lessee of mineral interests but that the issue here involves a matter about which the parties had contracted. Under the terms of that contract the size of the drilling site was fixed and Gates was entitled to be consulted as to the location and width of the tributary roads. Of course without the injunction Gates could have insisted upon Texas’ compliance with the road building contract. Under the injunction he was helpless to interfere.
Neither do we find any merit in the contention that the damages are excessive. Appellant in making this argument does so on the basis that the court erred in stating the amount of land taken. As we understand appellant’s argument, it uses the wrong formula in calculating the excess area used in the well sites.
Affirmed.
Fogleman, J., concurs. | [
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Conley Byrd, Justice.
Appellants Mr. and Mrs. Sidney M. Hall brought this action against appellee Julia Jeanette Blanford to vacate and set aside a confirmation of title decree rendered in favor of appellee pursuant to Ark. Stat. Ann. § 34-1901 (Repl. 1962), et. seq. Upon motion of appellee, the Chancellor dismissed appellants’ complaint on the ground that it constituted a collateral attack. Hence this appeal.
Appellants did not follow Ark. Stat. Ann. § 34-1910 (Repl. 1962), in seeking to set aside and vacate the confirmation decree in favor of appellee but filed a separate action in which they alleged that the confirmation decree rendered on July 21, 1971, in favor of appellee was only upon publication of warning order notifying anyone claiming any interest in the land to appear within thirty days. The complaint further alleged:
“(c) That the said Sidney M. Hall and Quanita Hall, plaintiffs herein, have claimed the land continuously, openly, exclusively, notoriously, and adversely since July 7, 1946, and that they have paid the taxes on same every year for the past twenty-five (25) years.
“(d) That plaintiffs were not notified of the pendency of this. suit even though the defendant knew that they claimed title to the land and also knew the address of the above plaintiffs and could have notified them personally of the pendency of said suit or by appointing an attorney ad litem to notify them.”
In Welch v. Burton, 221 Ark. 173, 252 S.W. 2d 411 (1952), Hensley v. Phillips, 215 Ark 543, 221 S.W. 2d 412 (1949), Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W. 2d 858 (1928), and Grayling Lumber Co. v. Tillar, 162 Ark. 221, 258 S.W. 132 (1924), we held that where a known claimant or one who had paid taxes thereon within seven years is not made a party defendant to a quiet title action, that party, or those claiming under him, can set aside and vacate in a separate action the decree of confirmation. Those cases also point out that the attack m such a case is a direct attack on the decree of confirmation. See also Ark. Stat. Ann. § 34-1902 and § 34-1909 (Repl. 1962).
Reversed and remanded. | [
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Frank Holt, Justice.
Appellants were convicted by a jury of burglary and grand larceny. Through their present court appointed counsel, appellants persuasively argue for reversal of the judgments that the state failed to prove the voluntariness of their confessions and did not overcome the legal presumption that the confessions were involuntary because the state failed to call material witnesses or explain their absence. We must agree with this contention which is one of first impression in our state.
In Mitchell v. Bishop, Supt., 248 Ark. 427, 452 S.W. 2d 340 (1970), we said:
“Of course, under our own case law, there is a presumption that an in-custody confession is involuntary and the burden is on the state to show the statement to have been voluntary, i.e., freely and understandably made without hope of reward or fear of punishment. In determining whether a confession is voluntary, the court must look to the whole situation and surroundings of the accused.”
In the case at bar appellants contested the introduction into evidence of their alleged confessions by a motion to suppress. Accordingly, a Denno hearing was held in chambers to determine the issue of voluntariness which resulted in the court’s finding, by a preponderance of the evidence, that the confessions were freely given as is required by Ark. Stat. Ann. § 43-2105 (1964 Repl.). The state offered only one witness, Kenneth McFerran, an arresting officer, to meet its burden of showing the confessions were voluntary. During appellants’ interrogation, there were, also, present Trooper Snider and a stenographer, who reduced appellants’ oral statements to typewritten forms. McFerran testified that he arrested appellants about 10 a.m., placed them in custody of other officers and didn’t see appellants again until he returned about 10 p.m. to question them. Appellants were properly advised of their constitutional rights and signed waivers. According to McFerran, he did all of the questioning and used no force, threats, beatings, coercion, nor any promise of leniency or reward to induce appellants to make their oral confessions or to sign their typed statements the next day. McFerran did not know whether appellants were questioned by Snider during the approximate 11 hour interim between their arrest and their interrogation that night.
Both appellants agree that they were given the Miranda warnings, knew their rights, signed waivers and the typewritten statements. However, both appellants contra- dieted parts of MeFerran’s testimony. According to them, Snider questioned them during the time they were in custody and before McFerran returned that night. Also, Snider alone did all the questioning that night. Appellants testified that Snider physically abused and threatened them before conducting the interrogation that night. One testified that preceding the interrogation Snider slapped him, stuck a cocked pistol in his face and, also, said “I can help you.” The other appellant said Snider threatened him with a pistol and that another officer kicked him. Because of this treatment, appellants say they orally confessed their guilt and signed their controverted confessions.
After appellants testified, McFerran was recalled and reiterated that he did the actual questioning of each appellant; appellants made their statements to him only; and, although Snider was present, he didn’t ask any of the questions nor offer any leniency or coercion. Also, appellants didn’t complain to him nor have the appearance of having been abused, mistreated, threatened or coerced by Snider or anyone else. Again, he acknowledged that he didn’t see appellants after they were placed in jail around 11 a.m. until 10 p.m. and was unaware of what happened to appellants during this 11 hour period.
The state didn’t call the stenographer to testify even though she was present during appellants’ interrogation, took appellants’ statements down in shorthand, and reduced the statements to typewritten form. No explanation was made for her absence when it appears that she is a secretary for the local police department. Snider was not called to contradict appellants’ allegations although it appears he was working out of a nearby town on the trial date. His absence was, also, unexplained. Thus, appellants’ testimony as to Snider’s coercion and promises of leniency was not challenged by Snider himself. McFerran admitted that he had no knowledge of what happened to appellants after they were placed in jail and before he conducted his interrogation.
Recently we found error in a trial court’s ruling that a confession was voluntary where the appellant’s testimony was uncontradicted by an official who appellant said agreed to “try to help me” in exchange for his statement. Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972). There we again recognized that a confession of guilt cannot be tainted by any official inducement which results from promises of reward, coercion or fear. Of course, this is true even if the Miranda warnings are given. In the case at bar, as indicated, appellants’ testimony of Snider’s coercion and promise of assistance is uncontradicted by Snider. McFerran only testified that he himself had no knowledge of threats or promises of leniency. He could not rule out these possibilities. In these circumstances we must agree with appellants that the state did not meet its burden of overcoming the presumption that the alleged confessions were involuntary.
This is in accord with other states where this issue, now before us, was presented. They have adopted a reasonable and practical approach in determining the voluntariness of a confession. They hold that all material witnesses must be called or their absence satisfactorily explained in order for the state to meet its burden of proving that a confession was voluntarily given. In Mercer v. State, 206 A. 2d 797 (Md. 1965), the appellant’s conviction was reversed because his testimony that he was physically mistreated by two detectives was uncontradicted by either of the persons accused of the mistreatment. However, in Gill v. State, 289 A. 2d 575 (Md. 1972), that court held that it is not required that “each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden. But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted.” In People v. Armstrong, 282 N. E. 2d 712 (Ill. 1972), the appellant was properly advised of his constitutional rights before making a statement. A motion to suppress was sought and refused. The state failed to produce all witnesses material to the making of the statement or explain their absence. It was held that appellant’s statements should have been suppressed. From that opinion:
‘The burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden.’ ”
See, also, Stevens v. State, 228 So. 2d 888 (Miss. 1969).
We hold that whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.
Appellants, further, contend the court erred in permitting the prosecuting attorney to refer to other crimes in questioning a state witness and make prejudicial statements during his closing arguments. Even though we should agree with this assertion, we need not discuss it since it is not likely to happen again on retrial. Neither do we deem it necessary to discuss appellants’ assertion there was insufficient evidence to support the verdict since they do not favor us with any argument to support this contention.
Reversed and remanded.
Fogleman, J., not participating. | [
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ROBIN F. WYNNE, Associate Justice
hThe Arkansas State Police and Bill Sadler, in his official capacity as custodian of records for the Arkansas State Police (collectively, the ASP), appeal from a Pulaski County Circuit Court order granting appellee Daniel Wren relief on his complaint for unredacted access to certain accident reports under the Freedom of Information Act (FOIA). The ASP argues that the circuit court erred in holding that its policy of redacting personal information from accident reports is a violation of FOIA; the ASP contends that the redacted information is exempted from disclosure because its disclosure is prohibited by the federal Driver’s Privacy Protection Act. We affirm.
The parties stipulated to several facts before the circuit court. Appellee, an attorney, requested to inspect accident reports obtained by Troop A of the ASP from May 1, 2015, through May 21, 2015. His reason for requesting the accident reports was to search for and solicit potential clients for his law practice. The parties agreed that the accident reports are public records as defined by FOIA and that pursuant to Arkansas Code Annotated section I ¾27 — 53—202(b)(2)(B) (Supp. 2013) the name and address of any minor should be redacted- from the reports. At issue before the circuit court was whether the Driver’s Privacy Protection Act • (DPPA) applied to the personal information contained in the accident reports, as ASP contended. ASP’s policy, effective January 1, 2015, requiredj redaction of personal identifying information unless one of the fourteen DPPA exceptions applies. Accident reports would no longer be available for in-bulk inspection, but specific reports could be purchased for $10 each. According to the ASP policy, all nonpersonal information contained within accident reports would be released to a requesting third party — for example, factual information as to where, when, or -how a crash occurred or the type of vehicle involved.
UThe court held a hearing on June 5, 2015,: at which appellee and Gregory Downs, general counsel for the ASP, testified. Downs testified that at the scene of an accident, a state trooper typically uses the Office of Motor Vehicles’ database to “auto-populate” the information in an accident report, although the information can also be physically entered into the computer. He testified that “ninety-nine percent of the time” information is gained from swiping the magnetic strip on the back of a driver’s license. He also testified that a person involved in an accident can get an unredacted copy of the report, including the other driver and any passenger’s personal information, without the other parties’ consent. There is no exception for the media. Yet, attached to appellee’s posthearing brief were five newspaper articles regarding fatal crashes in which the ASP reported the names and hometowns of those involved in fatal vehicle crashes in June 2015. In its amended order of July 8, 2015, the circuit court ruled in favor of the appellee and enjoined the policy of the ASP regarding redactions of accident reports. This appeal followed.
The sole issue on appeal is whether the DPPA prohibits disclosure of personal information in accident reports, which are public records within the meaning of FOIA. We review issues of statutory construction de novo. Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 439, 260 S.W.3d 718, 720 (2007). This court liberally interprets FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Nabholz Constr. Corp. v. Contractors For Pub. Prot. Ass’n, 371 Ark. 411, 416, 266 S.W.3d 689, 692 (2007). Fur thermore, we broadly construe FOIA in favor of disclosure. Id.
|4In 1994, Congress passed the DPPA, 18 U.S.C. §§ 2721-2725, which regulates the disclosure of personal information contained in the records of state motor-vehicle departments. The legislation was introduced in response to growing concern over crimes committed by individuals who used Department of Motor Vehicle (DMV) records to identify and locate their victims. Parus v. Kroeplin, 402 F.Supp.2d 999, 1005-06 (W-D.Wis.2005). In- addition, Congress found that many states were selling personal information collected by DMVs to individuals and businesses. See, e.g., 139 Cong, Rec. 29466, 29468, 29469 (1993); 140 Cong. Rec. 7929 (1994) (remarks of Rep. Goss). As explained by the United States Supreme Court:
The DPPA establishes a regulatory scheme that restricts the States’ ability to disclose a driver’s personal information without the driver’s' consent. The DPPA generally prohibits any state DMV, or officer, employee, or contractor thereof, from “knowingly disclosing] or otherwise mak[ing] available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record.” 18 U.S.C. § 2721(a). The DPPA defines “personal information” as any information “that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information,” but not including “information on vehicular accidents, driving violations, and driver’s status.” § 2725(3). A “motor vehicle record” is defined as.“any record that pertains to a motor vehicle operator’s permit, motor vehicle title, . motor vehicle registration, or identification card issued by a department of motor vehicles.” § 2725(1).
Reno v. Condon, 528 U.S. 141, 144, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The DPPA establishes criminal fines and a private cause of action for its violation. 18 U.S.C. §§ 2723, 2724. Despite its general prohibition, the DPPA lists fourteen permitted uses of personal information obtained from |fimotor-vehicle records. Id. § 2721(b). These exceptions include use by any government agency in carrying out its functions; use by any insurer or self-insured entity in connection with claims-investigation activities,-antifraud activities, rating, or underwritinjg; and use by any requester, if the requester demonstrates it has obtained the written consent of the individual to whom the information pertains. Id. In Maracich v. Spears, — U.S. -, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013), the United States Supreme Court held that a law firm’s obtaining personal information from the state department of motor vehicles and sending communications for the predominant purpose of solicitation is not a use of personal information exempt from DPPA liability under subsection (b)(4)’s “litigation exception.” Generally speaking, redisclosure or resale by an authorized recipient of personal information under section 2721(b) is permitted only for a use permitted under subsection (b). Id. §• 2721(c).
This appeal presents an issue of first impression 'in Arkansas. The ASP relies primarily on the following cases from other jurisdictions. In Camara v. Metro-N. R.R. Co., 596 F.Supp.2d 517 (D.Conn.2009), plaintiffs were employees who asserted that Metro-North had violated the DPPA' by improperly obtaining and using their personal information from motor-ve- hide records maintained by various state departments of motor vehicles. The court granted summary judgment to the defendant because the information obtained— plaintiffs’ driving histories — was not protected personal information under the statute. That case is not at all similar to the facts of the present case. The case most helpful to the ASP’s position, Pavone v. Law Offices of Anthony Mancini, Ltd., 118 F.Supp.3d 1004 (N.D.Ill. 2015), was entered after the circuit court had made its decision in the present case. In Pavone, the federal district court denied a law firm’s motion to dismiss a class action un der lfithe DPPA alleging that the firm obtained Illinois traffic crash reports and used the information in those reports to send targeted solicitations to persons involved in car accidents. The court held that personal information contained in crash reports did not fall within the scope of DPPA’s exception for information on vehicular accidents and that the DPPA protected personal information contained in crash reports. Of course, Pavone is not controlling precedent for this court. In addition, the ASP cites Whitaker v. Appriss, Inc., 2014 WL 4536559 (N.D.Ind. Sept. 11, 2014), in which the federal district court denied a motion to dismiss a DPPA complaint, finding that “it’s plausible that the personal information in the [police department motor vehicle] accident reports was obtained from the state department of motor vehicles, and thus Ms. Whitaker and Mr. Dunkin might have a claim under the DPPA.” Whitaker, 2014 WL 4536559, at *5.
In contrast, in Mattivi v. Russell, 2002 WL 31949898 (D.Colo. Aug. 2, 2002), the federal district court granted the defendants’ (a newspaper publisher and editor) motion for summary judgment filed by Mattivi under the DPPA after the newspaper obtained and published an accident report of his single-car vehicle collision, for which he was charged with DUI. The court concluded that the accident report generated by the Colorado State Patrol and provided to defendants by that agency is not a “motor vehicle record” under the DPPA, and defendants’ publication of the report in the newspaper did not violate the DPPA. The court also concluded that the plain language of exception in section 2725(e) makes clear that Congress did not intend “information on vehicular accidents” to be included within the Act’s prohibition of disclosure of “personal information.” We find the Mattivi court’s reasoning persuasive.
17Keeping in mind the intent of Congress in passing the DPPA, it is clear that a vehicle-accident report is not included in the definition of “motor vehicle record,” regardless of whether, as a matter of convenience, some of the information included in an accident report may be taken from or verified by a database maintained by the Office of Motor Vehicles. Furthermore, Congress specifically provided that “personal information” does not include information on vehicular accidents. Because the DPPA does not prohibit information contained in accident reports from being released under FOIA, we affirm the ruling of the circuit court.
Affirmed.
Baker and Goodson, JJ., dissent.
. Arkansas Code Annotated § 27-53-202, Reporting requirements, provides in part:
(2)(A) Except as provided under subdivision (b)(2)(B) of this section, the accident report shall contain a full and complete list of tire names and addresses of all passengers occupying the taxicab, bus, or other vehicle at the time of the accident.
.(B) The name and address of a minor occupant who" is únder eighteen (18) years of age shall be included in the report, but the name and address of the minor occupant shall:
(i) Not be open to public inspection under this subchapter or the Freedom of Informa- • tion Act of 1967, § 25-19-101. et seq„ unless the requestor is:
(a) The parent, legal guardian, or legal custodian of the minor occupant; or
(b) A representative of an insurance company that insures a person, involved in the - accident; and
(ii) Be redacted on copies including without limitation written, photostatic,, or electronic copies, produced under this subchap-ter or the Freedom of Information Act of 1967, § 25-19-101 et seq., unless the re-questor is identified in subdivision (b)(2)(B)(i) of this section,
. ArLCode Ann. § 25-19-105(a)(l)(A), provides: "Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the. records.”
. The DPPA was a part of the Violent Crime Control and Law Enforcement Act of 1994, | [
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George Rose Smith, Justice.
This action by Martin Terry for personal injuries and property damage stems from a traffic collision in Fayetteville on April 4,1978. Terry filed this suit on June 5, 1978. Zardin, the defendant, was served with summons on June 15, but he let the case go by default without filing any pleading. When a default judgment was entered in Terry’s favor on October 5, Zardin had become an inmate of the state penitentiary pursuant to a marihuana conviction that was entered 21 days after the traffic collision, but which directed that Zardin not be committed to the penitentiary until September 18, 1978.
After writs of execution and garnishment had been issued some years later, Zardin filed a motion on June 4, 1981, to set aside the default judgment because it was entered while Zardin was in the penitentiary. After a hearing the trial judge held, on proof that Zardin had admitted to a police officer on the morning after the collision that he had run a stop sign and had assumed full responsibility for the accident, that no meritorious defense had been shown and that the judgment should stand.
For reversal Zardin argues that the default judgment was absolutely void, not merely voidable, and therefore his failure to show a meritorious defense is immaterial. Since the judgment was entered before our Rules of Civil Procedure took effect on July 1, 1979, the case is governed by the earlier statutes, but we do not imply that our decision would be different if ARCP 4 (d) (4) and 17 (c) were controlling.
The issue is whether the 1978 judgment against Zardin entered while he was in prison, was void or merely voidable. On this point we might, except for some imprecise language in a 1939 decision, dispose of the present case by citing a precedent so nearly identical to this case as to be indistinguishable. McDonald v. Fort Smith & Western R.R., 105 Ark. 5, 150 S.W. 135 (1912). The only factual difference is that in McDonald the defendant Ella Hare was insane when the j udgment was entered against her without any defense in her behalf; here Zardin was in prison when the judgment was entered against him without any defense being made. But the controlling statute, the Civil Code of 1869, was essentially the same as to both defendants. In successive sections the Civil Code provided in § 74 that service of process upon an insane person should be upon his guardian, his wife, or the keeper of the asylum where he was confined, and in § 75 that service upon a prisoner in the penitentiary should be upon the prisoner, the keeper of the penitentiary, and the prisoner’s wife. Ark. Stat. Ann. §§ 27-337 and -338 (Repl. 1962). In related provisions of the Civil Code it was declared in § 53 that no judgment “can be rendered” against an insane person until after a defense in his behalf, and in § 56 that no j udgment ‘ ‘can be rendered’ ’ against a prisoner in the penitentiary until after a defense in his behalf. §§ 27-830 and 833.
In McDonald judgment was rendered against the insane woman with no defense in her behalf. The court stated the same issue as that now before us: “The question, therefore, to be determined is whether said judgment is void or only voidable.” Our answer was clear-cut:
A judgment, however, which is rendered without the appointment of or defense by a guardian for such insane person is not void. It would be erroneous to render a judgment against an insane person without the appointment of, or a defense made by, his guardian, and a judgment so rendered would be liable to reversal upon appeal or to vacation upon a proper action being instituted to that end. But such judgment would be voidable only. (Italics supplied.)
The out-of-step case, on which Zardin now relies, is Puckett v. Needham, 198 Ark. 123, 127 S.W. 2d 800 (1939). In Puckett the facts, as fully shown in the record on file in our clerk’s office, were that Clark Needham filed a complaint for divorce against his wife Goldina, with whom he had not lived for some years. Goldina owned a house and lot she had received from her mother, but Clark falsely alleged in his complaint for divorce that the property belonged to him. A summons was served on Goldina, then in the county jail. Several persons intervened to assert laborers’ and materialmen’s liens against Goldina’s property, but they obtained no service of process on Goldina. Goldina, like Zardin in the case at bar, made no defense, and a default decree was entered against her after she had been transferred to a federal penitentiary. She, however, promptly filed a motion to set aside both the foreclosure of the liens and the ensuing judicial sale to Puckett. The chancellor set the decree aside during the same term of court, as he then had the discretion to do, and later held a hearing. Goldina proved by undisputed proof that her husband’s allegations of ownership and the intervenors’ assertions of liens were wholly fraudulent. The chancellor sustained her obviously meritorious defense and awarded her the property, which had belonged to her all along. The effect of his decree, as we pointed out, was to leave intact the divorce (which was based upon a valid service of summons) but to set aside the liens (with respect to which Goldina had received no notice).
The chancellor in Puckett treated the original decree only as voidable, not as void, for he set it aside upon a showing of a meritorious defense. But in affirming his action we referred loosely to the decree as void, on the theory that the court had no jurisdiction over a penitentiary prisoner for whom no defense had been made. The decree was in fact void, for want of any service of process to support the new causes of action asserted by the lienors, but we referred to it as void for a completely erroneous reason. The McDonald case, supra, which would have dictated the correct holding — that the decree was merely voidable — was not cited by counsel and of course was not cited in the opinion, nor was any other Arkansas case referred to. Puckett was later followed by Shappy v. Knight, 251 Ark. 943, 475 S.W. 2d 704 (1972), but there the order of adoption was certainly voidable for want of service; so we need not discuss that holding.
In the case at bar Zardin was a free man when he was served with summons and when he permitted the timd to expire for filing his answer to the complaint. Thus the court had jurisdiction both of the subject matter and of the person when it entered its default judgment after Zardin had become a prisoner. That judgment, if not completely valid, was at the very worst merely voidable for the reasons given in the McDonald case. Zardin has failed in his effort to avoid the judgment, for his proof did not establish a meritorious defense. The trial court’s judgment was therefore correct.
Affirmed.
Holt and Purtle, JJ., dissent. | [
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John I. Purtle, Justice.
The Sebastian County Circuit Court rejected appellant’s petition for a writ of habeas corpus wherein he sought release from confinement being imposed pursuant to the Governor’s arrest warrant on extradition proceedings. This appeal is based solely upon the grounds that the court erred in failing to grant the writ. We hold the trial court acted properly in denying the petition for a writ of habeas corpus.
On February 18, 1981, the Fort Smith Police Department received a teletyped message from the Newport News, Virginia, Police Department that one Frank Smith was wanted in Virginia on a warrant charging him with embezzlement. They furnished the Fort Smith officers the name, address and telephone number where Frank Smith could be contacted. Two officers proceeded immediately to the address, found the appellant and informed him he was wanted on a warrant in Newport News, Virginia. They placed him under arrest to be held for the Virginia authorities. After arriving back at the station the officers recontacted the Virginia authorities, both by teletype and telephone, and were furnished more details about the warrant. While at the police station, appellant admitted he had been employed by the people who had caused the warrant to be issued but denied that he took any money. An information sheet and arrest report were made out which included the appellant’s date of birth and social security number. It later developed that the date of birth was exactly two years off and the social security number had the two middle numbers different from the information received from Virginia.
The appellant remained in the Sebastian County jail until his petition for habeas corpus was heard on August 27, 1981. In the meantime, on April 8, 1981, the Governor of Arkansas issued his warrant ordering appellant extradited. Appellant is, of course, being held subject to disposition of this case on appeal.
The only issue before the court is whether the Governor’s warrant of arrest was valid. It appears valid on its face as does the requisition from the Governor of Virginia. This case is almost on all fours with the case of Cadle & Pierce v. Cauthron, Sheriff, 266 Ark. 419, 584 S.W. 2d 6 (1979). There we pointed out that the Constitution of the United States, art. 4, § 2, cl. 2, states:
A person charged in any State with Treason, Felony, or other Crime who shall flee from Justice and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime,
We also pointed out in Cadle if Pierce that Arkansas had adopted the Uniform Criminal Extradition Act [Ark. Stat. Ann. §§ 43-3001 — 3030 (Repl. 1977)], which is essentially the same as the provisions of 18 United States Code § 3182 which in turn reflect the same provisions as the federal constitution quoted above.
After the Governor issues his warrant the only matters which can be considered by the court, when extradition is contested, are (1) whether the party detained is the person named in the warrant and, (2) whether he is a fugitive. Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974).
The facts reveal the Virginia authorities contacted the Arkansas authorities and furnished appellant’s name, address and telephone number. The appellant was picked up at this address almost immediately. Later on the same day the Fort Smith police learned the name of the employer from whom the appellant was alleged to have taken funds. Appellant admitted having been employed by that employer in Newport News but denied he took any funds. The minor error in the social security number and the date of birth resulted from information furnished by the appellant after he was taken into custody and informed there was a warrant in Virginia for his arrest. The above unrefuted facts are substantial evidence which could properly be used to determine the appellant was indeed the man named in the Virginia warrant and that he was a fugitive. The requisition from the Governor of Virginia shows facts necessary to return the appellant to the state, thus everything being in proper order the judgment below is affirmed.
Appellant argues that his initial arrest was violative of his constitutional rights, and that subsequent actions culminating in the Governor’s warrant were illegal. Once the Governor’s warrant has issued we cannot review upon appeal anything other than what has previously been set out. Therefore, we do not consider the manner of the initial apprehension and the detention which could have been questioned prior to the issuance of the Governor’s warrant.
Affirmed.
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Annabelle Clinton Imber, Justice.
This case concerns the disenrollment of Appellee Preston Huffstuttler (Preston) by Appellant Calvary Christian School, Inc. (Calvary Christian). A jury awarded Preston damages for breach of contract, intentional interference with a contract, outrage, and defamation. The jury also awarded Preston’s mother, Appellee Dorma Huffstutder, damages for defamation. On appeal, Appellants Calvary Christian, Terral Neeley, Michael Borden, M.C. Lewellen, Jr., and David Rodgers, individually and in their capacity as directors of Calvary Christian, and Suzanne Hess, raise ten points for reversal. Those ten points can be grouped into three categories: (1) the circuit court did not have subject-matter jurisdiction of this case, (2) in the event the circuit court did have jurisdiction, the court erred in denying their directed-verdict motions on all the alleged claims, and (3) if the directed-verdict motions were correctly denied, the award of damages should be reversed. We affirm in part and reverse and dismiss in part.
Calvary Christian is a parochial school located in Forrest City. It is undisputed that Preston, a junior in high school, had attended Calvary Christian since kindergarten. During Preston’s junior year, in September 2001, Preston discovered a video camera hidden in the duct work (the ventilation system) of his school classroom at Calvary Christian. He reported the video camera’s presence to his teacher, Rhea Hall, and to his parents, Appellees Ted and Dorma Huffstuttler. Because the classroom was also used as a dressing room for school events, the Huffstuttlers became concerned and complained about the camera to school authorities at a school meeting attended by other parents. Suzanne Hess, one of the school’s principals, initially denied the presence of the camera, but later admitted it was placed there by a school board member, M.C. “Buddy” Lewellen. Thereafter, a dispute concerning the school’s loss of accreditation and the use of a hidden video camera developed between Calvary Christian and Ted and Dorma Huffstuttler. On January 10, 2002, the Huffstuttlers were asked to sign a new agreement, whereby their family would agree to support the policies, procedures, staff, and administration of the school. The Huffstuttlers all signed that agreement. On January 17, however, the governing board of Calvary Christian decided to disenroll Preston. Immediately following Preston’s disenrollment, the Huffstuttlers filed a complaint, seeking to keep their son enrolled in the school. Although the Huffstuttlers nonsuited their complaint on March 28, 2002, they reinstituted the suit by filing another complaint on September 26, 2003. In that complaint, the Huffstuttlers sought damages for breach of contract, intentional interference with contractual relationships, outrage, and defamation. In addition to compensatory damages, the Huffstuttlers requested punitive damages. Appellants filed a motion to dismiss and, alternatively, for summary judgment. In essence, Appellants challenged the circuit court’s subject-matter jurisdiction because the case involved a parochial school. The circuit court denied the motion, and Appellants then filed a petition for a writ of prohibition with this court, which petition was denied on May 13, 2004.
The suit proceeded to trial, and the jury found in favor of the Huffstuttlers. They awarded (1) the Huffstuttlers $10,000 for breach of contract, (2) Preston $25,000 in compensatory damages and $75,000 in punitive damages for the tort of outrage, (3) Preston $25,000 in compensatory damages and $25,000 in punitive damages for intentional interference with the contract between the Huffstuttlers and Calvary Christian, (4) Preston $10,000 in compensatory damages and $15,000 for punitive damages for defamation, and (5) Dorma zero compensatory damages and $5,000 for punitive damages for defamation. Following the circuit court’s entry of judgment on October 18, 2004, Appellants filed a motion for judgment notwithstanding the verdict QNOV), and alternatively for new trial, on October 26, 2004. Pursuant to Ark. R. App. P.-Civil 4(b) (2006), the posttrial motion was deemed denied on November 25, 2004. Appellant timely filed a notice of appeal on December 1, 2004.
The case has been certified to this court by the Arkansas Court of Appeals as a case involving an issue of first impression, federal constitutional interpretation, substantial public interest, and one needing clarification and development of the law. Our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1), (3), (4), & (5) (2006).
In the first and second points on appeal, Appellants contend that the circuit court erred in denying the motion to dismiss because all of the claims arising out of Preston’s disenrollment are outside the circuit court’s subject-matter jurisdiction. In its order, the circuit court concluded that there was insufficient information to conclude that Calvary Christian, as a matter of law, was a “religious institution entitled to the protections and immunities of the First and Fourteenth Amendment.” The circuit court further ruled that “exceptions to absolute immunity exist. These exceptions include instances wherein the Court may resolve the dispute through the application of neutral principles of law and where the conduct at issue affects the public morals, welfare and safety.”
Our court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs 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.; Ark. R. Civ. P. 8(a)(1) (2006).
To support the position that the circuit court was without jurisdiction to rule on the claims arising out of Preston’s disenrollment, Appellants contend that religious, educational institutions have a constitutionally protected right to be free from civil court interference. Their argument is rooted in the U.S. Supreme Court’s decision Watson v. Jones, 80 U.S. 679 (1871). In Watson, the Court first considered the issue of judicial involvement in a hierarchical church’s property dispute. Specifically, the Court was asked to determine which sect of the church had control over church property. As a result of the Court’s holding that the civil courts were not allowed to interfere in the property dispute, this case became the landmark case for the principle that the judiciary cannot inquire into church matters — it is simply without jurisdiction to do so. The Court held, in part:
All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
Id. at 729. Since Watson, the Supreme Court has dealt with a gamut of cases concerning the issue of when civil courts have jurisdiction to determine church-disputes. Bouldin v. Alexander, 82 U.S. 131 (1872); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929); Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North Am., 344 U.S. 94 (1952); Presbyterian Church v. Mary Elizabeth Blue Hull Mem. Church, 393 U.S. 440 (1969); Serbian Eastern Orthodox for the United States of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976); and Jones v. Wolf, 443 U.S. 595 (1979). Yet, all but one of these cases, Serbian Eastern Orthodox for the United States of America & Canada v. Milivojevich, supra, dealt with church property disputes. In sum, the steadfast rule announced by the Court was that unless “neutral principles of law” apply, judicial scrutiny of ecclesiastical doctrine is banned under the First Amendment. This settled rule of law, however, has since been diluted with the Court recognizing the possibility of civil court review. In Gonzalez v. Roman Catholic Archbishop of Manila, supra, the Court stated:
In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.
Id. at 16-17. Thereafter, however, the Court retracted its “fraud, collusion, or arbitrariness” exception, noting that is was only dictum. In Serbian Eastern Orthodox for the United States of America & Canada v. Milivojevich, supra, the Court noted:
Whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “arbitrariness” exception — in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations — is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of a hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.
Id. at 713. As a result, the Court has eliminated the “arbitrariness” exception to the rule that civil courts are prohibited from adjudicating religious disputes. The Court, however, has not revisited the issue of whether civil courts can review ecclesiastical decisions for “fraud” or “collusion.”
In light of these holdings set forth in Watson and its progeny, a number of related issues have been raised and developed in the federal circuits and in state courts. For instance, the federal courts have addressed the issue of whether the “neutral principle” doctrine applies to Title VII claims. McDowell v. Calvin Presbyterian Church, 397 F.3d 790 (9th Cir. 2005); Bryce v. Episcopal Church in the Diocese of Colorado, 121 F.Supp. 2d 1327 (2000); and Smith v. The Raleigh District of the North Carolina Conference of the United Methodist Church, 63 F.Supp. 2d 692 (E.D.N.C. 1999). Likewise, state courts, and federal courts in diversity cases, have been asked to decide whether the “neutral principle” doctrine applies to state breach-of-contract and tort claims. El-Farra v. Sayyed, 365 Ark. 209, 226 S.W.3d 792 (2006); Guinn v. Church of Christ of Collinsville, supra; Williams v. Gleason, 26 S.W.3d 54 (Tex. Ct. App. 2000); Drevlow v. Lutheran Church, 991 F.2d 468 (8th Cir. 1993); Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); and Paul v. Watchtower Bible & Tract Soc’y of New York, Inc., 819 F.2d 875 (9th Cir. 1987). See also Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). With so many federal and state courts weighing in on the issue, it is no surprise that a split of authority has developed. With respect to state breach-of-contract and tort claims, some courts have ruled that where an ecclesiastical issue underlies some of the claims, such as a breach-of-contract claim, all of the claims should be dismissed, thereby precluding the civil court from exercising jurisdiction over any of the claims. For instance, in Gaston v. Diocese of Allentown, 712 A.2d 757 (Pa. 1998), the appellants, students at a catholic school, were expelled. The Diocese of Allentown Department of Education ratified the expulsion. Appellants sued the Diocese of Allentown and the principal in tort for negligence and intentional infliction of emotional distress. The trial court dismissed the complaint on jurisdictional grounds, “stating that the action was an attempt to involve civil courts in ecclesiastical rule, custom or law, as upheld and affirmed by a bishop of the Roman Catholic Church.” Id. at 758. The Pennsylvania Supreme Court affirmed, and dismissed the entire case for lack of jurisdiction. On the other hand, the Eighth Circuit Court of Appeals in Drevlow v. Lutheran Church, supra, dismissed only the claims that directly related to ecclesiastical issues and permitted the remaining claims to proceed to trial. Id. In Drevlow, supra, Drevlow was an ordained minister within the Synod. As one of its services to church members, the Synod prepared and circulated personal information files on its ministers to churches interested in hiring pastors. The Synod placed a document in Drevlow’s file stating that his spouse had been previously married, which statement was untrue. As a result, Drevlow alleged that he was injured because churches within the Synod automatically disqualify ministers if their file reflects that their spouse has been divorced. Drevlow filed a suit against the Synod for libel, negligence, and intentional interference with his legitimate expectancy of employment. The district court granted summary judgment, finding that all the claims involved matters that should be strictly between the clergy and the .church. Thus, all of the claims were dismissed for a lack of subject-matter jurisdiction. In reversing the district court’s decision, the Eighth Circuit Court of Appeals concluded in part:
The First Amendment proscribes intervention by secular courts into many employment decisions made by religious organizations based on religious doctrine or beliefs. Personnel decisions are protected from civil court interference where review by civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. See Milivojevich, 426 U.S. at 717-20, 96 S.Ct. at 2384 (review of church decision to defrock Bishop impermissible where resolution required interpretation of internal church procedures); Scharon, 929 F.2d at 363 (resolution of Title VII and ADEA claims required impermissible inquiry into the good faith of position asserted by clergy-administrators); Kaufmann v. Sheehan, 707 F.2d 355, 358 (8th Cir. 1983) (priest’s claim that church officials denied him ecclesiastical due process and violated his canonical rights goes to the heart of internal church faith and discipline); Knuth v. The Lutheran Church Missouri Synod, 643 F.Supp. 444 (D. Kan. 1986) (court lacks subject matter jurisdiction to review removal of minister from clergy roster). The First Amendment does not shield employment decisions made by religious organizations from civil court review, however, where the employment decisions do not implicate religious beliefs, procedures, or law. See Scharon, 929 F.2d at 363 n.3 (and cases cited therein).
At the present stage of this litigation we are unable to predict that the evidence offered at trial will definitely involve the district court in an impermissible inquiry into the Synod’s bylaws or religious beliefs. Drevlow has alleged that although over three hundred congregations were in need of a pastor he did not receive an offer of employment from any congregation while the Synod was circulating false information about his spouse. Drevlow’s fitness as a minister is not in dispute because his name was on the Synod’s roster of eligible ministers during the relevant period. Correspondence between the Synod President and Drevlow indicates that after the false information was removed from his file, Drevlow did receive an offer and is now a pastor. Drevlow claims that he was injured by the Synod’s alleged libel, negligence, or intentional interference with his legitimate expectation of employment. The Synod has not offered any religious explanation for its actions which might entangle the court in a religious controversy in violation of the First Amendment. [Footnote omitted.] Drevlow is entitled to an opportunity to prove his secular allegations at trial.
On remand, the district court must exercise care to ensure that the evidence presented at trial is of a secular nature. The court has expressed concern that it may become entangled in inherently religious determinations of Drevlow’s fitness for the ministry if Drevlow attempts to offer evidence at trial of other efforts by the Synod to impugn his fitness for pastoral office. It is incumbent upon the court to limit the evidence at trial in order to avoid determining religious controversies. If further proceedings reveal that this matter cannot be resolved without interpreting religious procedures or beliefs, the district court should reconsider the Synod’s motion to dismiss.
Drevlow v. Lutheran Church, 991 F.2d at 471-72 (internal citations omitted). We are persuaded by the Eighth Circuit’s analysis in Dreulow, supra. Accordingly, only those claims in the instant case which relate directly to religious doctrine or beliefs will be protected from civil court interference.
The Huffstuttlers filed claims for breach of contract, intentional interference with a contract, outrage, and defamation. After a review of each individual claim, we conclude that the circuit court lacked subject-matter jurisdiction to address the claims for breach of contract and intentional interference with a contract, as well as any claim for outrage arising out of Preston’s disenrollment. The record reveals that Calvary Christian disenrolled Preston due to his parents’ failure to comply with the Matthew 18 Principles, principles that were expressly adopted by Calvary Christian in its handbook as the approved procedure for handling conflict. In fact, the Huffstuttlers signed a student/family intent form, which stated in relevant part:
The signing of this document represents a visible and willful bond between the Huffstuttler family and Calvary Christian School.
Before entering a student in any aspect of the school’s program, which includes any day care through twelfth grade, several basic aspects relative to the philosophy and intent of the school must be agreed upon by the enrolling family and the school body.
By signing this document the family understands that:
2) The integration of Christian world views and application of biblical principals [sic] is required in every course and activity of the school program.
Furthermore, the family agrees:
1) To respect the statement of faith of Calvary Christian School.
2) To verbally and authoritatively support the individual teachers, their classroom rules ....
3) To carefully determine to use the Matthew 18 principle of reconciling differences by first conferring with the most immediate staff member related to the incident in question, and then only pursuing the proper, progressive chain of authority when matters are not acceptably resolved.
During the dispute between the Huffstuttlers and Calvary Christian, the Huffstuttlers recommitted to adhering to the school’s policies and procedures by signing a new agreement, which stated in part, “The family agrees to support the policies, procedures, staff, and administration of [Calvary Christian]. We will not make any negative comments that could possibly destroy the ministry and unity of [Calvary Christian].” The disenrollment letter, sent to the Huffstuttlers seven days later, specifically stated:
As you know, we met with you recently for a conference due to concerns the school had about comments made, and it was discussed with you the conditions under which Preston would be allowed to continue as a student of Calvary Christian School without interruption. At that time, each of you signed an agreement to support the policies, procedures, staff, and administration of the school. A copy is attached to this letter although you should be aware of its contents.
Since then, the school has learned that you violated the terms of this agreement. Additionally, the school has a philosophy, based on Biblical principles, to cooperate with the home in the education of the child. The comments and actions of the last several days indicate that the school cannot fulfill this philosophy in the case of Preston. The school is also concerned that comments that have been made may be defamatory. After careful review of all the circumstances involved, the school board has determined that the school is no longer in a position where it can continue the enrollment of Preston.
A review of this information reveals that the school disenrolled Preston because his parents failed to comply with school policies, which are rooted in Matthew 18 principles. Any analyses of whether the school breached or interfered with its agreement with the Huffstuttlers would require us to determine whether the Huffstuttlers did, or did not, comply with Matthew 18. Likewise, the outrage claim arising out of Preston’s disenrollment would require a similar determination. In contrast, the Huffstuttlers’ other claims survive because, even if the school had not disenrolled Preston, he could have filed a lawsuit against the school, alleging the tort of defamation and the tort of outrage based on allegations of surveillance at the school. Thus, we hold that the claims for breach of contract and intentional interference with a contract, as well as the claim for outrage arising out of Preston’s disenrollment, are outside the purview of tbe circuit court’s subject-matter jurisdiction.
Appellants next contend that the circuit court erred in denying their directed-verdict motion on the remaining outrage claim arising out of the surveillance allegations. We agree. A motion for directed verdict is a challenge to the sufficiency of the evidence. In addressing the sufficiency issue, we first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Id. A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Id. Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id. It is not this court’s province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id. Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or another with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Id.
To establish a claim for outrage, a plaintiff must demonstrate the following elements: (1) the actor 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 actions of the defendant 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. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000)(citing Angle v. Alex ander, 328 Ark. 714, 945 S.W.2d 933 (1997)). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Id. This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Id. Merely describing the conduct as outrageous does not make it so. Id. Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Id. We have taken a strict approach in determining the validity of outrage claims, and recognized that “the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life.” Id.
Based upon the evidence presented at trial, the circuit court should have granted the motion for directed verdict on the outrage claim. In this case, the evidence supports the fact that there was a video camera present in Preston’s classroom where he and other students occasionally changed clothes for other school events. The record, however, does not reflect any evidence that the video camera ever recorded any footage at the school. The essence of Preston’s outrage claim is that the school could have used the camera to record him as he changed clothes. Yet, based upon our strict approach in claims for outrage, the mere possibility that the school could have taped him does not support a claim for outrage.
In cases where this court has affirmed a claim for outrage, outrageous conduct occurred. For instance, in Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), we affirmed the award of compensatory and punitive damages where the defendant, motivated by personal animosity, carried on a two-year campaign to cause plaintiffs discharge as a police officer by having plaintiff watched, and by filing false reports with plaintiffs supervisors. Likewise, in Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), we affirmed compensatory and punitive damages for outrage. In that case, the cemetery owners constructed a french drain and in the process drove heavy equipment across several gravesites, which exposed the vaults of the plaintiffs deceased relatives. Upon affirming the damages, we emphasized that the construction company had alternative means to accomplish the drainage project that would not have involved the desecration of the graves. Id.
The point is that there is a fine line between intentional conduct that could have been outrageous if it had occurred and conduct that is outrageous because it did occur. Because there was no evidence that the video camera ever recorded any activity at the school, much less that it ever recorded Preston disrobing, this case falls in line with cases where the conduct could have been outrageous if it had occurred. Absent any proof of actual surveillance, the circuit court erred in failing to grant the directed-verdict motion on the outrage claim. We therefore reverse the circuit court on this point.
Appellants also assert that the circuit court erred in denying their directed-verdict motion on Preston’s defamation claim. In order to establish his claim for defamation, Preston had to prove that (1) he sustained damages, (2) that Appellants published a false statement concerning him, (3) that the statement of the fact was defamatory, (4) that Appellants acted with knowledge that the statement was false, and (5) that the publication of the statement was a proximate cause of damages. AMI Civ. 2006, 407. In explaining a claim for defamation, we have stated that a plaintiff must establish actual damage to his reputation, but the necessary showing of harm is slight. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). A plaintiff must prove that the defamatory statement(s) have been communicated to others and that the statements have detrimentally affected those relations. Id. The law does not require proof of actual out-of-pocket expenses. Id.
The Huffstuttlers claimed that Suzanne Hess called Preston a “liar” after he located the video camera in the classroom, and she later accused him of engaging “in vulgar and lewd behavior” by giving her the “finger” at a football game. With regard to the video camera, Ms. Hess at first denied the existence of the video surveillance system to several individuals at a parent-teacher conference. She and the other Appellants eventually recanted and admitted that the video camera was placed in the ventilation system by one of the school’s board members, M.C. “Buddy” Lewellen, Jr. With regard to the alleged “finger” incident, Preston claimed that Ms. Hess defamed him when she told people that he gave her the “finger” at a football game. Specifically, Ms. Hess testified that she had a photo of what she perceived to be Preston giving her the “finger.” While she no longer had the photo, Ms. Hess admitted telling the school board and the other high school principal, Alan Jackson, that she had a photograph of Preston “giving her the finger” at a school function. According to Preston’s mother, Mr. Jackson called her to tell her that Ms. Hess had a photo of Preston giving her the “finger.” Again, no photo was ever shown to the Huffstuttlers or produced at trial. Reviewing the evidence in the light most favorable to Preston, we cannot say that the evidence is so insubstantial as to require the jury’s verdict on his claim for defamation to be set aside. We affirm the circuit court’s denial of the directed-verdict motion on Preston’s defamation claim.
In reviewing the jury’s award of compensatory damages on Preston’s defamation claim, we have said, “When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorable to the Appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury.” Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). “The standard of review in such a case is that appropriate for a new trial motion, i.e., whether there is substantial evidence to support the verdict.” Id. (citing Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003)). Turning to the issue of punitive damages, when reviewing such an award, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). Punitive damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another. Id.
Under this argument, Appellants contend that Preston’s defamation claim “centers on an alleged photograph,” but that “no one testified that they saw the picture and thought less of Preston as a result of it.” Appellants misapprehend the scope of Preston’s defamation claim. One of the bases for his defamation claim was Ms. Hess’s statement to others at Calvary Christian that she had a photo of Preston engaging in vulgar and lewd behavior by giving her the “finger” at a football game. A separate basis for the claim involved statements made by Ms. Hess in which she denied the existence of a video surveillance camera after Preston reported his discovery of the video camera to school authorities. Moreover, Appellants’ arguments concerning the jury’s award of damages on Preston’s defamation claim are merely conclusory. It is well settled that conclusory arguments, without supporting authority, will not be considered on appeal. Fred’s Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005); Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
Affirmed in part; reversed and dismissed in part.
Brown, J., concurring in part; dissenting in part.
Glaze and Dickey, JJ., dissenting.
The record reveals that, for every new academic school year, the HufFstutders completed a reenrollment form, in which they agreed to comply with the school’s policies.
In Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 773 n.18 (Okla. 1989), the Oklahoma Supreme Court noted that the Supreme Court had addressed civil-court inquiry into ecclesiastical decisions made by hierarchical churches, but that the Court had not yet addressed the issue in the context of a self-governing church which is congregational in form. The Oklahoma Supreme Court concluded that a religious organization’s ecclesiastical decisions should be protected from judicial scrutiny whether the organization is “congregational” or “hierarchical.” We agree that ecclesiastical or doctrinal decisions made by self-governing religious organizations are no less deserving of judicial deference than decisions made by religious organizations structured in a hierarchical fashion.
Appellants also rely upon the Supreme Court’s decisions in Everson v. Bd. of Ewing Township, 330 U.S. 1 (1947) and Cantwell v. Connecticut, 310 U.S. 296 (1940),but those cases are inapposite. In Everson, the appellee, a township board of education, authorized reimbursement to parents, in accordance with a statute, for money expended by them for their children’s bus transportation. A taxpayer filed suit, challenging the right of the board to reimburse parents of parochial school students. The Court affirmed the New Jersey Supreme Court’s holding, finding that the statute did not conflict with either the state or federal constitution. In Cantwell, the appellant was criminally prosecuted under a breach-of-the-peace statute when he played a phonograph record entitled “Enemies,” an attack on the Catholic religion, within the hearing of two Roman Catholic men. The Court overturned Cantwell’s conviction as violative of the First Amendment, concluding that the intangible harm caused by Cantwell’s religious beliefs were insufficient to justify civil or criminal liability. While both of these cases do support the proposition that the government cannot restrain religious freedom, neither case involved a religious institution.
‘Appellants’ reliance on the Arkansas Court of Appeals’ decision in Key v. Coryell, 86 Ark. App. 334, 185 S.W.3d 98 (2004), is misplaced. In that case, the mother of a student formerly enrolled at parochial school brought suit in tort and for breach of contract. The court of appeals affirmed dismissal of the complaint on the merits, not for lack of subject-matter jurisdiction.
The Virginia Supreme Court and other federal courts have recognized the “ministerial exception” to the “neutral principles” doctrine in cases where aggrieved ministers have filed suit against religious institutions. Jae-Woo Cha v. Korean Presbyterian Church of Washington, 262 Va. 64 (2001); Rayburn v. General Conference of Seventh-Day Adventists, 722 F.2d 1164, 1167-98 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986); Weft v. Dester Sw. Annual Conference, 377 F.3d 1099, 1100 n.1 (9th Cir. 2004); Bollard v. Calif. Prov. of the Soc'y of Jesus, 196 F.3d 940, 950 (9th Cir. 1999); Lewis v. Seventh Day Adventist Lake Region Conference, 978 F.2d 940, 942 (6th Cir. 1992), and Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1577 (1st Cir. 1989).
The Huffstuttlers claim that the school has no constitutional protection because it is not affiliated with a church or other religious organization. However, an unaffiliated parochial school is similar to a congregational or self-governing church. Here, Calvary Christian operates on Biblical principles and is self-governing and thus answers to no other religious organization. While the Supreme Court has yet to address the issue in the context of self-governing religious institutions, such as parochial schools, we conclude that such institutions are entitled to the same constitutional protection afforded to hierarchical religious institutions. Guinn v. Church of Christ of Collinsville, supra. The circuit court erred in holding otherwise.
Contrary to the dissent’s suggestion that we have usurped the role of the jury, the jury’s verdict in favor of Preston on his claim for outrage is not supported by evidence that compels a conclusion one way or another with reasonable certainty; that is, the verdict is based on sheer speculation and conjecture. Specifically, the verdict depends on a series of inferences drawn from the mere fact that a video camera was located in Preston’s classroom: first, the camera was operable; second, that it recorded activity in the classroom; and finally, in the dissent’s own words, “that Preston was filmed whilst in a state of undress.” Such attenuated inferences, amounting to nothing more than speculation, do not satisfy our requirements of clear-cut proof in outrage cases. Hess v. Treece, supra; Growth Properties I v. Cannon, supra.
We also note that there was no evidence of any criminal charges being filed as a result of the alleged surveillance at the school.
Appellants also seek reversal on Dorma’s defamation claim. Specifically, Dorma alleged that Ms. Hess defamed her when she called her “Satan.” Moreover, Mark Main, a school coach, testified that Ms. Hess called Dorma a “devil woman.” In addition, Ms. Hess herself testified that it was a possibility she referred to Dorma as “Satan” in the presence of others. At the oral argument, however, the Huffstutders conceded the merits of Appellants’ argument for reversal basedonourcase law that prohibits the award of punitive damages when there is no award of compensatory damages. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). The jury awarded Dorma punitive damages but failed to award her any compensatory damages. | [
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Per Curiam.
Appellant Eric Lavel Murray, by and through his attorney, has filed a motion for rule on clerk. His attorney, Richard R. West, 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 clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we stated 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.” Id. at 116, 146 S.W.3d at 891. We explained
Where an appeal is not timely perfected, either the party or attorney fihng 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. West 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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Jim Hannah, Chief Justice.
Beverly Enterprises-Arkansas, Inc., d/b/a Batesville Nursing and Rehabilitation Center, petitions this court under Ark. Sup. Ct. R. 6-1 for a writ of certiorari and a writ of prohibition. Beverly argues that a writ of certiorari should issue to correct the circuit court’s abuse of discretion in ordering Beverly to post a $25,000,000 supersedeas bond before it may appeal an order of class certification. Beverly further argues that a writ of prohibition should issue to prohibit the circuit court from any further action to enforce its order to post a supersedeas bond. We grant the petition for a writ of certiorari and the petition for a writ of prohibition becomes moot.
Upon successfully moving for certification under Ark. R. Civ. P. 23, and before the order of certification was entered, plaintiff Annette Thomas filed a Motion for Protection of Members of Class During Pendency of Anticipated Appeal. By that motion, Thomas sought an order under Ark. R. App. P. — Civ. 8 that Beverly post a supersedeas bond to protect any recovery that class-action plaintiffs might obtain at the subsequent trial of the matter. Thomas asserted that Beverly was financially unstable and that action had to be taken to preserve assets or the class would have no source from which to seek a recovery. The circuit court granted the motion and request for a supersedeas bond on the basis of Beverly’s “uncertain financial status and the multitude of claims” to “ensure that the members of this class have the maximum protection the law allows.” The circuit court ordered the bond to “provide proper security” during the course of the appeal of the order of class certification.
“A supersedeas is a written order commanding appellee to stay proceedings on the judgment, decree or order being appealed from and is necessary to stay such proceedings.” Ark. R. App. P.-Civ. 8(a). The order appealed from that gave rise to the order to post a supersedeas bond was a class-certification order. A class-certification order is an order declaring that the requirements of Ark. R. Civ. P. 23 have been met and the action may proceed as a class action. Beverly did not seek a supersedeas and has not sought to stay proceedings in the circuit court. Rather, Beverly has appealed the class certification as allowed under Ark. R. App. P.-Civ. 2(a)(9).
It is Thomas who filed the Motion for Protection of Members of Class During Pendency of Anticipated Appeal seeking to impose a supersedeas bond on Beverly under Rule 8. A supersedeas bond sought under Rule 8 pertains to protection of a judgment that awards monetary or injunctive relief. Under Ark. R. App. P.-Civ. 8(c):
[w]henever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires ... to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal. . . .
When the circuit court granted the request for the supersedeas bond under Rule 8, there was no judgment for monetary or injunctive relief to be protected by a supersedeas bond. “The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal.” Bailey v. Delta Trust & Bank, 359 Ark. 424, 439, 198 S.W.3d 506, 518 (2004). A supersedeas bond required under Rule 8 is not imposed to protect appellees against alleged financial instability of an appellant prior to an entry of judgment for damages that might never be obtained. In the present case, there was no judgment for damages on which to stay execution. The case is yet to be tried. The circuit court erred in granting the request for a supersedeas bond under Rule 8.
We note that the parties cite to Ballard v. Clark County Circuit Court, 347 Ark. 291, 61 S.W.3d 178 (2001) (per curiam). However, in Ballard, petitioners were non-parties to a settlement of a class-action suit and were attempting to collaterally attack the settlement. In Ballard, there was a judgment for damages to protect; therefore, a supersedeas bond was proper. Reliance on Ballard in the present case is misplaced.
Having agreed with Beverly that the circuit court erred in ordering the posting of a supersedeas bond, we must address Thomas’s assertion that even if the circuit court abused its discretion, the issuance of a writ of certiorari is not procedurally correct in this case. Certiorari is available in the exercise of this court’s superintending control over a tribunal that is proceeding illegally where no other adequate mode of review has been provided. Lenser v. McGowan, 358 Ark. 423, 191 S.W.3d 506 (2004). See also Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000). It applies where the proceedings are erroneous on the face of the record and where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion. Ark. Dep’t of Human Servs. v. Mainard, 358 Ark. 204, 188 S.W.3d 901 (2004). A manifest abuse of discretion is discretion exercised improvidently or thoughtlessly and without due consideration. Jones Rigging & Heavy Hauling, Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002). Certainly there was a plain, manifest, clear, and gross abuse of discretion in ordering that a bond be posted where Rule 8 provides for no such bond.
Still, Thomas argues that even if the court abused its discretion, a writ of certiorari is not available if there is an adequate remedy by appeal. Mainard, supra. Beverly could raise the issue on appeal should a judgment be entered. An appeal from a final judgment also brings up for review any intermediate order. Ark. R. App. P.-Civ. 2(b). However, the injury Beverly complains of is having to provide a bond prior to judgment. Thus, by the time the issue could be reviewed after a judgment is entered, the bond will have served the improper purpose of protecting a judgment that had not been entered, and the injury will be done. Further, if Beverly prevails at trial, it will have no need to appeal and will have been injured to no purpose. In short, the right of appeal is not an adequate remedy under these facts. We grant the petition for a writ of certiorari and reverse the circuit court’s order that a supersedeas bond be posted.
Beverly also seeks a writ of prohibition to stop the circuit court from taking action to enforce the order to provide a supersedeas bond. This issue is moot because we reverse the circuit court’s decision to impose upon Beverly the obligation of a supersedeas bond.
Petition for writ of certiorari granted; petition for writ of prohibition is moot. | [
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Per Curiam.
Appellant, Perry Joshua, has filed a motion for rule on clerk. Appellant filed the motion on August 15, 2006, and the record was refused because the notice of appeal was filed more than thirty days after appellant’s judgment and conviction order was entered, as required by Ark. R. App. P. - Crim. 2(a)(1). For this reason, we treat appellant’s motion for rule on clerk as a motion for belated appeal. We grant appellant’s motion and refer the matter to the Committee on Professional Conduct.
The order from which appellant seeks to appeal was entered on December 20, 2005. Appellant filed his notice of appeal on January 23, 2006. Appellant now requests a motion for rule on clerk because the clerk refused to accept the record, as the notice of appeal was tendered outside the thirty-day time period required under Ark. R. App. P. — Crim. 2(a)(1). Appellant’s counsel took full responsibility for the untimely filing of the notice of appeal and requested the case to proceed in the usual manner.
This court recently clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There, we said:
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 filing 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. at 116,146 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. However, where a motion seeking relief from failure to perfect an appeal is filed and it is not plain from the motion, affidavits, and record whether there is attorney error, the clerk of this court will be ordered to accept the notice of appeal or record, and the appeal will proceed without delay. See id. At that time, the matter of attorney error will be remanded to the trial court to make findings of fact. See id. Upon receipt of the findings by this court, it will render a decision on attorney error. See id.
In this case, appellant’s attorney acknowledges that the notice of appeal was untimely and assumes full responsibility for failing to perfect the appeal. Therefore, we grant the motion for belated appeal, and the complete record should be filed with our clerk within thirty days from the date of this per curiam order. At that time, a briefing schedule will be set. See Miller v. State, 367 Ark. 187, 238 S.W.3d 608 (2006).
Motion granted. | [
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Per Curiam.
The record in this case has been refused because the notice of appeal was filed more than thirty days after appellant’s judgment and conviction order was entered, as required by Ark. R. App. P. - Crim. 2(a)(1).
The court clarified its treatment of motions for rule on 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.” 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 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. Bennett acknowledges that the notice of appeal was untimely, and he has filed an affidavit assuming full responsibility for the error. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
In the fall of 2002 and the spring of 2003, Appellant Nealjester (Jester) cut and thinned timber from a 300-acre tract of land that was owned by Universal Leasing Corporation (Universal). Although Jester claimed that, at the time, he believed that he was acting under the authorization of Rob Wilson, the owner of Universal, a jury convicted Jester of first-degree criminal mischief. He was sentenced to pay $10,500 in fines and $180,000 in restitution. Jester now raises five points for reversal. We affirm his conviction.
For his first point on appeal, Jester claims that the circuit court erred in failing to grant his motion for directed verdict at the close of the prosecution’s case in chief. We treat an appeal from the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Moreover, we must consider sufficiency challenges first in order to protect Jester’s rights against double jeopardy. George v. State, 356 Ark. 345, 350, 151 S.W.3d 770, 772 (2004). When 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. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We will affirm a conviction if substantial evidence exists to support it. Id.
In Arkansas, a person is guilty of criminal mischief in the first degree “if he or she purposely and without legal justification destroys or causes damage to . . . [a]ny property of another.” See Ark. Code Ann. § 5-38-203 (Supp. 2003). Here, Jester argues that only speculation and conjecture could allow the jury to conclude that he had the requisite mens rea to be found guilty of criminal mischief. We disagree.
The facts reveal that Rob Wilson was set to inherit 300 acres of woodlands after his mother passed away in May of 2002. In October of 2002, Jester approached Wilson and asked if the land was for sale. Wilson told Jester that his mother’s estate was not final, but that he would consider selling the property to Jester when that time came. In subsequent conversations, Wilson gave Jester permission to deer hunt on the land and authorized Jester to construct a small hunting camp.
At one point in time, Jester informed Wilson that there were a large number of pine beetles on the property and that he was losing a lot of trees. According to Jester, Wilson told him to “go ahead and do what you think needs to be done. Treat it like your own.” After this conversation, Jester used a bulldozer to make roads throughout the property and then began to harvest the trees. During deer season, Jester stopped logging so that he and his family could hunt and socialize around the deer camp. Once deer season was over, however, Jester finished harvesting the timber. Overall, Jester contends that he treated the property as his own because Wilson gave him permission to do so. Apparently, Jester understood that he would purchase the property as soon as Wilson received it from his mother’s estate. According to Jester, Wilson said, “If you want it, Neal, it’s yours.”
Ultimately, Wilson put the land up for sale for $330,000. While the property was on the market, Brady Auld, a certified forester, inspected the 300 acres and discovered that a very large percentage of the property had been recently logged. Auld notified Wilson of his findings. In response, Wilson hired Auld to conduct a damage assessment and an investigation to determine who was responsible for cutting the timber without Wilson’s permission.
Wilson also lodged a formal complaint with the Arkansas Forestry Commission. John Murphy, an investigator with the Commission, examined the property and determined that the entire 300 acres had been cut over. In addition, Wilson found a handwritten “no trespassing” sign placed on the property — on the reverse was a sign for Jester Timber Company.
Other witnesses gave testimony regarding the timber’s removal. Cathy Dean, an adjoining land owner, testified that Jester approached her in the fall of 2002, and he asked permission to use her private road in order to set up a hunting club. Dean and her husband, Jerry, denied his request. However, later that winter, Jester told the Deans that he planned on buying the Wilson property and again asked for permission to use the Deans’ private road to haul logs. This time, the Deans agreed.
Next, Donald Fry, another neighboring landowner, testified that he was approached by a man who gave him a card that read Jester Timber Company. The man asked if he could use Fry’s private road to haul timber out of the area for two or three days. Fry agreed so long as he fixed the road once he was done. According to Fry, the hauling lasted approximately 10 days to two weeks, and the loggers never repaired the road.
Finally, Joe Milam, another adjoining land owner, testified that he gave Jester permission to go through his property to get the timber. Milam was aware that Wilson owned the property, but, when asked, Jester said that he was going to buy it. Jester hauled timber through Milam’s property for approximately three to four weeks.
In December of 2002, Jester discovered that Wilson was “pursuing him.” In response, Jester contacted Wilson, confessed to cutting the timber, and attempted to negotiate a deal. When asked why he cut the timber, Jester said that he planned on buying the land, so he went ahead and cut the timber. Jester then asked Wilson how much he wanted for the land, and Wilson replied $330,000, the amount of the asking price. Jester responded by hanging up his telephone.
Later on, Jester sent Wilson a settlement offer for $180,000 in an attempt to resolve the dispute and avoid prosecution; Wilson refused. Ultimately, Jester was charged and convicted of first-degree criminal mischief for the unauthorized logging of Wilson’s property.
It is undisputed that Jester cút the timber off Wilson’s property, but Wilson denied he had ever given Jester permission to remove the timber from his land:
Counsel: Had you ever given Neal Jester any indication by mouth, by paperwork, by contract that he had any authority to cut any timber on that property?
Wilson: No, sir. Timber never was brought up in any of his phone calls. Just the purchase of the property.
In response, Jester contends that Wilson consented to his actions when he told Jester to “treat the land as if it were your own.” According to Jester, he took Wilson’s statement to mean that he had carte blanche permission to strip the entire 300-acre tract of its most valuable asset, the timber.
This court has held that it is within the province of the jury to resolve the issue of the credibility of witnesses. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). Moreover, a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Simply put, the jury was not obligated to believe that Jester was acting under — what Jester believed was — Wilson’s consent. The jury’s verdict is supported by substantial evidence that Jester purposely caused damage to the property without Wilson’s consent, thus, the circuit court did not err in denying Jester’s motion for a directed verdict.
For his second point on appeal, Jester, once again, challenges the sufficiency of the evidence. This time, Jester claims that there was insufficient evidence to support a finding that Wilson was entitled to $180,000 in restitution. It is this court’s job to determine if there is substantial evidence to support this figure, Cluck, supra, and there is.
To begin, the goal of restitution is to make a victim whole. See Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004). In this case, the amount of restitution should accurately reflect the amount of economic loss that Wilson suffered as a result of Jester’s unauthorized logging. Put another way, the restitution should represent the value of the trees as they stood on the property, before they were cut down and before they were transported to the mill.
While there were conflicting figures presented to the jury, there is substantial evidence to support a restitution award of $180,000. Specifically, Wilson estimated his timber loss to be about $180,000 in his complaint that he filed with the Arkansas Forestry Commission, which complaint was introduced into evidence at trial. In addition, Wilson’s expert, Auld, estimated that the remaining property value was worth $150,000, at the high end. That amount deducted from Wilson’s original asking price of $330,000 results in $180,000. Finally, Jester himself offered Wilson $180,000 for the property in hopes to settle the dispute. This offer indicates that Jester, too, considered $180,000 to be a fair value amount for the remaining property. In light of this evidence, we must affirm Jester’s second point on appeal.
For his third point on appeal, Jester sets out four sub-arguments in support of his claim that the criminal mischief statute is unconstitutional as applied to timber cutting cases. The statute in question, Ark. Code Ann. § 5-38-203 (Supp. 2003), provides as follows:
(a) A person commits the offense of criminal mischief in the first degree if he or she purposely and without legal justification destroys or causes damage to:
(1) Any property of another; or
(2) Any property, whether his or her own or that of another, for the purpose of collecting any insurance therefor.
(b) In actions under this section involving cutting and removing timber from the property of another, the failure to obtain the survey as required by § 15-32-101 or the purposeful misrepresentation of the ownership or origin of the timber shall create a presumption of purpose to commit the offense of criminal mischief in the first degree.
(c) Criminal mischief in the first degree is a Class C felony if the amount of actual damage is five hundred dollars ($500) or more. Otherwise, it is a Class A misdemeanor.
(d) In actions under this section involving cutting and removing timber from the property of another, there shall be imposed inaddition to the penalty in subsection (c) of this section a fine of not more than two (2) times the value of the timber destroyed or damaged; provided, however, that in addition to the above, the court can require the defendant to make restitution to the owner of the timber.
In addition, the statute governing the survey requirement, Ark. Code Ann. § 15-32-101 (Repl. 2003), provides in pertinent part:
(a) Any person who desires to cut and remove any timber from any land in this state, unless the land has been surveyed and the boundaries thereof ascertained and known, before cutting and removing the timber, the person shall:
(1) Cause the land to be surveyed and the metes and bounds of the land marked and plainly established;
(2) Rely in good faith on an existing marked line or established corners; or
(3) Acquire a document signed by the landowner selling the timber and signed by the adjoining landowners, indicating that the landowners agree on the location of the boundary.
(d) Any person who shall be found guilty of a violation of the provisions of this section shall be deemed to have committed a misdemeanor and shall be fined, for each offense, in any sum not less than twenty-five dollars ($25.00) nor more than three hundred dollars ($300) and may be imprisoned in the county jail not more than six (6) months.
This court strictly construes criminal statutes and resolves any doubts in favor of the defendant. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). However, we also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999). The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Additionally, statutes relating to the same subject must be construed together and in harmony, if possible. Id.
Jester’s first constitutional sub-argument contends that there is a conflict between the two above-quoted statutes. Specifically, Jester points out that under the survey statute, § 15-32-101, an individual who cuts timber without complying with the survey requirements may be charged with a misdemeanor, fined no more than $300, and sentenced to no more than six months in jail. On the contrary, Jester submits that an individual who violates the criminal mischief statute, § 5-38-201, can be charged with a felony and expose himself to much harsher punishment. According to Jester, the exact same conduct would be a misdemeanor under one statute, but constitute a felony under another statute. In other words, Jester claims that he cannot be constitutionally charged with, and convicted for, a felony offense if the same conduct additionally would constitute a misdemeanor offense.
In direct conflict to Jester’s argument, this court has repeatedly held that when two punishment statutes exist, a court is not prevented from using the more stringent provision. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000); Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). Because the circuit court was not prevented from using the more stringent provision, Jester’s first sub-argument must fail.
Jester, in his second constitutional sub-argument, submits § 5-38-203 (c) is unconstitutionally void for vagueness because it does not specify a penalty. To the contrary, § 5-38-203(c) specifically states, “Criminal mischief in the first degree is a Class C felony if the amount of actual damage is five hundred dollars ($500) or more.” Accordingly, section 203(c)’s use of the term “Class C felony” refers to §§ 5-4-401(a)(4) (Repl. 1997) and 5-4-201(a)(2) (Repl. 1997), which set out the punishment parameters for the various classes of felony convictions. In short, § 5-38-203(c) specifies a penalty through its citation to §§ 5-4-401 and 5-4-201. Thus, Jester’s second constitutional argument must fail.
For his third constitutional sub-argument, Jester argues that § 5-38-203(c) unconstitutionally denies him the right to a trial by jury on one or more facts because it gives the trial court, and not the jury, the power to impose restitution. Specifically, Jester argues that “the statute suggests that the court has the discretion to establish the amount of restitution despite the fact that this is a criminal trial and the defendant has the absolute right to have the jury decide all issues of fact.”
In Ghegan v. Weiss, 338 Ark. 9, 14-15, 991 S.W.2d 536, 539 (1999), this court held the following:
[A] litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them.
Id. (citations omitted). In the present case, Jester had a jury, not a judge, decide the amount of restitution that should be imposed upon him. Therefore, because he could not show a prejudicial impact under the reasoning in Ghegan, supra, Jester had no standing to challenge the constitutionality of § 5-38-203 (c).
Jester’s fourth and final constitutional sub-argument claims that § 5-38-203 is unconstitutionally void for vagueness because “it does not set forth all of the required standards for finding the defendant guilty of specific acts which constitute a crime.” Section 5-38-203’s plain language reveals otherwise. As noted earlier, § 5-38-203 provides in pertinent part that “[a] person commits the offense of criminal mischief in the first degree if he or she purposely and without legal justification destroys or causes damage to ... [a]ny property of another.” In addition, Jester claims that the statute is unconstitutionally vague because it does not define the term “legal justification.” With regard to this argument, Jester fails to expand on either of these assertions, and this court has repeatedly held that it will not research or develop arguments for appellants. See Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004); see also Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005) (holding that we will not consider an argument 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). Given our precedent, it is clear that Jester’s fourth sub-argument must, once again, fail. In sum, Jester has failed in his attempt to show that § 5-38-203 is unconstitutional.
For his next major point on appeal, Jester claims that the circuit court erred in refusing to submit his proffered jury instruction setting forth his definition of the term “legal justification.” We have stated that a party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support the giving of the instruction. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006). However, we will not reverse a circuit court’s refusal to give a proffered instruction unless there was an abuse of discretion. Jones v. State, 336 Ark. 191, 204, 984 S.W.2d 432, 438 (1999). Finally, a circuit court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. Jones, supra.
Jester’s proffered instruction on “legal justification” provided as follows:
To sustain this charge, the State must prove, beyond a reasonable doubt, that Neal Jester did, without a reasonable excuse, destroy or cause damage to property owned by Universal Leasing Corp. In order to sustain this charge, the State must prove, beyond a reasonable doubt, both elements of this crime.
According to Jester, there was evidence in the record that indicated that Wilson instmcted Jester to “treat [the land] as your own.” Jester took this instruction as his “legal justification” to harvest the timber on Wilson’s land.
Jester correctly points out that “justification” is not an affirmative defense that must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it. Anderson v. State, 353 Ark. 384, 404, 108 S.W.3d 592, 605 (2003). Because justification is not an affirmative defense, the State has the burden of negating the defense once it is put in issue. Id. According to Jester, the jury should have been instructed on the definition of justification and informed that it was the State’s burden to disprove its existence.
In response, the State contends that the term “legal justification” is common knowledge and plainly understood and no instruction was needed. Moreover, the State argues that the actual instructions that were given to the jury clearly established the State’s burden of proof with respect to the elements of justification. The instructions read in relevant part as follows: “The State must prove the following things beyond a reasonable doubt: first, that Neal Jester purposely and without legal justification destroyed or caused damage to the property of Universal Leasing Corporation.”
Although the proffered instruction is a correct statement of the law, it is not a model jury instruction and, further, it is unnecessary to give it when its substance is covered by other instructions. See Jones v. State, 336 Ark. 191, 205, 984 S.W.2d 432, 439 (1999); Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990). We cannot say that Jester’s proffered instruction was essential to the jury’s understanding of the State’s burden of proof or its grasp of the term “legal justification.” Thus, we hold that the circuit court did not abuse its discretion in rejecting Jester’s instruction.
For his final point for reversal, Jester argues that it was error for the circuit court to refuse his proffered instruction on mistake of fact. Jester’s proffered his own instruction on “mistake of fact,” which provided as follows:
The defendant has submitted evidence of the defense of mistake of fact. Mistake of fact is an affirmative defense under Ark. Code Ann. § 5-2-206.
The defendant has the burden of proving by a preponderance of the evidence that he was mistaken in his belief of fact that he acted with legal justification to harvest timber on the property in question.
If you find any reasonable doubt on the issue as to whether defendant acted under a mistaken belief in fact you are legally obligated to only consider and decide the defendant’s culpability on the lesser charge of Criminal Mischief in the 2nd degree during your deliberations.
A circuit court does not err by rejecting an instruction that inaccurately states the law. See generally Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006) (holding that a party is entitled to a jury instruction when it is a correct statement of the law) (emphasis added); Dodson v. Allstate Ins. Co., 345 Ark. 430, 459, 47 S.W.3d 866, 886 (2001) (holding that a physician was not entitled to a proposed defamation instruction that contained language regarding defamation per se, which had been abolished). Here, Jester’s proffered instruction is replete with inaccurate statements of law.
First, Ark. Code Ann. § 5-2-206(a) (Repl. 2006) provides that a mistake of fact is a defense, not an affirmative defense, as contended by Jester. Section 5-2-206(a) provides as follows:
(a) It is a defense to a prosecution that the actor engaged in the conduct charged to constitute the offense under a mistaken behef of fact if:
(1) The statute defining the offense or a statute relating to the offense expressly provides that a mistaken behef of fact constitutes a defense; or
(2) Mistaken behef of fact establishes a defense of justification provided by § 5-2-601 et seq.
(Emphasis added.) Unlike mistake of law, which is an affirmative defense according to § 5-2-206(c) , mistake of fact is simply a defense, and the State has the burden of negating that defense once it is put in issue. See Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981) (the State must prove each element of the charge beyond a reasonable doubt, which includes negating a defense once it is put in issue). This analysis is directly contrary to Jester’s proffered instruction, wherein he suggests that mistake of fact is an affirmative defense.
Second, the last paragraph of Jester’s proposed instruction is completely incorrect. The plain language of Jester’s proffered instruction suggests that a defendant who fails to carry his or her burden of proof on an affirmative defense is entitled to have the jury consider only lesser-included offenses. This is an inaccurate statement, and Jester has not made an attempt to prove otherwise. Such a proffered instruction could do nothing but confuse a jury; thus, we hold that the circuit court was correct in refusing it. See Greene v. State, 356 Ark. 59, 146 S.W.3d 871, (2004); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992).
For the foregoing reasons, we affirm.
Arkansas Code Annotated section 5-4-401(a)(4) provides that “[a] defendant convicted of a felony shall receive a determinate sentence according to the following limitations ... For a Class C felony, the sentence shall be not less than three (3) years nor more than ten (10) years.”
Arkansas Code Annotated section 5-4-201(a)(2) provides that “[a] defendant convicted of a felony may be sentenced to pay a fine ... Not exceeding ten thousand dollars ($10,000) if the conviction is of a Class C or Class D felony.”
Arkansas Code Annotated section 5-2-206(c) states:
(c) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute the offense believing that the conduct did not as a matter of law constitute an offense, if the actor acted in reasonable reliance upon an official statement of the law contained in:
(1) A statute or other enactment afterward determined to be invalid or erroneous;
(2) The latest judicial decision of the highest state or federal court that has decided the matter; or
(3)An official interpretation of a public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense.
Notably, the circuit court refused to give Jester’s proffered jury instruction because Jester apparently failed to inform the prosecution during discovery that he planned on using the mistake-of-fact-defense at trial. Jester argues that the prosecution was put on constructive notice of the mistake-of-fact-defense given the contents of the record and its numerous references to the fact that Jester believed that Wilson gave him permission to harvest the timber. Despite this argument, it is clear that the circuit court was correct in refusing to submit Jester’s mistake-of-fact-instruction because it contained inaccurate statements of law. Warr v. Williamson, 359 Ark. 234, 195 S.W.3d 903 (2004) (holding that we will affirm the circuit court when it has reached the right result even though it was based on the wrong reason). | [
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Per Curiam.
Appellant Wilson McCrackin filed a motion for rule on clerk to file his record and have his appeal docketed. The clerk refused to docket the appeal based on a failure to comply with Ark. R. App. P. - Civil 5(b). Rule 5(b) concerns the extension of time within which to file the record and provides:
(1) If any party has designated stenographically 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 in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
See Petras v. State, 363 Ark. 373, 214 S.W.3d 264 (2005); Camp v. State, 362 Ark. 100, 207 S.W.3d 454 (2005).
The circuit judge found that appellant had shown good cause for granting an extension of time, and he extended the deadline to October 1, 2006, or seven months from the date of the judgment and commitment entered on March 1, 2006; however, there is nothing in the order to indicate that “[a]ll parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing,” as required by Ark. R. App. P. - Civ. 5(b)(1)(C).
This court has made it very clear that we expect strict compliance with the requirements of Rule 5(b), and that we do not view the granting of an extension as a mere formality. See Petras, supra. Accordingly, we remand this matter to the circuit judge for compliance with Rule 5(b)(1)(C).
Remanded. | [
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Jim Hannah, Chief Justice.
Justin Anderson appeals his sentence of death by lethal injection. He was convicted of capital murder on January 31, 2002, and sentenced to death. He appealed his conviction and sentence to this court. The conviction was affirmed; however, the sentence of death was reversed and remanded. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Anderson now appeals his sentence of death entered on remand, alleging that the circuit court erred in allowing the deliberating jury to replay the tape recording of his recorded statement in the jury room outside the presence of the court, counsel, and Anderson. He also alleges error in the circuit court’s denial of his motion to exclude victim-impact evidence. We find no error and affirm.
Facts
The sentencing hearing upon remand was moved from Lafayette County to Miller County pursuant to a motion to change venue. All of the events in this case took place in Lewisville, Lafayette County. According to Anderson’s statement, he was depressed and despondent and decided that he would steal a firearm, kill someone, and then force police to kill him.
On October 2, 2000, Anderson broke the back window of a home in Lewisville and entered it in search of firearms. He located and removed two pistols. He then searched for people to kill but first found the opportunity on October 6, 2000, when he entered the cab of Roger Solvey’s tractor-trailer at a convenience store. According to Anderson, he found Solvey in the sleeper and fired multiple shots. Solvey was wounded but recovered. On October 12, 2000, Anderson was walking in Lewisville when he saw eighty-five-year-old Clara Creech working in her garden. Anderson told police that he did not know her, that he just shot her. Anderson was picked up as a suspect that same day and after several hours of questioning, and meeting with his brother, he confessed.
Taped Statement
Anderson argues that the circuit court erred in sending his recorded statement to the deliberating jury. The audiotape of Anderson’s statement had been admitted into evidence and was played for the jury during the trial. He alleges that any playing of the tape by the jury during deliberations violated Ark. Code Ann. § 16-89-125(e) (1987) and his right to be present with counsel. The record does not show whether the tape was ever played by the jury. The tape was not directly requested by the jury. During deliberations, the jury requested the October 23, 1986, psychological report on Anderson’s mother, Ruby Eason. Consistent with the circuit court’s practice, all exhibits including the tape and a tape player were sent into the jury.
Arkansas Code Annotated Section 16-89-Í25:
Deliberation of the Jury
Arkansas Code Annotated section 16-89-125 (1987) discusses jury deliberation and is the current codification of statutes concerning conduct of a jury trial that were enacted in the Criminal Code of 1869. Arkansas Code Annotated section 16-89-125(d)(3) (1987) and section 16-89-125(e) are relevant to our discussion. Arkansas Code Annotated section 16-89-125(d)(3) was originally codified as Section 247 of the Criminal Code of 1869. This section provides that, “[u]pon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.”
What is at issue is a taped statement that was played at trial and admitted into evidence. It was one of the exhibits sent to the jury when it requested the Eason document. What the jury asked for was a paper exhibit. Under section 16 — 89—125(d) (3), the Eason document, being a paper document, was certainly properly made available to the jury by the circuit court. The tape was not a paper document. Although the statute uses the term “papers,” the cases interpreting section 16-89-125(d)(3) do not limit exhibits that may be given to the jury during deliberations to papers. In Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000), we held that it was within the circuit court’s discretion under Ark. Code Ann. § 16-89-125(d)(3), to allow all exhibits, including a hammer, to be given to the jury during deliberations. Arkansas Code Annotated section 16-89-125(d) (3) does not prohibit the jury from receiving and considering all exhibits, including the tape of Anderson’s statement during deliberations.
However, Anderson argues that allowing the jury access to the tape during deliberations was a violation of Ark. Code Ann. § 16-89-125(e). This was enacted as Section 248 of the Criminal Code of 1869 and is identical to Ark. Code Ann. § 16-89-125(e), which provides:
After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they have a desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.
Anderson alleges that under the analysis in Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), Ark. Code Ann. § 16-89-125(e) prohibits sending the tape into the jury deliberations. In Davlin, the jury asked during deliberations to view the videotaped statement of the victim.
The facts of Davlin distinguish it from the present case. In discussing the statute now codified as Ark. Code Ann. § 16-89-125(e), this court said:
The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the State, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties.
Aydelotte v. State, 177 Ark. 595, 603-04, 281 S.W. 369, 372 (1926); see also Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977); Boone v. State, 230 Ark. 821, 327 S.W.2d 87 (1959). The court has more recently stated that the purpose of Ark. Code Ann. § 16-89-125(e) is to protect against misinformation communicated to the jury. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). Thus, the purpose of section 16-89-125(e) is to protect against any further steps being taken with respect to evidence unless done in open court with counsel present. No further step was taken with respect to the evidence against Anderson in this case.
The jury was given the tape they had already heard to replay if they chose to do so. In Davlin, the videotape had portions that were not played at trial:
The record states that the videotape would be replayed in the jury room just as it was at trial, with certain prejudicial portions deleted. However, the record is silent with respect to what actually occurred in the jury room and therefore does not assure us there was a lack of prejudice in the replaying of the tape.
Davlin, 313 Ark. at 221, 853 S.W.2d at 884. Thus, while the proposal was to replay the tape just as it had been played at trial, the record did not show that it was so replayed. In other words, if excluded portions of the videotape were played to the jury, a further step was taken in respect to the evidence in violation of the statute. Strict compliance with Ark. Code Ann. § 16-89-125(e) is required. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990); Rollie v. State, 236 Ark. 853, 370 S.W.2d 188 (1963). Where there is a violation, prejudice is presumed, and it is up to the State to disprove that prejudice. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978). Where it cannot be shown what happened, prejudice is presumed. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).
In Davlin, giving the requested videotape to the jury created the possibility that evidence that was never introduced at trial might be introduced in the jury room. In that case, prejudice had to be presumed because it was impossible to glean from the record whether the prejudicial portions of the tape were deleted as they had been at trial. In the present case, there was no such danger. We hold that there was no violation of Ark. Code Ann. § 16-89-125(e) in this case because the jury received an admitted exhibit where there was no danger of additional evidence being introduced by giving the exhibit to the jury during deliberations.
Critical Stage
Anderson also alleges that if the jury replayed the tape, it constituted a substantial step, or in other words a critical stage in the criminal proceeding against him requiring that he be present with counsel. It is a basic principle of both our state’s and our nation’s constitutional law that a criminal defendant has the right to be present in person and by counsel at any critical stage in his or her case. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Davlin, supra. A criminal defendant has a Sixth Amendment right to an attorney at every critical stage of the proceedings. Hammett v. Texas, 448 U.S. 725 (1980). A criminal defendant has a due process right to be present at critical stages of the proceeding. Kentucky v. Stincer, 482 U.S. 730 (1987). The complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega, 528 U.S. 470 (2000).
A critical stage in a criminal proceeding is every stage where substantial rights of the criminal defendant may be affected. Rhay v. Washington, 389 U.S. 128 (1967). “A critical stage in a criminal proceeding is characterized by an opportunity for the exercise of judicial discretion or when certain legal rights may be lost if not exercised at that stage.” Commonwealth v. Johnson, 574 Pa. 5, 13, 828 A.2d 1009, 1014 (2003).
The dissent argues that Davlin, supra, stands for the proposition that any “representation of evidence” constitutes a substantial step or critical stage in the proceedings and must be undertaken in the presence of counsel and the defendant. That interpretation is not consistent with Davlin or the law. Davlin stands for the proposition that the taking of evidence, or in other words the presentation of evidence to the jury for the first time, constitutes a substantial step and requires the presence of counsel and the defendant. In Davlin, portions of the videotape had been deleted when presented at trial, and the record did not reveal whether the deleted portions were reviewed by the jury in the jury room. If the deleted portions were reviewed by the jury, that would constitute the presentation of new evidence. There is no allegation of additional or new evidence being on the tape in the present case.
Anderson objected to submitting the tapes to the jury during deliberations. He argued that it had to be done in open court with him present and represented by counsel. The circuit court refused and allowed the tapes to go to the jury along with all the exhibits admitted into evidence. If replaying the tapes had constituted the presentation of new evidence, Anderson’s position would be correct because presentation of new evidence is a critical stage. Perry v. Leeke, 488 U.S. 272 (1989). However, there is nothing in the record to show that the jury would have been exposed to anything other than what was already played at trial. Anderson was present with counsel when the tapes were played at trial and had the opportunity to object and be heard at that time. He does not argue on appeal that the circuit court erred in denying his motion to exclude the tapes. There is nothing about replaying the tapes that would have been any more incriminating to Anderson than the incrimination that may have arisen from playing the tapes at trial. Nor was this a step in the proceedings that was critical to the outcome where his presence would have contributed to the fairness of the procedure. Stincer, supra. The jury was simply given exhibits already admitted into evidence. We hold that the jury’s replaying during deliberations audiotapes of an out-of-court statement admitted into evidence and made an exhibit at trial is not a critical stage in criminal proceedings. There was nothing in this case to indicate that Anderson would suffer any new prejudice by the jury’s replaying the tapes.
Victim-Impact Evidence
Anderson raises six issues in arguing that the circuit court erred in admitting victim-impact evidence. First, Anderson argues that the jury considered and applied the victim- impact evidence as an aggravator in violation of Ark. Code Ann. § 5-4-604 (Repl. 1997). In Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004), and in Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998), this court specifically rejected the notion that victim-impact evidence acts as an aggravating circumstance or that it violates the statutory weighing process set out in the capital murder statutes.
However, Anderson makes an argument that the jury was confused and believed that the victim-impact evidence offered constituted an aggravating factor. Pursuant to Ark. Code Ann. § 5-4-604, “[a]n aggravating circumstance is limited to” those set out in the statute. After retiring to deliberate, the jury foreperson presented to the court the following issue and question: “Your Honor, we need a clarification on form three, item B, where we need a clarification for the aggravating circumstances. What do we consider, the Roger Solvey circumstance, the Clara Creech circumstance, or both of them?” The circuit court called a bench conference where the following was discussed:
The Court: As stated, he’s wanting to know what to count as B, aggravating circumstance. Am I correct?
Mr. Marczuk: I think the confusion is because the form has an “s” so they’re thinking there’s more than one aggravating circumstance.
The Court: I thought I eliminated that.
Mr. Marczuk: On some you did.
Mr. Haltom: Is form 1008 what we need?
The Court: It’s a threshold question as to whether we can tell them anything.
Mr. Marczuk: I think the answer is Roger Solvey is the aggravating circumstance. That’s what they’re supposed to consider.
Counsel for Anderson responded that the jury should be told that there is only one aggravating circumstance. The State responded that because the jury was on form 3(b), they had already decided on the one aggravator; therefore, when the deliberations reach form 3(b) the jury is to weigh all the circumstances of the case. The State also argued that to tell the jury to only consider the aggravating circumstance of the attack on Solvey would nullify victim-impact evidence. The circuit court agreed that after the jury has already found on form 1 that the aggravating circumstance exists, they “should be allowed to consider all of the admitted, properly admitted evidence, or else it shouldn’t have been admitted in the first place.” The State characterized the jury’s question as whether in doing the weighing of circumstances for form 3, they may consider both the shooting of Solvey and the murder of Clara Creech. The court then addressed the jury: “Y ou are instructed then, that you may consider all of the evidence and give it whatever weight that you believe appropriate in answering form 3(b), and following.”
In Payne v. Tennessee, 501 U.S. 808 (1991), the United States Supreme Court announced that admission of victim-impact evidence does not offend the federal constitution, and that it is relevant to assist the jury in imposing punishment based on a measurement of the injury to society. When the jury posed the question, it was working on form 3 and asking whether it could consider all the evidence in deciding punishment. The victim-impact evidence was relevant, admissible, and properly submitted to the jury to be weighed against evidence regarding punishment. There is no merit to the argument that victim-impact evidence served as an aggravator.
Second, Anderson argues that even if victim-impact evidence is generally admissible on the issue of punishment, it was improperly admitted in this case where it had no tendency in fact to prove or disprove the aggravating and mitigating circumstances at issue. He alleges that to be relevant, the evidence had to make it more or less likely that he shot Solvey or that the mitigators presented were proven. As already noted, victim-impact evidence is admissible and relevant to the question of the punishment to be imposed as a consequence of the injury caused by the crime. Payne, supra.
Third, Anderson argues that Ark. Code Ann. § 5-4-602(4) conflicts with Ark. Code Ann. § 5-4-603 (Repl. 1997), Ark. Code Ann. § 5-4-604 (Repl. 1997), Ark. Code Ann. § 5-4-605 (Repl. 1997), and the Arkansas Rules of Evidence. Anderson argues more specifically that only aggravating and mitigating circumstances may be considered under these statutes and the evidence code. We disagree. Victim-impact evidence is separately relevant to punishment. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002).
Fourth, Anderson argues that Ark. Code Ann. § 5-4-602(4) invades the judicial prerogative to determine relevance by legislatively deciding what evidence is relevant. Anderson misconstrues the statute. Act 1089 of 1993, which amended Ark. Code Ann. § 5-4-602 to include victim-impact evidence as admissible on the issue of punishment for capital murder, declared that victim impact evidence could be considered. This is consistent with Payne, supra. The statute does not declare what victim-impact evidence is relevant in any given case. That is an issue decided by the court.
Fifth, Anderson argues that Ark. Code Ann. § 5-4-602(4) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments and Article II of the Arkansas Constitution. Anderson fails to develop this argument. This precludes us from considering the issue. Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004).
Sixth, Anderson argues that Ark. Code Ann. § 5-4-602(4) is void for vagueness. This argument has already been specifically rejected, McGehee, supra.
Rule 4-3 (h)
The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), Ark. R. App. P. - Crim. 10(b), and Ark. Code Ann. § 16-91-113 (Repl. 2006). None has been found.
Affirmed.
Corbin and Imber, JJ., dissent.
Title VI, Chapter 6, art. 5, of the 1869 Criminal Code discusses “Conduct of the Jury Trial.” Code of Practice in Civil and Criminal Cases, at 307 (John G. Price Printer 1869).
Code of Practice in Civil and Criminal Cases, § 247, at 312 (John G. Price Printer 1869).
We additionally note that in Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), the trial judge and counsel were present in the jury room and Davlin was not present when the tapewasplayedwhichisalsocontrarytoArk.CodeAnn.§ 16-89-125(e) (1987). Thisfurther distinguishes the Davlin case from the present case.
The dissent distinguishes between evidence that is taken into deliberations when the jury retires and evidence that the jury later requests. It appears that the dissent believes that if evidence is taken into the jury room by the jury as it retires, then any review of that evidence by the jury does not constitute “representation of evidence” under Ark. Code Ann. § 16 — 89— 125 (1987). Conversely, it appears under the dissent’s analysis, that evidence later requested by and given to the jury constitutes “representation of evidence” requiring compliance with Ark. Code Ann. § 16-89-125 (e) (1987). The dissent misses the point. In Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), the court used the term“representation of evidence”; however, in Davlin, the videotape had evidence on it that had not been presented to the jury during trial. Thus, it contained additional evidence, and if that additional evidence was presented to the jury, it constituted the presentation or taking of new evidence, a substantial step and critical stage under constitutional analysis. This required the presence of counsel and the defendant under constitutional analysis and the presence of or notice to counsel under Ark. Code Ann. § 16-89-125.
Mr. Marczuk represented Anderson at trial, and Mr. Haltom represented the State.
Anderson notes that he objected to the word “circumstances” before the jury was instructed, and the court indicated that the singular form of the word would be used. The court instructed the jury that,“the only aggravating circumstance, in this case there’s only one, the only aggravating circumstances that you may consider.” However, the instructions as read included phrases such as “one or more of the listed aggravating circumstances,” and “one or more aggravating circumstance.”
Arkansas Model Criminal Instruction 1008 includes phrases such as “any particular aggravating circumstance.” | [
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Robert L. Brown, Justice.
Appellant John Patrick Dickinson appeals from his judgment of conviction for capital murder and attempted first-degree murder and his sentence to life imprisonment without parole plus twenty years, to be served concur rently. His sole point on appeal is that the circuit court erred in denying his motion to suppress a .40 caliber Glock pistol. We affirm the judgment.
The facts are that in the early hours of May 13, 2004, police officers were dispatched to Rector, where one man, Jewel Cavaness, had been shot to death and another, Brad Hester, had been wounded. The motive, though it is somewhat sketchy, purportedly involved Cavaness’s involvement with Dickinson’s wife. Hester named Patrick Dickinson as the shooter. At the crime scene, Detective Glenn Leach of the Rector Police Department determined from the shell casings that were present that a .40 caliber Glock had been involved in the shooting.
Arkansas State Police Company Commander Rick Dickinson also responded to the call in Rector. Chief Tommy Baker of the Rector Police Department informed him that the survivor, Hester, had named Patrick Dickinson as the shooter. Commander Dickinson recognized the name, because Patrick’s father, Sandy Dickinson, and Commander Dickinson are cousins. Commander Dickinson inquired as to whether Patrick Dickinson’s whereabouts were known, and Chief Baker responded that police officers had Patrick’s house in Marmaduke surrounded and that he appeared to be home.
Commander Dickinson then drove to the home of his cousin, Sandy Dickinson, where they got in Sandy’s truck and drove to Patrick’s house. After knocking on the front door and receiving no answer, Commander Dickinson and Sandy Dickin son walked around the house and retried the door. Patrick Dickinson answered the door, and Commander Dickinson informed him that “something had happened and that someone had said that he was involved and that there were some people that would like to talk to him.” Commander Dickinson advised Patrick that he did not have to talk to anybody about anything, but Patrick had no problem in doing so. Commander Dickinson, Patrick, and Sandy drove in Sandy’s truck to the Marmaduke Police Station.
Special Agent Phil Carter of the Arkansas State Police went to the station from the crime scene, and he went over the Miranda rights form with Dickinson and advised him of his rights. Dickinson signed the waiver-of-rights form around 2:00 a.m., the morning of May 13, 2004, following which Special Agent Carter conducted a taped interview with him. During the interview, Special Agent Carter asked Dickinson whether he would have any problem with the police looking at his .40 caliber Glock, to which Dickinson responded that would be fine, or okay. At the conclusion of the interview, Dickinson left the police station.
Later that morning, shortly after 4:00 a.m., Special Agent Carter went to Dickinson’s home, with Detective Leach and Special Agent Bobby Stabbs of the Arkansas State Police. After knocking on Dickinson’s front door, Dickinson answered and invited them in and the police officers stepped into the living room and told him and his wife, Stephanie, that they were there to interview her and to retrieve the weapon which Dickinson had told them they could have for testing. Dickinson went to his truck by himself, which was parked near his barn, to retrieve his Glock pistol. He did so and brought the pistol over to Special Agent Stabbs who was sitting in Special Agent Carter’s vehicle. The special agent completed a receipt for property, which Dickinson initialed when he turned the gun over to Special Agent Stabbs.
Dickinson subsequently moved to suppress the pistol as evidence based on an illegal search, and the circuit court denied the motion.
Following a trial on charges of capital murder and attempted capital murder, Dickinson was convicted of capital murder and attempted first-degree murder and was sentenced to life imprisonment without parole plus twenty years, to be served concurrently.
Dickinson raises, as his sole issue on appeal, that at no time during the interview, nor at any point thereafter, did any law enforcement officer have him execute a consent to search form, nor did they advise him of his right to refuse consent. He also emphasizes the fact that following his interview, he was released, and that it was at least two hours later when police officers returned to his home without a warrant to interview his wife and to retrieve the weapon. He contends that he merely acquiesced to the police officer’s demand for the weapon and did not consent to a search of his premises or his vehicle.
He further submits that he was not advised of his right to refuse consent to any search of his premises as is required under State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). Acknowledging this court’s holding that Brown was inapplicable to the search of a vehicle in Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005), Dickinson avers that the search in the instant case was not a true search of an automobile, but, instead, was a search of a premises or curtilage, similar to the illegal search in Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). As such, he contends that Brown is applicable and should be applied to the instant situation and that, accordingly, the dock pistol should have been suppressed for failure to appropriately advise him of his rights. He maintains that the police officers’ entry onto his land to obtain potential evidence was, by its very nature, a search, which was warrantless, not justified by any exigent circumstances, and occurred during the middle of the night.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances. See Steinmetz v. State, 366 Ark. 222, 234 S.W.3d 302 (2006). This court reverses only if the circuit court’s ruling denying a motion to suppress is clearly against the preponderance of the evidence. See Welch v. State, supra.
Here, the circuit court concluded that there was no search of Dickinson’s dwelling as defined by this court in its per curiam opinion of November 18, 2004, regarding Arkansas Rule of Criminal Procedure 11.1. In that per curiam, this court, following our decision in State v. Brown, supra, amended Rule 11.1 to provide in subsection (c) that “[a] search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent.” In Re: Rules of Criminal Procedure, Rule 11.1, 359 Ark. Appx. 565, 565 (2004) (per curiam). The order then defined “dwelling” as “abuilding or other structure where any person lives or which is customarily used for overnight accommodation of persons.” Id.
The circuit court disagreed with Dickinson and found in its order denying suppression that the State had proven by clear and positive evidence that Dickinson “freely and voluntarily relinquished possession of his .40 caliber Glock to Agent Bobby Stabbs” and that “[t]here was no actual or implied duress or coercion used by any law enforcement officer [Dickinson] came into contact with which caused [him] to relinquish possession of his gun to Agent Stabbs.” The circuit court found that Dickinson “freely and voluntarily consented to placing his gun in the possession of the Arkansas State Police.”
We agree with the circuit court’s findings and conclusion. The term “search” has been defined by this court’s rules as “any intrusion other than an arrest, by an officer under color of authority, upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance[.]” Ark. R. Crim. P. 10.1(a) (2006). The commentary to Article IV, Rule 10 of the Rules of Criminal Procedure regarding search and seizure, reads that the key word in the definition of “search” is “ ‘intrusion,’ a term sufficiently broad to encompass any legally cognizable interference with an individual’s right to privacy.” Commentary to Article IV, Ark. R. Crim. P. 10 (2006). Further, “the definition of‘search’ is extended to cover any intrusions upon the privacy of an individual.” Id. Likewise, “intrusion,” while not defined by this court’s rules, is defined by Black’s Law Dictionary as “[a] person’s entering without permission.” Black’s Law Dictionary 842 (8th ed. 2004). Here, a review of the totality of the circumstances in the instant case reveals that no such intrusion occurred.
During his interrogation by Special Agent Carter, Dickinson waived his Miranda rights and consented to the police officers’ obtaining his gun on which to perform ballistic testing, as is revealed by the record which included the Miranda rights form and a transcript of the following colloquy:
Special Agent Carter: Okay, and you said, you told me you did have a weapon?
Dickinson: I’ve got... yes... I’ve got a concealed carry permit. I do have a weapon.
Special Agent Carter: Do you have a .40 caliber weapon?
Dickinson: I do have a .40 caliber.
Special Agent Carter: What kind is it?
Dickinson: It’s a Glock.
Special Agent Carter: Where’s it at?
Dickinson: It’s... it’s in the glove box of my truck.
Special Agent Carter: Would you have any problems with us looking at your weapon?
Dickinson: No[.]
Special Agent Carter: Okay, so you would volunteer to let us have your weapon to look at it for a ballistics test?
Dickinson: Sure.
Special Agent Carter testified to the same exchange at the suppression hearing. After reading Dickinson his Miranda rights and having him complete and sign the waiver form,.Special Agent Carter conducted the interview with Dickinson at the Marmaduke Police Station. During that interview, Dickinson agreed to turn over the Glock pistol to police officers, without any coercion by the police:
Prosecutor: Did you ask him then would you had [sic] any problem with us looking at your weapon?
Special Agent Carter: I did ask him that.
Prosecutor: And did he respond that he didn’t have any problem?
Special Agent Carter: Yes, it’d be fine or okay.
Prosecutor: Did you also asking [sic] him next — so you would volunteer to let us have your weapon to look at [it] for ballistics test. Did you ask him that?
Special Agent Carter: Yes, and he said sure.
Prosecutor: Okay. At that point had you advised him of his rights at that point?
Special Agent Carter: Yes.
Prosecutor: And are you doing anything — we can’t tell by the transcript. Are you threatening him or are you striking him, any physical intimidation, any verbal intimidation, any gestures that would be intimidating to force him to do something such as volunteer turning over the weapon to you?
Special Agent Carter: No, he was very cooperative.
When police officers arrived at his home at 4:00 a.m. to question his wife and to obtain the gun to which he had given his consent, Dickinson posed no objection. Senior Special Agent Bobby Stabbs of the Arkansas State Police testified that he went with Special Agent Carter and Detective Leach to Dickinson’s home. He testified as follows:
Phil and Glenn knocked on the door and then some Stephanie [sic] came to the door. And I think Mr. Dickinson come to the door and they had told him that they would like to interview her and asked Rick — or asked not Rick but Patrick if we could have that gun that he had told him in a previous interview from what I understand that they’d let him have. And he said, yeah, he’d get it. And then I went with him. He went — I don’t know if he had to get shoes on or something, but he went to his truck which was parked over by a barn. And I went back to Phil Carter’s vehicle where I sat down in the car and I was filling out what’s known as an ASP-2. It’s a receipt for evidence or property. I started filling out that form and he brought me the weapon over to me.
Based on the total circumstances, we cannot say that an intrusion or search occurred. Dickinson clearly agreed to surrender his weapon to police officers at the Marmaduke Police Station so that they could conduct ballistics testing. He did so after being Mirandized. Moreover, after police arrived at his home, Dickinson himself went and retrieved the gun from his truck without any assistance or coercion by police. In short, no search occurred, which would have warranted advising Dickinson of his right to refuse consent. We affirm the circuit court’s order denying suppression.
The record in this case has been reviewed pursuant to Supreme Court Rule 4-3 (h) for reversible error, and none has been found.
Affirmed.
In its response to Dickinson’s jurisdictional statement, the State urges that this court lacks jurisdiction to consider any claim of error regarding the circuit court’s denial of Dickinson’s motion to suppress, or any other adverse ruling against him, because his notice of appeal does not encompass the May 23, 2005, judgment. Instead, Dickinson’s notice of appeal states that he appeals “the jury verdict entered against him on May 20,2005, finding him guilty of Capital Murder and Attempted First Degree Murder, and further, appeals the sentence of the Circuit Court of Life Imprisonment and Twenty (20) Years Imprisonment, respectively.” The State cites to this court’s decision in Hill v. State, 363 Ark. 505, 215 S.W.3d 586 (2005). The Hill case, however, involved a conditional plea of guilty and Ark. R. Crim. P.24.3(b)’s requirement to appeal the judgment and not the order denying suppression. Here, Dickinson did not enter a conditional plea of guilty Instead, he was found guilty following a jury trial. Thus, Rule 24.3(b) and Hill are inapplicable. Because Dickinson’s notice of appeal clearly appeals his convictions and sentence, we reject the State’s jurisdictional argument.
At the time, Rick Dickinson was the acting commander.
In conducting our 4-3 (h) review, we discovered that the discussion regarding the instructions to be given to the jury was not recorded. We take this opportunity to underscore once more that Administrative Order Number 4, provides, that “ [ujnless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.” Administrative Order No. 4 (2006) (emphasis added). | [
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Donald L. Corbin, Justice.
Appellant LexieMcNabb appeals the remand order of the Faulkner County Circuit Court. On appeal, Appellant raises two arguments for reversal: the trial court erred when it found that (1) the certified copy of the Faulkner County District Court docket sheet was not a record of proceedings within the meaning of Rule 9(b) of the District Court Rules and that the filing of the docket sheet with the circuit court was untimely because it did not comply with Rule 9(b); and (2) it had no jurisdiction to hear Appellant’s appeal from the district court and ordered the case remanded for sentencing or disposition. This case comes to us by certification from the court of appeals, pursuant to Ark. Sup. Ct. R. l-2(b)(l), (4), and (5), as it involves an issue of first impression, an issue of substantial public interest, and a significant issue needing clarification or development of the law. We hold that the circuit court erred in remanding the case to the district court, based upon its conclusion that the certified docket sheet did not constitute a record of the proceedings, and reverse and remand.
On February 24, 2005, Appellant pled no contest to one count of second-degree terroristic threatening in the Faulkner County District Court. On March 18, 2005, after paying for the record of proceedings from district court, Appellant received a certified copy of the docket sheet from the district court clerk. Appellant timely filed the certified docket sheet, as the record of proceedings, with the Faulkner County Circuit Court in order to pursue an appeal of her district-court conviction.
On June 15, 2005, the State filed a motion to remand, seeking to return the case to district court for disposition, based upon its argument that the certified docket sheet was not the record of the proceedings. Specifically, the State argued that there was no transcript before the circuit court because the following items should have been included: the two warrants for Appellant’s arrest, the supporting affidavits, the “Condition of Pre-Trial No Contact Order,” and the reports from the Faulkner County Sheriffs Department. On July 7, 2005, in a letter opinion, the circuit court held that (1) the certified docket sheet was not a record of proceedings or transcript, (2) there was not a timely filed record of proceedings or transcript, and (3) it did not have jurisdiction to hear the appeal. Thus, the circuit court granted the State’s motion and filed the remand order on July 13, 2005. This appeal followed.
As stated above, Appellant raises two arguments for reversal. First, she maintains that the circuit court erred in finding that the certified copy of the district court docket sheet was not a record of proceedings within the meaning of Rule 9(b) and that the filing of the docket sheet was, therefore, untimely. Second, she argues that the circuit court erred in finding that it was without jurisdiction to hear the appeal and remanding the case to district court for sentencing or disposition. Upon review, these two arguments are so fundamentally intertwined that they can be addressed as one. However, prior to addressing Appellant’s arguments, it should be noted that the State contends she has not preserved her arguments for review. We disagree. Appellant argued below that she was in compliance with Rule 9(b) because the certified docket sheet was a record of proceedings. That is precisely the argument made here. Thus, we can proceed in our review.
Arkansas District Court Rule 9 governs appeals from district courts to circuit court. In order for the circuit court to obtain jurisdiction, an appellant must comply with Rule 9. See Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006); J&M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001). Rule 9 states, in pertinent part:
(a) TimeforTakingAppeal. All appeals in civil cases from district courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within 30 days from the date of the entry of judgment----
(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 court.
Although Rule 9 specifically states its application to civil appeals, we have repeatedly held that it applies to criminal appeals as well. Velek, 364 Ark. 531, 222 S.W.3d 182; Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005); Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994). Moreover, district court rules, such as Rule 9, are mandatory and jurisdictional. Velek, 364 Ark. 531, 222 S.W.3d 182; J&M Mobile Homes, 347 Ark. 126, 60 S.W.3d 481. Failure to comply with Rule 9 mandates the circuit court’s dismissal of the appeal. Id.
In the present case, it is undisputed that Appellant filed the certified district court docket sheet within thirty days of the date of the entry ofjudgment. Thus, the issue is whether a certified district court docket sheet is a “record of proceedings” from which an appeal may be taken under Rule 9. We construe court rules using the same means and canons of construction used to interpret statutes. Velek, 364 Ark. 531, 222 S.W.3d 182; Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language is plain and unambigu ous, there is no need to resort to rules of statutory construction, and the analysis need go no further. 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. State of Ark. Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We review issues of statutory construction de novo, as it is for this court to determine what a statute or rule means. Id. In this respect, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Henyan, 359 Ark. 486, 199 S.W.3d 51.
Rule 9 clearly requires that an appeal from district to circuit court shall be taken by filing a record of the proceedings; however, Rule 9 does not enumerate what constitutes a record of proceedings. Furthermore, this court has never expressly defined what constitutes a record of proceedings, but it has referenced what is sufficient to satisfy this requirement. In J&M Mobile Homes, 347 Ark. at 130-31, 60 S.W.3d at 484, we held that Rule 9 “requires the filing of a certified copy of the transcript of the lower court proceedings within thirty days in order for the circuit court to acquire jurisdiction over the appeal.” Additionally, in both Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996), and King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991), we noted, in dicta, that the record for municipal courts can be the docket sheet. In yet another case, Smith v. State, 316 Ark. 32, 34, 870 S.W.2d 716, 717 (1994), we stated that, although filing was untimely, “[i]n this case, the necessary record would have included the information, the motion, and the judgment of the municipal court.” Lastly, the court of appeals, in Baldwin v. State, 74 Ark. App. 69, 45 S.W.3d 412 (2001), held that the filing of a notice of appeal and an appeal bond signed by the municipal judge could not serve as a replacement of the record. Consequently, based upon our review of prior case law and Rule 9 itself, we hold that to satisfy the Rule 9 “record of proceedings” requirement, the record of proceedings must, at a minimum, be (1) certified by the clerk of the particular district court in which the case originated, and (2) reflect all the proceedings, including all filed documents and motions, before the district court.
Here, the circuit court found that Appellant did not comply with Rule 9 because the certified district court docket sheet was not a record of proceedings. In determining that the certified docket sheet was not a record of proceedings, the circuit court, relying on Baldwin, referred to the use of the word “transcript” as a sufficient document to satisfy the record of proceedings. The circuit court found that Appellant’s receipt for the purchase of a transcript did not convert the certified docket sheet into a record of proceedings or transcript. Upon review, the circuit court erred in reaching this conclusion, as it was based upon a misinterpretation of Baldwin and our case law.
In Baldwin, the appellant filed a notice of appeal and an appeal bond signed by the municipal judge. There, the court of appeals rejected the appellant’s argument that because the appeal bond contained the same information as the transcript, it was sufficient to satisfy the record of proceedings. The present case is distinguishable from Baldwin in two parts. First, under Rule 9(b), it is the duty of the clerk to prepare and certify the record when requested by the appellant, and it is the appellant’s duty to file the record. Here, Appellant paid for the record of proceedings from district court, received a certified copy of the docket sheet from the clerk, and timely filed it with the circuit court. On the other hand, in Baldwin, there was no evidence that the appellant requested and paid for a record from the clerk but rather the appellant simply filed an appeal bond. Thus, it was clear that the appellant in Baldwin did not satisfy the requirements of Rule 9(b) whereas, here, Appellant took the proper steps in obtaining a record of proceeding and filing her appeal.
Second, in Baldwin, the court of appeals held that, even if the appeal bond contained the same information as the transcript, it cannot serve as a replacement of the record. Here, Appellant filed a certified copy of the docket sheet that she obtained from the clerk in order to take an appeal from district court to circuit court. The certified docket sheet contained all of the information relating to the district-court proceedings. As such, the present case is clearly distinguishable from Baldwin and the circuit court erred in finding that the certified docket sheet was not a record of proceedings.
Lastly, we have recognized that for inferior courts, such as district courts, the usual record is the docket sheet. See Frana, 323 Ark. 1, 912 S.W.2d 930; King, 304 Ark. 592, 804 S.W.2d 360. But, as stated above, the record of proceedings must reflect all the proceedings, including all filed documents and motions, before the district court. Thus, a charging instrument, if filed with the district court, should be part of the record of proceedings.
In this case, it is not clear whether a “charging instrument” was filed with the district court or whether the affidavit was just sworn before the district court judge in order to obtain the warrant. Specifically, none of these documents are marked as ever being filed with the court. Due to the absence of file marks, we hold the certified district court docket sheet, in this case, is sufficient to satisfy a “record of proceedings” under Rule 9(b). The certified district court docket sheet, which included the violation Appellant was charged with, the dates of the violation and arrest, Appellant’s plea, and the disposition of the case, obtained in compliance with, and pursuant to Rule 9(b), should be considered a record of proceedings sufficient to maintain an appeal from district court to circuit court. Thus, the circuit court erred in its interpretation of Rule 9(b), specifically its finding as to what constitutes a record of proceedings.
Because it was undisputed that Appellant timely filed the certified docket sheet within thirty days of the date of judgment, and we hold that document was a record of the proceedings, the circuit court erred in finding that it was without jurisdiction due to the untimeliness of the appeal. Since we hold that the circuit court erred in finding it was without jurisdiction, it also erred in remanding the case for lack of jurisdiction. Nevertheless, we direct the circuit court to remand to the district court to settle the record with respect to all other documents and motions filed in the district court, if any, for purpose of its de novo review. Furthermore, in light of this opinion, we request our Civil Practice Committee to review Rule 9 and our Criminal Practice Committee to review Rule 36.
Reversed and remanded.
In Velek, 364 Ark. at 534 n. 1,222 S.W.3d at 184 n. 1, we noted: “Although criminal appeals from district 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 hmited-jurisdiction courts to circuit courts.” We adopted Rule 36 on May 11,2006, and it is effective as of June 1, 2006. See In re:Adoption of Rule 36 of the Arkansas Rules of Criminal Procedure, 366 Ark. Appx. 619 (2006). Rule 36(c) is virtually identical to Rule 9(b) in that it incorporates the entire text of Rule 9(b), as well as adds the requirement that “ [t]he record shall include any supersedeas bond or appeal bond filed by the defendant.”
In Clark, 362 Ark. 545, 210 S.W.3d 59, we were faced with the identical issue of whether a certified copy of the district court’s docket sheet was a record of the proceedings. However, the court did not reach this issue as we dismissed the appeal based on the appellant’s failure to timely file the record.
This holding is in line with the ordinary definition of both “record” and “proceeding.” “Record” is defined as “[t]he official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits.” Black’s Law Dictionary 1301 (8th ed. 2004). “Proceeding” is “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Id. at 1241. Moreover, this holding is also in line with Rule 9, Reporter’s Note 2, which explains that record of proceedings “should reflect the claim form, the written answer or response, if any, the judgment of the court and any other writings or documents filed in the inferior court or offered in evidence.”
We have said that a city attorney can file charging instruments in a misdemeanor case, but that it is not necessary to do so. See Hagen v. State, 315 Ark. 20, 24, 864 S.W.2d 856, 858 (1998) (holding that an information or indictment is not necessary for a misdemeanor charge and that “ [t]he Rules of Criminal Procedure provide for the issuance of a warrant, citation, or summons to command an accused to court on a misdemeanor charge”). | [
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RHONDA K. WOOD, Associate Justice
h Brandon Lacy was convicted of capital murder and sentenced to death. We affirmed on direct appeal. Lacy then filed- a Rule 37.5 petition wherein he alleged ineffective assistance of-counsel. The circuit court granted Lacy a new sentencing hearing after finding that defense counsel’s performance had been inadequate. The State has appealed from this order. In addition, Lacy has cross-appealed from the circuit court’s denial of his claim for relief based on counsel’s failure to present an affirmative defense of. mental disease or defect. On the direct appeal from the Rule 37.5 order, we reverse and remand because the circuit court analyzed the case under a subjective legal standard; on the Cross-appeal, we affirm.
Relevant Facts
Details of this case, can be found in our opinion from Lacy’s direct appeal. See Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. Briefly, Lacy was charged with capital murder. Lacy admitted committing the crime with an- accomplice. At trial, Lacy was represented by |gmultiple lawyers, with Steve Harper as “lead counsel.” Harper conducted the sentencing phase and was responsible for mitigation.
Harper knew that Lacy had a history of alcoholism and substance abuse; thus, he arranged for Lácy to undergo psychological testing. Dr. Curtis Grundy, a psychologist, examined Lacy twice. Dr. Grundy testified at a pretrial hearing that Lacy was competent to stand trial. Dr. Robin Ross also conducted a forensic evaluation and concluded that Lacy was competent to stand trial and did' not have a mental disease or defect. Harper also consulted with Dr. Robert Forrest; according to Harper, Dr. Forrest concluded that additional psychological tests would not be “foolish” but ultimately would not be worth the time or money.
r The ease proceeded to a jury trial. Lacy’s attorneys declined to present an affirmative defense of mental disease or defect. The jury found Lacy guilty of capital murder and aggravated robbery. At the sentencing phase, Harper presented a number of witnesses in mitigation. These witnesses, who were Lacy’s family members, testified about Lacy’s difficult and abusive childhood, as well as Lacy’s heavy drinking at a very early age. In addition, Harper gave very brief opening and closing statements. No experts testified. After deliberating, the jury sentenced Lacy to death.
Following the direct appeal, the circuit court held a hearing regarding Lacy’s allegations of ineffective assistance of counsel. One contention was that Harper’s performance during sentencing was deficient. Much of the focus at the Rule 37 hearing was l.qon Harper’s closing argument to the jury at the end of the sentencing phase. His closing argument was, by his own admission, “one of the worst I’ve ever given.” Harper would go on to explain as follows:
By the time that portion of the trial came around, I’d had to adopt a lot of the burdens of every portion of the trial and it was — it was a train wreck. By the time it came around I was physically, mentally, emotionally exhausted. I was beat dead and I didn’t give a good closing_ Could have been a lot better.
Lacy’s Rule 37.5 counsel also argued that Lacy was entitled to relief because his attorneys at trial should have raised an affirmative defense of mental disease or defect. Lacy presented testimony from two experts in support of this allegation. Dr. Jeffrey Gould, a forensic psychiatrist, testified that Lacy suffered from alcohol-use disorder and depressive disorder. Dr. Gould further testified that, had he been originally consulted in Lacy’s capital murder case, he would have recommended that Lacy undergo a neuropsychological evaluation.
Dr. Barry Crown, a psychologist, testified that he had conducted a neuropsycho-logical exam on Lacy. Dr. Crown specified, however, that his exam was “status oriented” and was relevant only for the date that he examined Lacy, which was in December 2011. Dr. Crown concluded that Lacy had “significant neuro psychological impairment impacting multiple functional areas.” Dr. Crown diagnosed Lacy with cognitive disorder intellect, not otherwise specified. Specifically, Dr. Crown opined that Lacy had delayed memory, impaired reasoning and judgment, and impaired language-based critical thinking.
To rebut Dr. Crown’s diagnosis, the State presented testimony from Dr. Richard Price, a neuropsychologist. Dr. Price explained that Dr. Crown’s diagnosis of Lacy’s | cognitive disorder was essentially a “mild neurocognitive disorder where there is some documentation of ... a brain injury.” Dr. Price testified that a person with this diagnosis could still be high functioning. Further, Dr. Price testified that the diagnosis was based on a self-reported brain injury rather than objective medical data, a fact that “weaken[s] that opinion for sure.” Dr. Price also noted that Lacy had completed 60 hours of college credit while in prison, suggesting a degree of intellectual skills.
The circuit court entered a written order granting Lacy a new sentencing hearing based on Harper’s testimony that his performance had been inadequate. However, the court denied Lacy relief on the basis that Harper should have presented a defense of mental disease or defect. The State appeals from the first finding, and Lacy appeals from the second.
Relevant Law
We do not reverse the grant or denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
We assess the effectiveness of counsel under the two-prong 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). Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that counsel’s performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by .the Sixth Amendment. Id. Second, the deficient performance must have | [¡resulted in prejudice so pronounced as to have deprived the petitioner a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).
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. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. Even if counsel’s conduct is shown to be deficient, the judgment will stand unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. Id. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in, the outcome of the trial. Id.
Direct Appeal
We address first the circuit court’s finding that Harper’s performance during the sentencing phase was deficient. The circuit court granted Lacy a new sentencing hearing based on “the testimony and actions of ... Steve Harper.” Again, Harper testified that he had been under significant stress and that his closing argument during the sentencing phase was “one of the worst I’ve ever given.” Harper further testified that his mitigation case “could have been a lot better.” There was also testimony at the Rule 37.5 hearing from Didi Sailings, former executive director of the Public Defender Commission, and from Jay |fiSaxton, Harper’s co-counsel. Both gave Harper’s performance mixed reviews: while they were critical of Harper’s performance, they suggested that he was adequately prepared.
The circuit court erred because, when explaining its decision to grant a new hearing, it referenced only Harper’s own assessment of his performance. A petitioner making a claim for ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. We have further noted that counsel should be “evaluated according to professional standards ot reasonableness, not by his own-subjective - assessment of .his performance.” Howard v. State, 367 Ark. 18, 33, 238 S.W.3d 24, 36 (2006). Rather than applying an objective test, the circuit court here applied a subjective one.
Both’ the- State and Lacy acknowledge that the test is objective. ' Both also urge this court to review the record and apply the objective test without remand. We decline to do so: the circuit court is in a better position to apply the objective test. When a circuit court applies the wrong standard in a petition for postconviction relief, this court has found it necessary to reverse and remand for the correct standard to be applied. Misskelley v. State, 2010 Ark. 415, 2010 WL 4366985; Baldwin v. State, 2010 Ark. 412, 2010 WL 4354242 (remanding for the circuit court to apply the correct legal standard in a petition for writ of habeas corpus). Therefore, we reverse and remand. On remand, the court should use an objective legal standard when asséssing whether Lacy received effective representation.
In addition to the foregoing, the circuit court’s order on remand should comply with Rule 37.5(i) of the Arkansas Rules of Criminal, Procedure. That rule requires the circuit, court to make specific;written findings with regard, to each legal and factual issue raised by 17the petition. While the court’s order here discussed the facts, the order otherwise failed to comply with, this rule’s more “exacting requirements.” See Fudge v. State, 354 Ark. 148, 151, 120 S.W.3d 600, 602 (2003).
Cross-appeal
We next consider Lacy’s cross-appeal. Lacy--argues that his trial counsel was deficient for failing to'present an affirmative defense of mental disease or defect; in the alternative, Lacy argues that this failure entitles him to. a new sentencing hearing, We affirm the circuit court’s ruling that Lacy was not entitled to relief on this ground.
Under Arkansas Code Annotated section 5-2-312 (Repl. 2013), a defendant has an affirmative defense if, at the time he engaged in the charged conduct, he lacked the capacity to (1) conform his conduct to the requirements of the law or (2) appreciate the criminality of his conduct. Before his trial, Lacy underwent at least two psychological evaluations. Both experts, Dr, Grundy and Dr, Ross, opined that Lacy had no. mental disease or defect and was competent to stand trial.. Another psychologist, Dr. Forrest, reviewed Lacy’s records and concluded that further neu-ropsychological testing would yield little results.
Lacy also underwent psychological testing for the purposes of his Rule 37 hearing. Like the experts who-examined him before trial, none of these experts opined that Lacy-was incompetent to stand trial. Dr. Gould testified that Lacy suffered from alcohol-use disorder and depressive disorder. And while Dr. Crown diagnosed Lacy with a cognitive disorder, he never testified that Lacy would havé been incompetent to stand trial. In' any event, Dr. Price criticized Dr; Crown’s methodology, pointing out that Dr. Crown had reviewed limited records and that Lacy’s IQ score (106) and his completion of 60 hours of college | «credit undermined the severity of the diagnosis. .The circuit court explicitly credited Dr. Price’s testimony in its order denying Lacy relief on this ground: “According to Dr. Price, though- there is evidence of [Lacy’s] substance abuse, the records, and date do not support a diagnosis of brain damage, or any'sort of neuropsycho-logical disorder.”
There was also testimony regarding “memory confabulation.” It .was undisputed that Lacy was intoxicated when he committed the murder. Dr, Grundy testified that, as a result of his intoxication, Lacy may have forgotten the events and filled them in with details provided by someone else. Even so, Dr,, Grundy, hoted in his report that Lacy could still recall specific, information from the night of the murder.
We cannot say that the' circuit court’s ruling on this groúnd was clearly erroneous. First, Harper conducted a thorough investigation into Lacy’s cognitive abilities, and at least three psychologists failed to diagnose him with a mental disease or defect. Second, the one doctor who did so diagnose had his methodology criticized by the State’s expert. The circuit court gave more weight to this criticism in its order, which, as the fact finder, it was ehtitled to do. See U.S. Fidelity & Guaranty Co. v. Park, 254 Ark. 129, 132, 491 S.W.2d 791, 793 (1973) (stating that “it is "within the province of the factfinder to determine the value and weight to be given to the testimony of experts”). Third, no expert ever testified that Lacy was legally incompetent under section 5-2-312 or that Lacy in fact did not recall the murder. For all the above reasons, counsel’s failure to present an affirmative defense of mental disease or defect was not deficient performance.
Conclusion
" |90n direct appeal, we reverse the circuit court’s ruling that Lacy received ineffective assistance of counsel based solely on his counsel’s testimony that his performance had been inadequate. We remand the case to the circuit court, which should assess counsel’s performance under an objective standard; the circuit court’s "written order on remand should also comply with the exacting requirements of Rule 37.5(i). On cross-appeal, we affirm the circuit court’s denial of relief based on counsel’s failure to present an affirmative defense.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
. The circuit court initially dismissed the case without holding an evidentiary hearing. We reversed and remanded because the record did not conclusively show that Lacy was entitled to no relief. Lacy v. State, 2013 Ark. 34, 425 S.W.3d 746. | [
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WAYMOND M. BROWN, Judge
|! Appellant Arick Johnson was convicted of terroristic threatening in the first degree in a bench trial held on February 9, 2015. He appeals his conviction, arguing that the trial court erred in excluding evidence that the alleged victim and her husband were biased and had motive to lie. We affirm.
At the trial, Karen King, general manager of the Otter Creek Homeowners Association, testified that she was contacted by Julia Pike Holley on May 27, 2013, and asked to retrieve a copy of the video surveillance from that day. King stated that a Hummer was seen coming through the entrance of Otter Creek at 12:35:09. However, she stated that she did not know where the vehicle went when it came into Otter Creek. She also said that she did not know-whether the driver of that vehicle threatened anyone.
■ | ¾Julia testified that she was outside her home on the date in question while her young children were riding their bikes. She stated that she remembered a Hummer coming onto her street with the “music really loud and aggressive.” She said that she immediately told her son to get out of the road and went towards her daughter to get her out of the street. According to Julia, a female passenger in the Hummer began yelling obscenities to her. She testified that the driver of the Hummer, whom she later identified as appellant, came right beside her and said, “I’ll kill you, bitch.” Additionally, she stated that appellant held up his hand and said, “boom, -boom.” Julia said that she then tried to make contact with her husband, Isaac “Ben” Holley, who was in State Trooper school at the time. She stated that she waited to hear back from Ben, and that after she informed him of the situation and described the driver, Ben told her to call the police and file a report immediately. Julia stated that she was 100% sure that appellant was the person who threatened to kill her.
On cross-examination, Julia stated that she did not inform the police of appellant’s name until June 5, 2013. She stated that she had never seen appellant before May 27th. She acknowledged that she did not contact the police until approximately five hours later. She stated that when she described the person to- Ben, he stated that he believed that he knew who she was talking about and told her to call the police, She said that it was Ben. who told her appellant’s name. She testified that she had never heard appellant’s name before that time. However, she acknowledged that Ben had mentioned an “individual in the apartment ^complex he’d had issues with, so- immediately after, Arick Johnson was removed from the apartment complex.” She said the day following appellant’s removal, the back window of Ben’s truck was busted out. She said that “just recently my husband told me that [Arick’s] girlfriend had called state police and said something about my husband went to their apartment and threatened them.” She denied having any knowledge about complaints filed by appellant against Ben.
'Ben testified that he was employed by the Arkansas State Police. He stated that he was also employed by the State Police at the time of-the incident. He said that he was hired in October 2012 as a security guard for an apartment complex in which appellant - lived. He stated that he was informed that appellant was suspected of illegal activity and was asked to keep an eye on appellant. During Ben’s testimony, the State made an objection to relevance’:
..State: The State was allowing, some leeway of because I believe., it does establish motive of this defendant to commit this crime. At this point the State would object to relevance as the line of questioning.
Court: Relevance?
Defense: Your Honor, first of all, it’s relevant .because it establishes he’s a liar. Second of all, it goes toward— . the whole thing is bias, toward my client. -
CouRt: But at this point he hasn’t testified that your client has said or doné anything in relation to the charges that we’ve got here before üs. So, gain, you may have impeached him. If I take it, talce you at your word that he’s lied about something, that’s fine. What is the relevance of his being truthful have to do with this charge?
Defense: Because it was, it’s as his wife testified he was the one who told her that it was Arick Johnson.
CouRt: I’ll give you that. And if that’s your only-relevance, then you need to = move on. She identified this man as the person that she saw there.- .So | ¿whether or not he told her who it ' - was, again, does not have any bearing on this particular charge. So you need to move on.
Ben testified that his first incident with appellant took place shortly after Ben began working at the. apartment, complex. After which, the following took place:
Defense: Okay, now what can you tell us how it came to be that you threatened to mistake Arick Johnson’s phone for a gun—
State: Objection.
Defense: —and kill him?
State: This is well beyond anything that’s relevant to the charges.
CouRt: Sustained.
Defense: Your Honor, this is absolutely necessary to’ show his bias and motive to get my client convicted!
Court: Well, and I grant you, you could prove that he’s biased against your client. At this point, you haven’t given — there’s no' evidence before me that he has accused your client of - saying or doing anything. I have the • testimony of Mrs. Holley saying what happened and identifying your client. So, you can prove he’s biased all day • long. I’ll give'you that, but I don’t see the bearing.
Defense: Okay.
Ben stated that he spoke to his wife on May 27, 2013, about someone threatening her. He said that he told her that he believed the person was appellant. However, Ben denied telling Julia to make false accusations against appellant.
The defense continued to ask Ben questions that were challenged for relevance. The court cautioned the defense that it had failed to provide any proof that Ben had gotten Julia to falsely testify to something. The court stated that the defense was “loading up on proof of Rthat he had a motive to do that, but without proof that he did it, where does that leave us?” The court subsequently allowed the defense to make its proffer.
Defense: Okay, Yoiir Honor, I would proffer that Trooper Holley told my client arid told Detective Everett the same that he, that he was going to, that Arick Johnson approached him with a. phone recording him on the night of their first incident.
In doing so, Trooper Holley said the words, “I could mistake that phone for’ a weapon and kill you.” At which time Mr. Johnson replied, “Are you threatening to kill me like- Travon Martin?” And he said, “No, I’m not a security guard. I’m a police officer.” Okay? And then he stated, :“Are you threatening to shoot me?” And Trooper Holley left the scene.' '
I also would proffer at this time the fact that Trooper Holley made a false police report against Mr. Johnson stating that, he smelled weed from across the complex, yet Mr. Johnson was never arrested. The police, in fact, never came into Mr. Johnson’s residence based on any smell of marijuana.
I would also proffer that Trooper Holley would testify that he had told his wife that on Halloween night, when someone threw a rock through their truck window that they believed it-was Arick Johnson, but they didn’t have proof. You[r] Honor, .! believe that is all I have.
Detective Angela Everett of the Little Rock Police Department testified that she was assigned to the incident that took place on May-27, 2013. She said that Julia did not give her appellant’s name initially, and that it was after Julia spoke with Ben that they provided her. with, appellant’s, name. She said that Ben gave her a “more extended version of the events.”
The court, then allowed the defense to proffer -that- Ben told Detective Everett something “relating to mistaking the [appellant’s] phone for a weapon and killing him.”. ,
’Appellant-testified that he never threatened to kill Julia and that he never had any problems with- her before-the case started. He acknowledged that he did, however, have | ¿problems ■ with Ben, which started when Ben began working as the security guard at the apartment complex in which appellant lived. Appellant denied ever threatening Ben or damaging any of Ben’s property. He testified that he had filed several reports on Ben with several agencies to no avail. Appellant stated that he had nuirierous videos of Ben threatening to shoot him, but that the evidence was taken when his residence was searched pursuant to a search warrant. He admitted that he went inside the gate in Otter-Creek on May 27, 2013, but he denied threatening Julia..
On cross-examination, appellant stated that he was familiar with where the Hol-leys lived because it was directly behind the apartment complex where he used to live. He testified that he disliked Ben because Ben threatened to release his dog on appellant and his son. Appellant said that he “tried to take every appropriate action in every way [he] could to submit that [Ben] is not mentally capable of being in that position. He could easily mistake someone for having a gun for their phone.” Appellant stated that he posted pictures of the Holleys’ house on Facebook after he was notified that they had made complaints against him. He also admitted to posting, “This bitch said he was going to shoot me when he had a badge on. He didn’t even know him and his precious family is on Goblin Watch for his lack of reality. That badge ain’t shit on this field.”
The State moved to introduce the Face-book post. At that point, the defense argued that the State had opened the door “to all other issues based on the fact that he’s getting into the threats between the two of them.” The State contended that the evidence was introduced to show appellant’s knowledge of where the Holleys lived. The court ruled that the door had |7not been opened, and it denied the defense’s request to go into the evidence that had been proffered.
On redirect, appellant testified that Ben had originally told him, “Your precious family on Goblin watch.”
The court found appellant guilty of first-degree terroristic threatening after finding Julia’s testimony credible. Appellant filed a timely notice of appeal. This appeal followed.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and this court will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration.
The law is clear that a party should be allowed to cross-examine a witness in order to prove bias. The right of cross-examination includes the right to show that testimony is unbelievable because this type of evidence can at times make the difference between conviction and acquittal. The supreme court has found the “denial of cross-examination to show the possible bias or prejudice of a witness may constitute Constitutional error of the first | ^magnitude as violating the Sixth Amendment right of confrontation.” However, this rule is subject to the harmless error rule. When determining whether the denial of a party’s right to cross-examine a witness for possible bias is harmless error, the court .considers a host of factors, including the importance of the witness’s testimony, whether the testimony was cumulative, whether evidence existed that corroborates or contradicts the testimony of a witness, and the overall strength of the prosecution’s case. The correct inquiry is whether, assuming that the damaging potential of the cross-examination was fully realized, this court might nonetheless say that the error was harmless beyond a reasonable doubt.
Here, the court stated that appellant could prove that Ben was biased against appellant, but that Ben had not offered any testimony saying or accusing appellant of doing anything. Additionally, the court found that the evidence was irrelevant as it related to the charge that appellant was currently facing. Appellant failed to offer any evidence against Julia to show that she was influenced'by Ben’s bias to falsely accuse appellant of a crime he did not commit. The court noted that the case hinged on credibility, and it found Julia’s testimony credible. We hold that the court did not abuse its. discretion by excluding the evidence appellant sought to introduce.
|flEven if we did find that the court committed error by not allowing the evidence against Ben in, this error was harmless beyond a reasonable doubt. Julia testified unequivocally that appellant was the person who threatened to kill her on May 27, 2013. The court believed this testimony, and we do not weigh the credibility of witnesses on appeal.
Appellant also contends that the State opened the door when it introduced appellant’s Facebook post, and that appellant should have been allowed to question Ben about the proffered evidence. This argument is without merit. Appellant did not object to the evidence until the State sought to admit it as an exhibit. Furthermore, the State stated that the post was introduced to prove appellant’s knowledge of the Holleys’ residence, a fact which' appellant had already admitted. We note that even if the trial court erred in its finding that the State had not opened the door, the error was harmless in light of Julia’s testimony against appellant. Accordingly, we affirm.
Affirmed.
Gladwin, C.J., and Abramson, J., agree.
. The parties stipulated that appellant drove a yellow Hummer during this time frame.
. Jones v. State, 2011 Ark. App. 324, 384 S,W,3d 22.
. Id.
. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986).
. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
. Billett v. State, 317 Ark. 346, 877 S,W.2d 913 (1994) (citing Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983)).
. Watson v. State, 318 Ark. 603, 887 S.W,2d 518 (1994); Winfrey v. State, supra.
. Winfrey v. State, supra, Sullivan v. State, 32 Ark.App. 124, 798 S.W.2d 110 (1990).
. Winfrey v. State, supra.
. Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364. | [
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PHILLIP T. WHITEAKER, Judge
| Appellant - Marilyn Curry Troutman (who now goes by Curry) appeals from the decision of the Washington County Circuit Court granting appellee Ronald Trout-man’s petition to modify his monthly child-support obligation. Curry argues on appeal that the circuit court erred in finding that a material 'change in circumstances existed that warranted a modification of child support and that the circuit court likewise erred in its calculations. We disagree and affirm.
Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219; Brown v. Brown, 2014 Ark. App. 455, 440 S.W.3d 361. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be ^accorded to their testimony. Brown, supra. Moreover, it is the province of the trier of fact to resolve conflicting testimony. Crismon v. Crismon, 72 Ark.App. 116, 34 S.W.3d 763 (2000). As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. However, a circuit court’s conclusion of law' is given no deference on appeal. Id. With these standards in mind, we turn our attention to the facts of this case and the decision of the circuit court.
Curry and Troutman were divorced in 2005. At the time of the divorce decree, Troutman was ordered to pay $762 per month in child support for the parties’ one child. In the years since the decree, the circuit court increased Troutman’s child-support obligation twice: to $3,095 a month in 2011, and to $6,005 a month in 2012. In each instance, the court based its calculations on the fact that Troutman was self-employed, and his income was determined by considering his reported wages from his previous two years’ tax returns. See Ark. Sup. Ct. Admin. Order No. 10(III)(c). - •
In 2014,. Troutman filed a petition to modify the divorce’decree, alleging that, since the iast order modifying the amount of child support, there had been a material change in circumstances in that he had experienced a reduction in his income of more than 20% or $100 per month. Trout-man asked the court to decrease his child-support obligation to the' amount recommended by the family Support chart based oh the average of his net income from 2012 and 2013. Curry denied that a material change in circumstances had occurred.
The evidence before the .circuit court can be fairly summarized as follows. Troutman is a-general contractor and is the owner and sole shareholder of Boulder Construction |a(“Boulder”), which is structured as a subchapter .S corporation. In the tax year of 2012, Boulder had ordinary business income of $706,024, and Troutman^ reported $717,137 in total personal income. In the tax year of 2013, Boulder experienced a loss of $171,892, and Troutman had a loss of $118,387. During the tax year of 2013, however, Boulder reported $785,392 in deferred income, and the company made a $554,745 distribution, to Troutman as the sole shareholder of Boulder,, Curry requested that both the deferred income and the shareholder distribution be taken into consideration for purposes of calculating child support. ■ Troutman disagreed with this proposition.
To assist the circuit court with the task of determining Troutman’s income, both Troutman and Curry introduced the testimony- of accountants, who each described the process by which they had calculated the appropriate amount of child support. Both accountants agreed that calculating child support based upon tax-return data is permissible and customary. However, Jake Keen, Curry’s expert witness and a CPA, urged the court to consider both the deferred income of Boulder and the shareholder distribution to Troutman in the process. Keen opined that using this methodology was more reliable for calculating child support because it considered the amount of money' that was available to Troutman to live on.
Troutman’s accountant and expert, Reese Parham, disagreed. He urged the court to continue to use the tax-return data as the methodology in its child-support calculations, as it had in the past, and to reject the distribution and deferred-income methodology. -Parham explained that’he used the “completed contract” or “project completed” accounting method | ¿for tax purposes for Boulder, just as he did for other contractors and construction companies of similar size. Under this accounting method, Boulder’s deferred income from 2013 would be taxed in 2014. Likewise, Parham rejected Keen’s calculation of Troutman’s income by including the $554,745 distribution, noting that the cash for the distribution had been earned in previous- years and thus had already been subjected to taxes and calculations for child-support obligations.
Based upon this evidence, the court disregarded the distribution and the deferred income and calculated Troutman’s child-support obligation the same way it had been calculated in previous years — that is, by taking Troutman’s income from the previous two years’ (2012 and 2013) income tax returns. Applying those figures, the court determined that Troutman had a net monthly income of $14,447. The court found that Troutman had met his burden of proving a material change in circumstances with respect to his income and ordered that, pursuant to the family support chart, Troutman’s child-support obligation, would be set at $2,108 per month. The court further concluded, however, that because Troutman had been paying the previously established amount of child support — $6,005—since he had filed his petition to modify, Curry had received an overpayment of $27,379. Because Curry could not afford to repay Troutman the entire lump sum, the court ordered that Troutman was entitled to recoup the overpayment by reducing his child-support payments by $1000 per month, until such time, as he had fully recovered the overpayment.
15After the court’s decision from the bench was reduced to a written order, Chrry filed a timely notice of appeal. She now urges to this court that (1) the circuit court erred in finding that there had been a material change in circumstances that warranted a reduction of Troutman’s child-support obligations, and (2) the circuit court erred in its calculation of that reduction.
Although Curry enumerates two separate points on appeal, her arguments are sufficiently intertwined that we treat them together. She complains that the circuit court erred in finding that a material change in circumstances had occurred to warrant a modification in Troutman’s child-support obligation and, based on the same reasoning, that the. circuit court erred in its calculation of Troutman’s income. In essence, she argues that the court failed to take a broad view of the funds that Troutman had available as “income” and accepted an inappropriate methodology for determining Troutman’s income.
It is axiomatic that a change in circumstances must be shown before a court can modify an order for child support. Hall, supra; Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). In addition, the party seeking modification has thé burden of showing a change in circumstances. Hall, supra. In determining whether there, has been a change in circumstances warranting .adjustment in support, the court should consider such matters as a change in the income and financial conditions of the parties, the financial conditions of the parties and [ (¡families, and the child-support chart. Id. The supreme court has made it clear that - a finding that a material change in circumstances has occurred is subject to a clearly erroneous standard of review. Id.
The question of whether .there has been a material change in circumstances is governed by Arkansas Code' Annotated section 9-14-107(8X1) , (Repl. 2015), which provides as follows:
A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a material change of circumstances sufficient to petition the court for modification of child support according to the family support chart after appropriate deductions.
Curry argues that Troutman failed to demonstrate that he experienced a material change in circumstances because the financial information, taken together, indicates that he had access to much more cash than his tax returns reflected. She bases this contention on Keen’s* testihiony that Boul.der’s 2013 Schedule M-l showed that Boulder possessed $785,392 in deferred income and that Troutman had accepted a $554,745 distribution 'from Boulder in 2013, although neither of - these figures was reflected on Troutman’s 2013 individual income-tax return, which showed a loss of $118,487.
Curry alleges three ways in which the circuit court’s findings regarding a material change in circunjstances were incorrect: (1) the .court erred-in relying exclusively on Troutman’s 2012 and 2013 reported individual income and failing to consider all sources of funds available to him; (2) the court erred in finding a material change in circumstances despite the absence of evidence- regarding Troutman’s income for 2014; and (3) the methodology employed by the court in calculating Troutman’s income gave Troutman too |7much discretion and control over demonstrating whether a material change in circumstances had occurred. ' ,
Taking the first two of these arguments , together, we find Curry’s contentions to be unavailing. In determining an appropriate amount of child support, courts are to refer to the family. support chart contained in.Supreme Court Administrative Order Number 10, which provides a means of calculating child support based on the payor’s net income. Browning v. Browning, 2015 Ark. App. 104, 455 S.W.3d 863; Cowell v. Long, 2013 Ark. App. 311, 2013 WL 1919581. Pursuant to Administrative Order No. 10(III)(c), for self-employed payors like Troutman, “support shall be calculated based on the last two years’ federal and state income-tax returns and. the quarterly estimates for the current year.” Here, the circuit court based its determination of Troutman’s income on his 2012 and 2013, federal and state income-tax returns. Because Troutman had experienced a loss in 2013, there were no quarterly estimates for 2014; moreover, because of the way his .business accounting was performed, according to Troutman’s accountant, there was no accurate way of estimating his 2014 income until Boulder’s projects for that year were complete. The circuit court was entitled to accept Trout-man’s - expert’s testimony as credible and reject Curry’s. See Winn v. Winn Enters., Ltd. P’ship, 100 Ark.App. 134, 265 S.W.3d 125 (2007) (the strength or lack of strength of the evidence on which an expert’s opinion is based goes to the weight and credibility, rather than to the admissibility, of the opinion in evidence, and the fact-finder may accept or reject all or any part of the testimony of expert witnesses).
| ^Regarding Curry’s third contention, she complains thát the circuit court erred in refusing to consider other sources of income. In matters of child support, the definition of income is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children, Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002); Stuart v. Stuart, 99 Ark.App. 358, 260 S.W.3d 740 (2007). However, caselaw has specifically held that the definition of income for purposes of support may differ from income for tax purposes. See Stuart, supra; Huey v. Huey, 90 Ark.App. 98, 204 S.W.3d 92 (2005); Delacey v. Delacey, 85 Ark.App. 419, 155 S.W.3d 701 (2004); Brown v. Brown, 76 Ark.App. 494, 68 S.W.3d 316 (2002).
Curry “recognizes that retained earnings and company assets do not equate to income for child-support purposes.” Despite her acknowledgment, she nonetheless cites Anderson v. Anderson, 60 Ark.App. 221, 963 S.W.2d 604 (1998), and Pannell v. Pannell, 64 Ark.App. 262, 981 S.W.2d 531 (1998), as holding that a child-support obligor cannot, in essence, utilize the retained earnings or deferred income of a subchapter S corporation to minimize or reduce the amount of income available to pay child support. See Anderson, 60 Ark.App. at 230, 963 S.W.2d at 609.
19However, Curry never alleged below that Troutman was abusing his sub-chapter S corporate structure to hide assets or minimizing his income by excluding retained earnings or deferred income, and the circuit court certainly never ruled on or made any findings on this particular argument. It is well settled that this court will not consider arguments raised1 for the first time on appeal, McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003), and an appellant must obtain a ruling; from the circuit court on an issue in order to preserve an argument for appeal. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006). Because the trial court did not rule on the claim, this court has nothing to review. See Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (when there is no ruling by the trial court on an issue, there is nothing for this court to review and determine). . ■ .
To the extent that Curry complains generally that the circuit court erred in excluding from its income calculation, the $785,392 listed on Boulder’s Schedule M-l, we disagree. Parham described this dollar figure as representing deferred income. Parham explained that, given. Boulder’s accounting method, which used the “completed projects method,” the money would appear on Troutman’s 2014 income in some fashion, depending on the actual results and actual profits derived from the projects that were completed in 2014. As Troutman’s child-support obligations are reviewed from year to year, Parham said, “this money is always going to work itself out in the wash.” The court accepted Par-ham’s expert testimony as credible, which it was allowed to do. Roberts v. Yang, 2010 Ark. 55, at 5, 370 10S.W.3d 170, 173 (“The appellate court gives due deference to the [circuit court’s] superior position to determine the credibility of witnesses and the weight to be given their testimony.”).
We therefore find no merit to Curry’s argument that the circuit court erred in finding that Parham demonstrated a material change of circumstances. His gross income, according to his 2012 and 2013 income-tax returns, clearly changed by more than 20% or $100 per month. Pursuant to Arkansas Code Annotated section 9-14-107(a)(l), this constituted a material change of circumstances sufficient to support the modification. See Coivell, supra.
In her second enumerated point on appeal, Curry argues that the circuit court erred in its calculation of Troutman’s income for purposes of child support. Because she acknowledges that her analysis of this issue is identical to the analysis of her, previous point on appeal, and because we rejected that argument as set out above, we decline to address Curry’s second point in any further detail.
Affirmed,
Gruber and Hoofman, JJ., agree.
. Having heard testimony concerning Trout-man’s 2013 loss and the nature of deferred - income until project completion, the court did not take any 2014 quarterly estimates into consideration.
. Curry complains briefly that the circuit court "based its ruling on a single-page summary sheet attached to Troutman’s Affidavit of Financial Means.” This specific complaint is raised only once, however, and is clearly belied by the circuit court's examination of hundreds of pages of tax-return documents at the hearing.
. We also note that, in her reply brief, Curry cites extensively to Hawk v. Osborn, 2009 Ark. App. 323, 2009 WL 1086204. This case, however, was decided on April 22, 2009, as an unpublished opinion. Arkansas Supreme Court Rule 5-2(c) states that ‘‘[o]pinions issued before July 1, 2009, and not designated for publication shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court....”
. Even Keen acknowledged that this deferred .income was money that he “would expect to see on [Troutman’s] 2014 income-tax return [and] might be used for future child-support calculations.” | [
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LARRY D. VAUGHT, Judge
JjAppellant Scott Davis appeals the- order and judgment entered by the Circuit Court of Craighead County, dismissing his complaint against appellees Families, Inc. of Arkansas (Families); Lavonna Joy Davis (Joy), individually and in her capacity as trustee of the Lavonna Joy Davis Revocable Living Trust and in her capacity as president and sole board member of Families; and John Does 1-10. Scott argues that the trial court erred as a matter of law and/or abused its discretion in dismissing his claims for violation of the Arkansas |2Secm-ities Act (Act), unjust enrichment, and the tort of deceit, along with his request for rescission. We affirm.
Families is a closely held corporation that provides mental-health services. In 2009, Families had 100 shares of stock. Joy owned seventy-five shares, and her husband, Tom, owned twenty-five shares. Tom passed away on May 26, 2009, and as part of the settlement of his estate, Scott received ten shares of Families stock. In May 2011, Joy and Scott entered into a Stock Purchase and Sale Agreement (Agreement), whereby Scott agreed to sell Joy his ten shares of Families stock for $185,000.
On March 19, 2014, Scott filed a complaint against Joy and Families alleging that they fraudulently induced him to sell his shares of stock for a fraction of the stock’s true value. Scott alleged that Joy and Families systematically and intentionally failed to provide him with mandatory financial disclosures, committed acts of corporate oppression to intimidate and otherwise pressure him to relinquish his shares of stock, and committed widespread corporate waste in order to artificially diminish the market value of his shares of the stock. The complaint alleged three causes of action: violation of the Arkansas Securities Act, deceit, and unjust enrichment. He sought a judgment against Joy and Families, an order rescinding the sale of his ten shares of stock, interest, attorney’s fees, and punitive damages.
Joy and Families filed separate motions to dismiss Scott’s complaint pursuant to Rule 12(b)(6), contending that the complaint failed to state facts upon which relief could be granted. They also argued that Scott’s claim under the Act was barred by the statute of limitations; he lacked standing to pursue a claim for unjust enrichment; and his request for rescission was untimely.
la After a hearing, the trial court entered an order and judgment on September 24, 2014, granting the motions. This appeal followed.
I. Violation of the Arkansas Securities Act
The trial court’s order and judgment dismissing Scott’s securities-fraud claim under the Act was based on three reasons: (1) the Act was primarily intended to apply to buyers of stock and not sellers; (2) the claim was barred by the Act’s three-year statute of limitations set forth in Arkansas Code Annotated section 23—42—106(g); and (3) Scott failed to state facts upon which relief could be granted because the Agreement acknowledged full compliance with the Act and did not constitute a waiver of the requirements of the Act. On appeal, Scott argues that all three findings were erroneous. It is unnecessary, however, to address Scott’s first two arguments because if the Act applied and Scott’s complaint was timely filed, he failed to state facts upon which relief could be granted.
The granting of a Rule 12(b)(6) dismissál is reviewed under the abuse-of-discretion standard. Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, at ¶ 5, 436 S.W.3d 445, 449. In determining whether the trial court abused its diécretion in dismissing a plaintiffs complaint pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Id. at ¶ 6, 436 S.W.3d at 449. We construe the pleadings liberally and resolve all reasonable inferences in-favor of the complaint. Id., 436 S.W.3d at 449. The rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id., 436 S.W.3d at 449 (citing Ark. R. Civ. P. 8(a) (2013)). The court will look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id., 436 S.W.3d at 449. Where the complaint states only conclusions without facts, we will affirm the trial court’s decision to dismiss the complaint pursuant to Rule 12(b)(6). Id., 436 S.W.3d at 449.
The Act provided that
[a]ny person who purchases a security ... by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, the seller not knowing of the untruth or omission, and who shall not sustain the burden of proof that he or she did not-know, and in the exercise of reasonable care could not have known, of-the untruth or omission; shall be liable to the person selling the security to him or her, who may sue either at law or in equity....
Ark. Code Ann. § 23-42-106(b)(1) (Repl. 2012). In his complaint,'Scott "alleged that Joy violated section 23—42—106(b)(1) by pressuring him to sell his Families stock and threatening to use her power and personal advantage as the director of Families to cause financial harm to him.
Scott claimed that after months of intimidation by Joy and his belief that the value of his stock had been diminished, he agreed to sell his stock for the “nominal consideration” of $185,000. He asserted that he was not provided any financial disclosures or other financial | ¡¡information regarding the operations of Families at or before the Agreement was signed or before he transferred his stock. He contended that the only information he had was a two-year-old estate-tax appraisal and yearly tax forms for the company. He alleged that this information was stale, misleading, inaccurate, and contained profit figures that were artificially deflated. He claimed that he would have never entered into the Agreement with Joy had he had access to complete and accurate financial information.
Arkansas Rule of Civil Procedure 9(b) provides that “[i]n all averments of fraud, mistake, duress or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity. Malice, intent, knowledge and other conditions of the mind of a person may be averred generally.” Ark. R. Civ. P. 9(b) (2015). In the case before us, the complaint failed to provide specific and particular factual allegations that Joy made “untrue statements of material fact” or that she failed to state a material fact in order to make statements she allegedly made not misleading. Scott does not identify any specific events or conversations with Joy, with or without dates, that, support his claim. Ballard Grp., Inc., 2014 Ark. 276, at ¶ 14, 436 S.W.3d at 453-54 (holding that the trial court abused its discretion in dismissing the complaint under Rule 12(b)(6), where the complaint alleged specific events and conversations occurring on at least three different occasions in 2007, 2009, and 2010 to support the allegation of misappropriation of trade secrets). The implication that Joy might suspend the payment of dividends on which the shareholders would be required to pay taxes is not an “untrue statement of material fact.”
Moreover, Scott’s complaint fails to state specific and particular facts to support his claim that appellees’ actions prevented him from knowing the true value of his stock. He Instated in his complaint that he had possession of an appraisal that valued his stock at $400,000. With this knowledge, he could not have reasonably believed that the value of the stock had been diminished. Further, he cannot demonstrate that he, in the exercise of reasonable care, could not have known of the true value of his stock. Paragraph 3.2 of the Agreement, entitled “Disclosure,” provided that the “[s]eller has been provided with or permitted access to all information which Seller deems material to formulating his decision with respect to the sale of the Stock and that such information has been sufficient to make an informed decision.” This provision establishes that Scott agreed that Joy complied with the disclosure requirements of the Act by providing all the information he needed to make an informed decision. Significantly, his complaint did not allege that he requested documents from Joy and that she either failed or refused to provide them or that she provided false information. Again, the lack of specific allega tions, his possession of. the appraisal that valued his stock substantially higher than the amount for which he agreed to sell it, and the disclosure paragraph in the Agreement, negate Scott’s conclusory claim that Joy failed to comply with all the requirements imposed by section 23—42—106(b)(1). Because Scott’s complaint makes only con-clusory statements and fails to comply with Rule 9(b)’s requirement that it state the circumstances constituting fraud with particularity, we hold that the trial court did not abuse its discretion in dismissing the complaint for failure to state facts upon which relief can be granted.
[7We acknowledge Scott’s argument that paragraph 3.2 of the Agreement is void because the Act prohibits any waiver of compliance with its provisions. Section 23-42-109 provides that “[a]ny condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this chapter or any rule or order under this chapter is void.” Ark. Code Ann. § 23-42-109 (Repl. 2012). This section of the Act forbids the waiver of compliance with its provisions. Tanenbaum v. Agri-Capital, Inc., 885 F.2d 464 (8th Cir.1989).
The language in paragraph 3.2 does not express Scott’s agreement to waive appel-lees’ compliance with the Act. To the contrary, it affirms that Scott agreed that he had been provided with or permitted access to all information that he deemed material to making an informed decision about selling his stock. Therefore, we hold that the trial court did not abuse its discretion in finding that the waiver provision in section 23-42-109 did not void paragraph 3.2 of the Agreement.
II. Deceit
The trial court dismissed Scott’s cause of action for deceit for failure to state a cause of action because, per the Agreement, he agreed that he had been provided with, or permitted access to, all material information necessary to make an informed decision regarding the sale of his shares. The trial court also found that Arkansas Code Annotated section 23-42-109 did not void paragraph 3.2 of the Agreement because thfe paragraph was |8not a waiver of rights under the Act but rather an acknowledgment of factual compliance with the Act.
We have long recognized the common-law tort of deceit. MFA Mut. Ins. Co. v. Keller, 274 Ark. 281, 284, 623 S.W.2d 841, 842 (1981). To establish deceit or fraud, a plaintiff must show (1) a false representation of material fact; (2) knowledge 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 on the representation; and (5) damage suffered as a result of the reliance. Bomar v. Moser, 369 Ark. 123, 131, 251 S.W.3d 234, 242 (2007).
Scott contends that his complaint contained forty paragraphs of allegations supporting his deceit claim, satisfying both Arkansas Rule of Civil Procedure 12(b)(6) and Rule 9(b). He argues that the allegations demonstrated that Joy made false representations of material fact, she knew that her representations were false, her representations were made with the intent to induce Scott to relinquish his ownership in Families, he relied on the false and incomplete information in agreeing to sell his shares at a, price that was inconsistent with the actual value of the stock, and her intentional actions caused him significant damage.
, Scott’s complaint failed. to state facts sufficient to ¡support the first element of a deceit claim — that Joy made a false representation • of fact. While making many conclusory allegations that she made “deceptive, dishonest, and misleading statements,” Scott failed to specify what those statements were. He argues that she provided inaccurate and incomplete information to him, but he fails to identify that information. There are no allegations that he requested certain information from Joy and that she failed to provide that information. He Iflidentifíes' no financial documentation that demonstrates any false representation made by Joy or that supports his contention that “she deflated corporate profits by committing covert acts of corporate waste.” He merely makes con-clusory allegations.
Assuming arguendo that Scott did allege facts sufficient to establish that Joy made a false representation of fact, he failed to allege facts sufficient to support the required element of justifiable reliance on the false representation. While a justifiable-reliance determination can be a question of fact, Sunbelt Bus. Brokers of Ark., Inc. v. James, 2009 Ark. App. 659, at ¶ 6, 2009 WL 3210609, where there is a lack of an allegation of justifiable reliance on false statements or no basis for such an allegation, a Rule 12(b)(6) dismissal is appropriate. Wiseman v. Batchelor, 315 Ark. 85, 89, 864 S.W.2d 248, 250 (1993) (affirming trial court’s Rule 12(b)(6) dismissal of a fraud cause-of action based on the failure to allege justifiable reliance on a misrepresentation).
. As previously, stated,, Scott acknowledged that one of the financial documents that he possessed prior to the sale was the appraisal of - his ten shares of. Families stock. This -information valued his stock at $400,000, which directly conflicted with the alleged false information he claims to have received from Joy — that the stock had diminished in value. Thus, if Scott had been provided misinformation from Joy about the reduced value of Families stock,-he cannot establish that his reliance on that, alleged false representation was justifiable.
Furthermore, paragraph 3.2 provided that Scott agreed that he had been provided with or permitted access to all information that he deemed material to formulating his decision with respect to the sale of his stock and that such information had been sufficient hoto make an informed decision. Likewise, paragraph 5.3. of the Agreement included a merger clause that stated,
This Agreement shall embody the entire agreement between the parties hereto with respect -to acquisition of the Stock and cancels and supersedes all other previous agreements and understandings relating to the subject matter of this Agreement, written or oral, between the parties. There are no agreements, representations or warranties between the parties other than those set forth or provided herein. (Emphasis added.)
Pursuant to this merger clause, Scott agreed that the provisions of. the Agreement represented the parties’ full understanding of the terms and -representations of the sale, of his stock to Joy. ,
Due to the lack of particular allegations of a false representation of material fact, the information that Scott admittedly had prior to the sale, and his acknowledgment that he had everything he needed, to make an informed decision about the sale of his stock and that there were no representa tions between the parties, outside the Agreement, we hold that the trial court did not abuse its discretion in dismissing Scott’s claim for deceit. He failed to state facts to support his claim that appellees made a false representation of material fact or that he justifiably relied • on any alleged false representation of material fact by appellees. We affirm on this point.
. III., Unjust Enrichment
Scott' contends that the trial court abused its discretion in dismissing his unjust-enrichment claim. His argument under this point is brief, conclusory, and lacks citation to authority, stating that “his claim for restitution is directly connected to his previous ownership interest in Families and the windfall obtained by Joy Davis when she obtained ownership of the shares through deception.”
|nUnjust enrichment is based on the principle that one person should not be permitted to unjustly enrich himself at the expense of another but should be required to make restitution of or for property or benefits received, retained, or appropriated, whether requested or not, when it is just and equitable that restitution should be made. Kapach v. Carroll, 2015 Ark. App. 466, at ¶¶ 4-5, 468 S.W.3d 801, 804. It is not necessary, in order to create án obligation to make restitution, that the party unjustly enriched should have been guilty of a wrongful act. Id. at 5, 468 S.W.3d at 804-05. The question is simply whether he obtained something of value under such circumstances that, in equity and good conscience, he ought not to retain. Id., 468 S.W.3d at 805.
We affirm the trial court’s dismissal of Scott’s unjust-enrichment claim but not for the reasons stated by the trial court. One is not unjustly enriched by receipt of that to which he is legally entitled. Coleman’s, Serv. Ctr., Inc. v. F.D.I.C., 55 Ark. App. 275, 299, 935 S.W.2d 289, 302 (1996). It is generally held that, where there is an express contract, the law will not imply a quasi- or constructive contract. Id. at 299, 935 S.W.2d at 302. It has been held that the quasi-contractual principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties. Id., 935 S.W.2d at 302. “[T]he law never accommodates a party with an implied contract when he has made a specific one on the same subject matter.” Id., 935 S.W.2d at 302. We have stated that the “concept of unjust enrichment has no application when an express written contract exists.” Id., 935 S.W.2d at 302 (citing Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 268-69, 683 S.W.2d 239, 240 (1985)), p¿Because there is an express written contract in this case — the Agreement — the principle of unjust enrichment has no application. Therefore, we affirm the trial .court’s dismissal of Scott’s unjust-enrichment claim.
IV. Rescission
Scott’s final point on appeal is that the trial court abused its discretion in finding that he failed to allege sufficient facts sup porting his request for the remedy of re-, scission. Based on our holdings herein— affirming the dismissal of all three of Scott’s causes of action — we affirm the denial of Scott’s request for rescission because he is not entitled to any remedy.
Affirmed.
Virden and Kinard, JJ., agree.
. Section 23-42-106 was amended in 2013, but the amended version is not applicable in this case.
. More specifically, he alleged that Joy implied that she would cause Scott to incur an unfunded tax liability by suspending payment of dividends. In order to get her point across, she told him that she was a minority shareholder in another company that had previously made ⅜ profit (which was passed through, tit the shareholders) but that the company did not distribute any dividends to allow the shareholders to pay taxes on the profits generated. Since Joy Davis had exclusive control over the company, Scott Davis was fearful that Joy Davis would refuse to declare a dividend, resulting in him incurring a significant tax liability.
. The Agreement was attached to Scott’s complaint; therefore, it was a part of that pleading for all purposes. Ark. R. Civ. P. 10(c) (2015).
. The Eighth Circuit in Tanenbaum interpreted the language of section 23-42-109 to mean that a potential buyer of securities does not have the legal power to give the seller permission to sell any security to the buyer without first undertaking to comply with all the requirements imposed by the Act. Tanenbaum, 885 F.2d at 469.
. The trial court dismissed the unjust-enrichment claim based on Scott’s lack of standing. We can affirm the trial court if the right result is reached, even if it is for a different reason. Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. 460, at ¶ 6, 2015 WL 8482788.
. There are exceptions to the rule. “An express contract cannot be circumvented by unjust enrichment"; however, “when an express contract does not exist, is void, or does not provide an answer, these alternative theories may be asserted.” Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, at ¶ 23, 381 S.W.3d 21, 37 (citing 1 Howard W. Brill, Arkansas Law of Damages § 31:2 (5th ed. 2010)). None of the exceptions apply to the instant case. | [
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PAUL E. DANIELSON, Associate Justice
| Appellants Lambert and Lambért Investors, Inc., and Glendon Lambert (collectively, “Lambert”) appeal from the order of the Desha County Circuit Court granting the motion for class certification under Arkansas Rule of Civil Procedure 23 (2015) filed by appellees Craig Harris and Tabitha. Harris, individually and as class representatives. on behalf of themselves and all others similarly situated (collectively, “the Harrises”). .Lambert asserts that the circuit court abused its discretion in finding that the elements of commonality, predor minance, superiority, and typicality had been satisfied and erred in determining substantive issues during the class-certification stage of the prdceédings. We affirm the cifcuit court’s order.
LThe Harrises initially brought suit against Lambert on their own behalf; however, by their first amended and second amended complaints, they sought' relief on behalf of all similarly situated persons, alleging that Lambert had violated article 19, section 13, of the Arkansas Constitution by charging usurious rates of interest and had engaged in deceptive-trade practices when Lambert had entered into contracts for the sale and purchase of real property with members of the proposed class. In their second amended complaint, the Harrises sought relief in the form of the following:
(a) certification of the class as proposed, and costs and expenses for recognizing, approving, and certifying the class; (b) judgment for compensatory, consequential and punitive damages for usury and deceptive trade practices in an amount more than required for federal court jurisdiction in diversity of citizenship cases; (c) cancellation of future interest on any active, usurious contract with Lambert and Lambert Investors, Inc.; (d) judgment for • reasonable attorney’s fees and. costs incurred herein; and (e) any and all other just and proper relief.
Lambert denied the material allegations and asserted the affirmative defenses of waiver, accord and satisfaction, set-off, release, mistake, and failure to state a claim upon which relief could be granted, as well as comparative fault, discharge in. bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by, fellow servant, laches, license, payment, res judi-cata, statute of frauds, statute of limitations, collateral estoppel, preemption, discharge, and novation. .
. The Harrises subsequently moved for class certification, contending that each requirement of Rule 23 had been satisfied. Lambert opposed the motion, asserting that the motion was premature and disputing that the Rule’s requirements had been met. Following.|sa hearing on the issue of class certification, the circuit court entered its,-order on March 10, 2015, granting the Harrises’ motion, which had sought identification of the class .as-
[a]ll Arkansas citizens who made payments on contracts for the sale and pur chase of Arkansas real property entered into with ... Lambert and Lambert Investors, Inc. in the five year period preceding the date [the Harrises’] First Amended Complaint was filed and whose contracts state on their face a rate of interest in -excess of 5% per annum- above the federal reserve -discount rate in effect on the date the contracts were signed,
and finding that Rule 23’s requirements of numerosity, commonality, 'typicality, adequacy, predominance, and superiority had been fulfilled. Lambert now appeals.
I. Commonality, Predominance, and Superiority
Lambert first takes, issue with .the circuit court’s findings-on commonality and predominance. He claims that commonality is lacking because a fundamental analysis of the parties’ intent to form-, each contract is required on an- individual basis in regard to both whether the rate of. each contract-was usurious and. whether .a deceptive trade practice occurred. Lambert further asserts that testimony as to each class member’s -understanding of the terms of his or her respective contract will .be required, thereby resulting in a lack of superiority. He submits that each. class member’s claim is unique, requiring testimony and a unique analysis, which he .asserts destroys both requirements of predominance and superiority. Likewise, he claims, commonality is destroyed because there is no common pattern to address each class member’s claim..
The Harrises respond that Lambert engaged in a common. course of conduct when he negotiated, processed, and financed all of his contracts in- substantially the same manner, on ^substantially the same terms, for all members;of the pro-¡ posed class. They maintain that this common course of conduct gave rise to the repetitive, similar claims by each class, member. The. Harrises further contend that the common questions found by the circuit .court predominate and that class certification is certainly the more efficient manner to handle the class members’ cases, thereby meeting the requirement of superiority.
Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and provides, in pertinent part:
(a) Prerequisites to Class Action. One or more members of a class may sue' or be sued as representative parties oil behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are, satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the-fair and efficient adjudication of the controversy. At an early practicable time after .the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. For purposes of this subdivision,, “practicable” means reasonably capable of being accomplished. An order under this section may be altered -or amended at any time before the court enters final judgment. An order certifying-a class action must define the class -and the class claims, issues, or defenses.
Ark. R. Civ. P. 23(a), (b). Our law is well settled that the six requirements for class-action certification are (1) numer-osity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. This court will not reverse a circuit court’s ruling on class certification absent an | Kabuse of discretion. See id. In reviewing a circuit court’s class-certification order, “this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification.” Id. at 14-15, 381 S.W.3d at 33 (quoting Gen. Motors Corp. v. Bryant, 374 Ark. 38, 42, 285 S.W.3d 634, 638 (2008)). We have held that “neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied.” Id. at 15, 381 S.W.3d at 33 (quoting Bryant, 374 Ark. at 42, 285 S.W.3d at 638). Our court has said on this point that “a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action.” Id. at 15, 381 S.W.3d at 33 (quoting Bryant, 374 Ark. at 42, 285 S.W.3d at 638). We therefore view the propriety of a class action as a procedural question. See id.
Turning to Lambert’s contention that commonality is lacking, Rule 23(a)(2) requires the circuit court to make a determination that “there are questions of law or fact common to the class.” Ark. R. Civ. P. 23(a)(2). This court’s case law establishes that this requirement be case specific. See Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). Rule 23(a)(2) does not require that all questions of law or fact be common; rather, the standard is that there need be only a single issue common to- all members of the class. See id. Moreover, when the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected. See id. Here, the circuit court found that Lambert used the same master contract Containing similar contract language in his ^transactions with each member of the proposed class. Moreover, each member claims that, by using these contracts,. Lambert charged interest in usurious amounts and, by doing so, engaged in deceptive trade practices.
With respect to predominance, Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Ark. R. Civ. P. 23(b). Predominance is a more stringent requirement than commonality. See GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, 465 S.W.3d 826. We have explained that the starting point in examining the predominance issue is whether a common wrong has been- alleged against the defendant. See id. If a-case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied, even if the circuit court must subsequently determine individual damages issues in bifurcated proceedings. See id.
Lambert, however, argues that individual questions exist, which are so pervasive in nature that they destroy commonality and predominance. We disagree. The mere fact that individual issues and defenses may be raised by Lambert regarding the recovery of individual members cannot defeat class certification when there are common questions concerning Lambert’s alleged wrongdoing that must be resolved for all class members. See Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005). The common issues regarding usury and deceptive trade practices can be addressed before individual issues are resolved. To that end, we cannot say that the circuit court abused its discretion in concluding that the commonality and predominance requirements were satisfied.
|7The next question, then, is whether the requirement of superiority is lacking. This court has repeatedly held that the superiority requirement is satisfied if class certification is the more efficient way to handle the case, and it is fair to both sides; See FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008). Real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See id, When a circuit court is determining whether class-action status is the superior method for adjudication of a matter, it may be necessary for the circuit court to evaluate the manageability of the class. See id.
Lambert appears to take the position that there is no one set of operative facts common to all class members and superiority is therefore lacking. Yet, as already set forth, there are common issues presented in the instant case that predominate over any possible individual issues. In addition, attached to the circuit court’s order of certification is a chart of sixty-nine potential class members already identified by the Harrises. As we have previously observed when examining superiority, the avoidance of multiple suits lies at the heart of any class action. See Campbell, 2011 Ark. 157, 381 S.W.3d 21. And finally, we have held that proceeding as a class action is fair to both sides. See id. Based on the record before us, there was no abuse of discretion on the part of the circuit court in finding that the requirement of superiority had been met.
II. Substantive Issues
Lambert next contends that the circuit court erred in determining substantive issues during the class-certification stage of the proceedings. Specifically, he avers that in reaching |sits determination on class certification, the circuit court concluded that Arkansas law applied to the contracts at issue.: .The Harrises respond that, while the circuit court’s order referenced the language in the master contract invoking Arkansas law, the circuit court’s mention thereof in no way precludes any federal-preemption defense by Lambert.
A careful review of the circuit court’s order reveals that Lambert’s argument is without merit. In its order, the circuit court did reference the contract language dealing with the applicability of Arkansas law; however, the circuit: court in no way decided the issue of whether Arkansas law was indeed applicable. To the contrary, the circuit court specifically found that
[defendant Lambert argues that Plaintiffs misinterpret the statute of limitations governing usury claims, and separately, that Plaintiffs’ usury claims have been federally preempted. However that may be, at least for purposes of class certification, this Court is not to consider the validity of these defenses, because class certification is a purely procedural issue.
III. Typicality
As his final point on appeal, Lambert asserts that the circuit court abused its discretion in finding that typicality was not lacking. He avers that the claims of the putative class members are “subject to separate defenses” and, therefore, 'the class lacks typicality. The Harrises counter that there was no error on the circuit court’s part.
This court has long held that the typicality requirement is satisfied if the class representative’s claim arises from the same common wrong alleged by the members of the class. See Simpson Housing Sols., LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. We have often quoted with approval the following language from Newbérg’s treatise on class actions:
| ^Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute á collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff s injury arises from or is directly related to a wrong to a class, and that .wrong includes- the wrong to the plaintiff. Thus, a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are' based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff arid the class sought to be represented, the- typicality requirement is usually met irrespective of varying fact patterns which' underlie individual claims.
FirstPlus, 372 Ark. at 476, 277 S.W.3d at 584 (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 3.13, at 166-67 (2d ed. 1985)) (emphasis in FirstPlus). In determining whether the typicality requirement has been met, this court focuses on the defendant’s conduct — not on the injuries or damages suffered by the plaintiffs. See Hernandez, 2009 Ark. 480, 347 S.W.3d 1.
As this court observed in Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008), the correct inquiry focuses on whether the claims of the representatives and the class members are based on the same legal theory and include allegations that the same illegal conduct affects the representatives and the class seeking to be represented. In the instant case, the Har-rises alleged that Lambert charged a usurious amount of interest and engaged in deceptive trade practices in his execution of the contract with them for the sale and purchase of real property, and this allegation is the same for all putative class members. The essence of the typicality requirement is the conduct of the defendants and not the varying fact patterns and degree of injury or damage to individual class members. See BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). We cannot say that the circuit court abused its discretion in finding that the requirement of typicality had been established.
For all of the foregoing reasons, we affirm the circuit court’s order.
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