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Per Curiam.
Appellant Justin Lee McKeown, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Terry Goodwin Jones, states in the motion that she admits responsibility for failing to timely file the record.
This court clarified its treatment of motions for rule on the clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney 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., 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 or she has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Ms. Jones 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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Donald L. Corbin, Justice.
Appellant Travis Wayne Davis, Jr., appeals the judgment and commitment order of the Lonoke County Circuit Court convicting him of (1) manufacturing a controlled substance, methamphetamine; (2) possession of a controlled substance, methamphetamine, with intent to deliver; (3) possession of drug paraphernalia with intent to manufacture methamphetamine; (4) possession of drug paraphernalia; (5) possession of a controlled substance, marijuana, third offense; and (6) maintaining a drug premises. Appellant filed a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b), whereby he reserved his right to appeal from the circuit court’s denial of his motion to suppress evidence seized during the nighttime search of his business. Appellant was sentenced to 120 months’ imprisonment on each, to run concurrently. On appeal, Appellant argues that the circuit court erred in denying his motion to suppress because (1) the judge who signed the search warrant was not a neutral and detached magistrate due to his concurrent position as an Assistant Attorney General for the State of Arkansas, and (2) the good-faith exception, enumerated in United States v. Leon, 468 U.S. 897 (1984), does not apply when the affidavit for the search warrant did not recite sufficient facts to warrant a nighttime search and the warrant does not make a finding to justify a nighttime search. As this case involves an issue of first impression, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(b)(l). We find no error and affirm.
Because Appellant does not challenge the sufficiency of the evidence to convict him, it is not necessary to recite the facts in great detail. On April 17, 2004, around 4:28 a.m., Detective Keenan Carter presented an affidavit for a nighttime search warrant to District Judge Joseph Svoboda. The affidavit contained information from outside sources, as well as Detective Carter’s own observations, that a controlled substance, methamphetamine, was being manufactured at the business, Core, Inc. Based upon this affidavit, Judge Svoboda issued a nighttime search warrant for Core, Inc., owned and operated by Appellant. At the time he issued the warrant, Judge Svoboda also was an Assistant Attorney General for the State, in the criminal division, handling state and federal habeas corpus matters.
On June 22, 2004, Appellant filed a motion to suppress evidence obtained as a result of the search. On June 7, 2005, a hearing was held on the matter. The circuit court orally denied Appellant’s argument that Judge Svoboda was not a neutral and detached magistrate because of his employment with the State. Furthermore, in a June 20, 2005, letter opinion, the circuit court confirmed its ruling denying the motion to suppress based upon arguments of the partiality of the magistrate. The court also ruled that the warrant issued did not contain a judicial finding in compliance with Ark. R. Crim. P. 13.2(c); however, the court denied the motion to suppress the evidence, finding that the officer’s actions were warranted under the good-faith exception.
On August 8, 2005, Appellant filed a motion for reconsideration. The court denied this motion. Subsequently, Appellant entered a conditional plea of guilty pursuant to Rule 24.3(b), preserving his right to appeal from the court’s denial of his pretrial motion to suppress. This appeal followed.
I. Neutral and Detached Magistrate
For his first argument, Appellant maintains that the circuit court erred in denying his motion to suppress because the issuing judge was not a neutral and detached magistrate. Specifically, he asserts that Judge Svoboda cannot be a neutral and detached magistrate because he also was a full-time assistant attorney general at the time he signed the search warrant.
In reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances. See Dickinson v. State, 367 Ark. 102, 238 S.W.3d 125 (2006). We reverse only if the ruling denying a motion to suppress is clearly against the preponderance of the evidence. Id.
In Johnson v. United States, 333 U.S. 10, 13-14 (1948) (footnote omitted), the United States Supreme Court stated:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
The Supreme Court has carved out two main ways in which a magistrate can deviate from his judicial role of neutrality and detachment: (1) when he has a substantial pecuniary interest in the outcome of the case, or (2) when he is acting in a law-enforcement capacity. See Loji Sales, Inc. v. New York, 442 U.S. 319 (1979); Connally v. Georgia, 429 U.S. 245 (1977); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Shadwick v. City of Tampa, 407 U.S. 345 (1972); Coolidge v. State, 403 U.S. 443 (1971); Turney v. Ohio, 273 U.S. 510 (1927). The issue in this case involves the latter of the two.
This court has adopted the rule that a magistrate cannot be neutral and detached if he is acting in a law-enforcement capacity. See Echols v. State, 326 Ark. 917, 952, 936 S.W.2d 509, 526 (1996) (holding that “[w]hen a judicial officer becomes so involved in the investigation as to be deemed a participant, he has abandoned this role”). While this court has not reviewed the situation where an issuing magistrate is also an assistant attorney general, other jurisdictions have dealt with comparable situations.
In Coolidge, 403 U.S. 443, a state attorney general, authorized as a justice of peace, issued a warrant authorizing the search of an automobile and was actively in charge of the investigation, as well as the prosecution at trial. The Supreme Court found that the attorney general’s actions disqualified him as a neutral and detached magistrate as required by the Fourth Amendment. Id. Specifically, the Court concluded that the search and seizure of the appellant’s automobile could not “constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor.” Id. at 453. Additionally, in Lo-Ji Sales, 442 U.S. 319, the Supreme Court found that “[t]he Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure” because “[h]e allowed himself to become a member, if not the leader, of the search party which was essentially a police operation.” Id. at 326-27. These cases stand for the rule that an issuing magistrate cannot be neutral and detached if he is actively involved in the investigation and the “competitive enterprise of ferreting out crime.” Johnson, 333 U.S. at 14.
In the present case, Judge Svoboda is both a part-time district judge and an assistant attorney general. Appellant has presented no evidence, besides the nature of Judge Svoboda’s employment with the State, that the judge was not neutral and detached. Specifically, no evidence was presented that Judge Svoboda actively involved himself in the investigation similar to the magistrates in Coolidge and Lo-Ji Sales. Therefore, the circuit court did not err in finding that the judge was a neutral and detached magistrate.
Moreover, this conclusion is supported by decisions from both federal circuit courts and state supreme courts. See United States v. McKeever, 906 F.2d 129, 131 (5th Cir. 1990) (holding “a magistrate may retain certain law enforcement duties without losing her neutrality”); State v. Schoonover, 281 Kan. 453, 517, 133 P.3d 48, 91 (2006) (quoting Green v. State, 676 N.E.2d 755, 761 (Ind. App. 1996)) (holding that an issuing judge is neutral and detached, despite previously representing the defendant, as “ ‘[t]he requirement that a warrant must be issued by a neutral and detached magistrate does not equate to a constitutional mandate requiring that a judge have no contact with or knowledge of the case or the defendant’ ”); Wilson v. State, 333 N.E.2d 755, 760-61 (Ind. 1975) (holding “that a law partner of a deputy prosecutor is not ipso facto disqualified from issuing a search warrant in a case in which the deputy may be or may become involved in any degree”). See also United States v. Waters, 786 F. Supp. 1111, 1117 (N.D.N.Y. 1992) (holding that a magistrate, who was formerly an Assistant United States Attorney, was a neutral and detached magistrate when there was no “concrete evidence that [the magistrate] was involved in his prior capacity as Assistant United States Attorney in an investigation of defendant in an open criminal file to which he was assigned”). Thus, our holding that Judge Svoboda was a neutral and detached magistrate when he signed the search warrant is in line with other jurisdictions. As such, the circuit court did not err in denying the motion to suppress.
II. Nighttime Search
Appellant’s second argument asserts that the circuit court erred in denying his motion to suppress based upon its ruling that the good-faith exception applied when the affidavit for the search warrant did not recite sufficient facts to warrant a nighttime search. Specifically, Appellant is not challenging the insufficiency of the affidavit and the court’s finding that the warrant lacked a judicial finding in compliance with Rule 13.2(c), but rather, that an insufficient factual basis for a nighttime search warrant is a substantial violation thus rendering the good-faith exception inapplicable. The State counters that the judge’s decision to issue a nighttime search warrant was based upon probable cause established by the affidavit. We agree with the State.
As stated above, in reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances. See Dickinson, 367 Ark. 102, 238 S.W.3d 125. We reverse only if the circuit court’s ruling denying a motion to suppress is clearly against the preponderance of the evidence. Id. In this case, the circuit court ruled that the warrant issued did not contain a judicial finding that complied with Rule 13.2(c). Because the warrant was issued based upon the presented affidavit, it can be concluded the circuit court found that the affidavit lacked sufficient factual information to support a nighttime warrant. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).
Rule 13.2(c) provides that the issuing judicial officer may authorize a search at any time, day or night, if there is reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy[.]
Whether the reasonable or probable cause requirement is met turns on the adequacy of the affidavit or recorded testimony. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). Because there was no recorded testimony given in support of the affidavit, we may not look to facts outside of the affidavit to determine probable cause. Moya v. State, 335 Ark. 193, 981 S.W.2d 521 (1998).
Probable or reasonable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Dickerson v. State, 363 Ark. 437, 214 S.W.3d 811 (2005); Bennett v. State, 345 Ark. 48, 44 S.W.3d 310 (2001). In assessing the existence of probable cause, our review is liberal rather than strict. Id. We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). Moreover, mere conclusions are insufficient to justify a nighttime search. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993).
In this case, Detective Carter presented an affidavit to Judge Svoboda seeking a nighttime search warrant. This affidavit contained statements of fact based upon Detective Carter’s personal observations, as well as information he had received over a period of six weeks related to the manufacturing, sale, and use of methamphetamine taking place at Appellant’s business. Also, he stated that on April 14 and 15, 2004, while conducting surveillance of the business, he observed individuals entering and exiting the building carrying various bags. He further explained that this activity was taking place during the nighttime and early hours of the morning. Additionally, on April 16, 2004, around 10:40 p.m., he observed numerous vehicles parked in the parking lot of Appellant’s business. He further stated that, after leaving the surveillance spot to perform a traffic stop, he went back towards the business, at which time he observed that the vehicles previously there had left. Detective Carter next described the facts surrounding Appellant’s arrest:
I then proceeded on to Kerr Road, heading north. A Chevy truck traveling south on Kerr Road approached my vehicle traveling at an excessive rate of speed. I turned my vehicle around, at which time the Chevy truck increased its speed. I initiated a traffic stop on the Chevy track, which was being operated by [Appellant]. A check via ACIC/NCIC revealed that [Appellant’s] drivers license was suspended. During a pat down search of [Appellant] prior to his arrest, I located a small plastic bag containing a white powder substance. [Appellant] related to me that he knew that I was the Police and that he was being watched. [Appellant] further related he did attempt to get away from me in his vehicle.
Detective Carter further explained that after the stop, he returned to the business to see if anyone had returned and, from outside the building, he could detect a strong chemical odor emitting from the area of an open window. Lastly, the affidavit stated that Appellant had a suspended license and the passenger of the truck had an active arrest warrant. Both men also had prior convictions for controlled substances.
Upon review of the affidavit, we conclude that it contained language that would give cause to believe that a nighttime search was reasonable. The affidavit presented information that Appellant was aware the business was being watched, Appellant attempted to get away from the police, numerous other individuals were seen going in and out of the business carrying bags during nighttime and early morning hours, Appellant had a white powder substance on his person when he was arrested, and there was a strong chemical odor emitting from the area of an open window. While we have held that a strong chemical odor is not a reasonable basis for a nighttime search, see Fouse, 337 Ark. 13, 989 S.W.2d 146, this, viewed in light of the totality of the facts within the affidavit, was sufficient to support the judge’s finding that reasonable cause existed to issue a nighttime search warrant. Specifically, Appellant’s comments that he knew he was being watched and that there were other individuals who had been transporting bags in and out of the business late at night are sufficient to give cause to believe that the requirements of Rule 13.2(c) were met.
Lastly, there is no requirement within Rule 13.2(c) that the warrant contain an express judicial finding as to why the magistrate issued the nighttime search warrant. Cf. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). As such, the circuit court erred in concluding that the warrant was not in compliance with Rule 13.2, and, thus, in applying the good-faith exception. While the court erred in its reasoning, the court’s judgment should be affirmed as reaching the right result for the wrong reason. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).
Affirmed.
Hannah, C.J., Brown and Imber, JJ., dissent.
A companion case, Davis v. State, 367 Ark. 341, 240 S.W.3d 110 (2006), is also decided this date.
We take this opportunity to note that while an issuing magistrate’s concurrent employment with the State Attorney General’s office is not a per se violation of the “neutral and detached” requirement, this is not an encouraged practice as it could give rise to the appearance of impropriety.
There is no substantive distinction between the terms “reasonable” and “probable” cause. Yancey, 345 Ark. 103, 44 S.W.3d 315. | [
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Per Curiam.
Appellants Glenn David Woods and Leann B. Woods filed a motion for rule on the clerk seeking an order of this court that the Arkansas Supreme Court Clerk accept their record and transcript for fifing. Appellants attempted to file their record and transcript on June 19, 2006, under an extension of time granted by the circuit court on March 16, 2006, pursuant to a motion for extension under Ark. R. App. P — Civ. 5(b). The clerk refused the fifing because there was no finding by the circuit court in the order granting the extension that “all parties had the opportunity to be heard on the motion, either at a hearing or by responding in writing” as required in Ark. R. App. P.-Civ. 5(b)(1)(C).
Appellants assert that the record shows that opposing counsel was served with the motion for extension of time when the motion was filed on February 24, 2006. Appellants argue that opposing counsel thus had an opportunity to be heard and elected not to respond to the motion.
Arkansas Rules of Appellate Procedure-Civil 5(b)(1)(C) provides in relevant part:
(b) Extension of time.
(1) If any party has designated stenographicaily reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period... may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing.
Strict compliance with the requirements of Rule 5(b) is required. Hairgrove v. Oden, 365 Ark. 53, 223 S.W.3d 827 (2006) (per curiam). Granting of an extension is not a mere formality. Id. Under Ark. R. App. P.-Civ. 5(b)(1), an extension of time maybe granted only if the circuit court makes the findings set out in the rule, including a finding that all parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing. Proof of service of the motion for an extension of time under Ark. R. App. P.-Civ. 5(b) is not a finding by the circuit court. Accordingly, we remand this matter to the circuit court for compliance with Rule 5(b)(1)(C).
Gunter, J., concurs. | [
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Per Curiam.
Appellant Brenna Keesee filed a motion for rule on clerk seeking an order of this court directing the Arkansas Supreme Court Clerk to accept her record for filing. Appellant attempted to file her record on September 6, 2006, pursuant to a motion for extension of time to file the record under Arkansas Rules of Appellate Procedure - Civil 5(b), and an order by the circuit court granting an extension to September 9, 2006. The clerk refused the filing because there was no finding in the order by the circuit court that “all parties had the opportunity to be heard on the motion, either at a hearing, or by responding in writing” as required by Rule 5(b)(1)(C).
Arkansas Rules of Appellate Procedure - Civil 5(b)(1)(C) provides in part:
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(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writingf.] (Emphasis added.)
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, e.g., Woods v. Tapper, 367 Ark. 239, 238 S.W.3d 929 (2006) (per curiam); Hairgrove v. Oden, 365 Ark. 53, 223 S.W.3d 827 (2006) (per curiam). The order of extension in this case makes no reference to the findings of the circuit court required under Rule 5(b)(1)(C). Accordingly, we remand this matter to the circuit judge for compliance with Rule 5(b)(1)(C).
Remanded. | [
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Per Curiam.
Ellis Charles Butler was convicted by a jury of three counts of rape. The victim was under the age of fourteen. He was sentenced to thirty-two years’ imprisonment on each count to be served consecutively, for an aggregate sentence of ninety-six years’ imprisonment.
Currently pending before this court is appellant’s appeal from the denial of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. In order to reach the merits of this appeal, it is necessary to review the history of this case. A time line of relevant events is as follows.
1997 Appellant was convicted by a jury of three counts of rape and four counts of violation of a minor in the first degree. Appellant appealed the convictions.
1999 Based on the trial court’s refusal to grant a continuance when appellant hired new counsel, this court reversed and remanded the case for a new trial. Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999).
2001 On remand, appellant was convicted by a jury of three counts of rape after the other counts against appellant had been severed. Appellant appealed the convictions.
6-13-2002 We affirmed appellant’s 2001 convictions. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002).
7-2-2002 This court’s clerk issued a mandate remanding the case to the Faulkner County Circuit Court, but the mandate was erroneously dated June 2, 2002.
8-12-2002 Appellant timely filed a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Appellant and the State subsequently filed numerous responses, replies and motions related to appellant’s petition.
8-28-2002 Appellant filed a pro se motion for leave to amend his pro se Rule 37.1 petition.
9-4-2002 The trial court entered an order denying appellant’s pro se Rule 37.1 petition as being untimely filed, based upon the erroneous date shown on the clerk’s mandate.
12-2-2002 The trial court entered a second order denying appellant’s pro se Rule 37.1 petition as being untimely filed.
1-6-2003 Appellant filed a pro se motion for the trial court to reconsider the matter of timeliness.
I-10-2003 Appellant filed a pro se notice of appeal from the trial court’s order denying appellant’s pro se Rule 37.1 petition as being untimely.
3-7-2003 Appellant filed in this court a pro se motion to correct the clerical error in the clerk’s mandate.
3-20-2003 Appellant filed in this court a pro se motion to compel the trial court to recall its order denying appellant’s pro se petition for postconviction relief.
5-15-2003 We issued a per curiam order granting appellant’s pro se motion to correct the clerical error, and denying appellant’s pro se motion to compel. Butler v. State, CR 01-487 (Ark. May 15, 2003) (per curiam).
9-5-2003 Appellant filed in this court, through attorney Craig Lambert, a petition for belated appeal from the trial court’s September 4, 2002 order denying appellant’s pro se Rule 37.1 petition.
9-25-2003 We issued a per curiam order granting appellant’s petition for belated appeal. Butler v. State, CR 03-1161 (Ark. Sept. 25, 2003) (per curiam).
II-18-2004 Based on the erroneous date contained in the clerk’s mandate and the trial court’s holding that appellant’s pro se petition for postconviction relief was untimely filed, this court reversed and remanded the case to the trial court to consider appellant’s postconviction petition for relief. Butler v. State, CR 03-1161 (Ark. Nov. 18, 2004) (per curiam)
12-6-2004 Appellant filed in the trial court a pro se motion for leave to amend appellant’s Rule 37.1 petition, as well as an amended pro se Rule 37.1 petition.
12-7-2004 This court’s clerk issued a mandate to the Faulkner County Circuit Court Clerk, remanding the case and reinvesting the trial court with jurisdiction.
1-31-2005 The State filed its response to appellant’s pro se motion to file an amended Rule 37.1 petition. In its response, the State did not oppose the motion. The State also filed its response to appellant’s amended pro se Rule 37.1 petition.
2-7-2005 Appellant filed a pro se reply to the State’s response.
2-23-2005 Attorney Craig Lambert filed his entry of appearance on behalf of appellant in the trial court, and filed a motion for leave to amend appellant’s Rule 37.1 petition, seeking an additional 120 days’ time to file the amended petition.
3-10-2005 The State filed its response to appellant’s motion, filed by attorney Lambert, for leave to file an amended Rule 37.1 petition. In its response, the State objected to the filing of an amended petition.
3-21-2005 The trial court entered an order that: (a) granted appellant’s pro se motion for leave to amend; (b) ruled on the merits of appellant’s original pro se petition and amended pro se petition, denying relief with prejudice; and (c) denied appellant’s motion, filed by attorney Lambert, for leave to file an amended petition.
From the trial court’s March 21, 2005, order comes the instant appeal. Appellant’s sole point on appeal is that the trial court erred in refusing to grant counsel’s motion for leave to file an amended Rule 37.1 petition. Appellant does not contest the trial court’s ruling on the merits of appellant’s original pro se petition and amended pro se petitions.
We review a circuit court’s denial of leave to amend a petition by an abuse-of-discretion standard. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004) (citing Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003)). Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004); O’Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004). In other words, we determine whether the trial court’s decision was arbitrary or groundless. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).
Initially, a procedural matter must be addressed. Here, appellant filed in the trial court a total of three motions for leave to amend appellant’s Rule 37.1 petition. The first motion was filed pro se prior to the belated appeal. The trial court never addressed this motion.
The next motion was filed pro se prior to the issuance of this clerk’s mandate that reinvested the trial court with jurisdiction after the belated appeal. On the same day, appellant also filed a pro se amended Rule 37.1 petition. The third motion for leave to file an amended petition was filed by appellant’s attorney after jurisdiction over the matter had been returned to the trial court. The trial court granted the former motion, but denied the latter motion.
If a petitioner files a Rule 37.1 petition, including an amended petition, in the trial court before the issuance of a mandate by this court following an appeal, then the petition is of no effect. See e.g., Worthem v. State, 347 Ark. 809, 66 S.W.3d 665 (2002) (per curiam), citing Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). In Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam), we held that a circuit court may not grant relief on a petition for which it does not have authority to consider. The rationale for this decision is that the trial court does not regain jurisdiction over the case until the mandate is issued. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994) (per curiam); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945). A court must have jurisdiction before it can do more with respect to a Rule 37.1 petition than examine it to see if it is timely. Doyle, supra; Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989) (per curiam).
Because the second pro se motion for leave to amend and the amended pro se petition were filed when the trial court had no jurisdiction over this matter, those pleadings were of no effect due to the trial court’s lack of jurisdiction over those pleadings. Thus, the pleadings that remained for the trial court to consider would have been the original pro se petition, the pro se motion for leave to amend the petition filed prior to appeal and the motion for leave to amend filed by appellant’s attorney after appeal. As a result, the trial court, in its order of March 21, 2005, erroneously addressed the pro se motion and amended petition filed on December 6, 2004.
Proceeding to the appeal in the instant matter, the State objected to counsel’s motion for leave to amend, whereas the State did not object to appellant’s pro se motion, now considered of no effect. In its response to counsel’s motion, the State complained that appellant should not be allowed to amend his petition as he has had the benefit of the two previous years “to consider the State[’]s arguments against his original petition,” thereby giving appellant an unfair advantage over the State. The State also claimed that granting counsel’s motion would be opening the door to an “unending succession of petitions.” Further, the State contended that counsel failed to set forth in his motion “some legitimate ground or justification for the amendment[.]” The trial court denied counsel’s motion for leave to amend based on unfair advantage and appellant’s failure to cite a legitimate ground or justification for filing an amended petition.
We first consider the considerable passage of time in this matter and any advantage accruing to the benefit of appellant as a result thereof. The period between appellant’s original Rule 37.1 petition and the trial court’s final order denying the petition amounted to more than two and one-half years. However, we cannot say that appellant failed to act with diligence during that period of time. The history of this matter set out above indicates that appellant acted with persistence in an effort to move the case •forward, whether before this court on appeal or before the trial court after each remand. The State’s contention that appellant benefitted from the lapse of time in this postconviction matter is without merit. For a period of time of almost two years, appellant was before this court seeking a reversal of the trial court’s order regarding untimeliness — a situation that he did not create.
As support for the proposition that appellant is required to state a legitimate ground or justification for filing an amended petition, the State and the trial court cited this court’s decision in Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Rowbottom, however, stands for the proposition that when seeking to file a petition in excess of the ten-page limit provided in Ark. R. Crim. P. 37.1(b), a motion must set forth a legitimate ground or justification for an enlarged petition. Here, appellant’s counsel did not seek to file an enlarged petition. Rule 37.2(e) contains no such prerequisite, and requires only that a petitioner file the motion for leave to amend before the trial court acts on the original petition. Furthermore, appellant’s attempt to amend his postconviction petition did not occur on the day of the Rule 37 hearing. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999).
From the above-stated reasons, we conclude that the trial court abused its discretion in denying counsel’s motion for leave to amend appellant’s Rule 37.1 petition. Accordingly, we remand this matter to the trial court to issue an order permitting appellant to file an amended Rule 37.1 petition.
Reversed and remanded.
We note that attorney Lambert’s representation of appellant was limited to the belated appeal.
The State and the trial court erroneously stated that this pleading was filed on December 2,2004.
After filing his pro se amended petition, appellant again sought legal representation by attorney Lambert in early 2005.
Arguably, appellant would have been the recipient of the same unfair advantage when he filed his 2004 pro se pleadings; yet, the State did not raise this argument in response to those pleadings. It is noteworthy that counsel’s motion was filed less than three months after appellant filed his pro se pleadings in December, 2004. | [
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Richard B. Adkisson, Chief Justice.
This litigation was originally before this Court in Des Arc Bayou Watershed Improvement District v. Finch, 271 Ark. 603, 609 S.W. 2d 70 (1980); we held that appellee, a landowner, could recover his attorneys’ fees if appellant, the condemnor, had acted in bad faith in instituting and then later abandoning condemnation proceedings. We remanded for a finding by the trial court on the issue of bad faith. On remand, the White County Circuit Court found that appellant had acted in bad faith and that appellee could recover his attorneys’ fees; on appeal from that judgment, we affirm.
The Des Arc Bayou Watershed Improvement District was established in 1966 as a White County flood control and recreation project; it has never been completed although over $3,000,000 in public funds have been spent on the project. In planning the project, the Soil Conservation Service found that fifty-seven acres of appellee’s property would be affected by the project; however, appellant took the position that this property would not be damaged. Before releasing the funds for the project, the Soil Conservation Service required that appellant expressly agree to pay “such damages as are finally awarded by the Court” in condemnation proceedings. Appellant offered nothing for the property, and appellee refused to grant a needed floodage easement. Appellant then initiated condemnation proceedings against appellee’s property.
Appellant refused to pay the jury award of $30,000 in damages pursuant to Ark. Stat. Ann. § 35-1105 (Repl. 1962):
Refusal to pay award on abandonment of line — Relocation of project — Liability for costs. — Any levee or drainage district may refuse to pay the award which may have been made by any board of appraisers herein provided for, or the j udgmen t of any court assessing the damages for right of way, and abandon the line and relocate the levee, drain, ditch, or canal anew without being liable for any award or judgments rendered in any proceeding for the condemnation of right of way, except as to the costs.
Therefore the question: Was there sufficient evidence of bad faith to enable the trial court to award attorneys’ fees as “costs” under this statute?
Generally, attorneys’ fees are not recoverable as a part of the cost unless specifically authorized by statute. There is, however, an exception to that rule when the condemnor has acted in bad faith. Housing Authority of North Little Rock v. Amsler, 239 Ark. 592, 393 S.W. 2d 268 (1965). In Amsler we indicated that bad faith was inferred from the fact that the condemnor alleged in the complaint that the taking was “necessary” and then elected to dismiss the proceedings without explanation after a jury awarded damages. Bad faith was further explained in Housing Authority of North Little Rock v. Green, 241 Ark. 47, 406 S.W. 2d 139 (1966) where we held that lack of funds to pay an award did not establish good faith on the part of the condemnor, stating that the lack of funds could not be attributed to any fault of the landowner.
Here, appellant alleged in the complaint that the taking of appellee’s property was “necessary,” but after the jury awarded damages, appellant dismissed the proceeding, stating that there were insufficient funds to pay the $30,000 award. It is significant that after dismissing the proceeding and claiming that no funds were available to pay the award, appellant authorized a second condemnation proceeding in fee against the property. Under these circumstances, the claim of lack of funds is contradicted by appellant’s own actions and is an affirmative indication of bad faith. See Whitestone v. Town of South Tucson, 2 Ariz. App. 494, 410 P. 2d 116 (1966).
Appellant’s state of mind is further illustrated by the fact that an appraiser paid by appellant initially filed an appraisal with the court stating that there were no damages to appellee’s property; this same appraiser later testified at trial that he not only found damage but found damages in a substantial amount. This change in the amount of the appraisal is reflected by the trial judge’s question and the answer of Mr. Clay, attorney for the appellee:
THE COURT:
For example, Quattlebaum, $6,950. A transcript might answer this question, did Mr. Quattlebaum sign an appraisal and file it with the Court saying no damages, and then later testify in Court to $6,950 damages?
Mr. CLAY [The landowner’s attorney]: Yes, he did.
Appellant did not dispute this statement, and therefore it must be taken as true. This change of position by appellant’s own appraiser is indicative of bad faith and is attributable to appellant.
Another indication of bad faith arises from the length of time it took appellant to make the election to dismiss under Ark. Stat. Ann. § 35-1105 (Repl. 1962). The jury verdict was returned in October 1977, and judgment was entered in March 1978. Appellant filed a notice of appeal in April 1978, and the next day a six months extension for preparing the transcript was granted. Then, in May appellant decided to abandon the proceedings but did not notify the appellee of this decision until December of 1978. During this entire time the cloud and uncertainty of the condemnation action hovered about, detracting from appellant’s right to the quiet enjoyment of his property.
In light of the above instances of appellant’s bad faith, we cannot say that the trial court’s finding was clearly against the preponderance of the evidence.
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Per Curiam.
This is a petition pursuant to Rule 37.2, Arkansas Rules of Criminal Procedure (Repl. 1977). Petitioner contends he was effectively denied assistance of counsel at his original trial. The case was affirmed in the original action in an unpublished opinion by the Court of Appeals on April 29, 1981 (CA CR 81-35).
Briefly, the history of the case reveals petitioner was charged with theft of property in excess of $2500 in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). He engaged the services of three different attorneys but for one reason or another all three were disqualified or resigned. On February 29, 1980, the public defender was appointed to defend the petitioner and the case was set for trial on April 10,1980. At a hearing on April 1, 1980, the petitioner persuaded the court to allow him to serve as his own defense counsel at the trial. Although the court attempted to persuade the petitioner that it would not be wise for him to do so, it nevertheless granted petitioner the right to proceed as his own attorney. The court then informed the public defender to continue to serve in an advisory capacity and to be available for the trial. The petitioner requested an out-of-state attorney be present to testify on his behalf but for some unknown reason the out-of-state attorney was either not contacted or did not appear. However, the parties stipulated into the record what the testimony of this witness would have been had he been present. The petitioner had also requested the presence of two other witnesses and another attorney. No subpoena was issued for the local attorney, and the two other witnesses did not appear.
The trial was held on April 10, 1980; petitioner was convicted of theft of property and sentenced to a term of 20 years in the Arkansas Department of Correction with five years suspended. During the course of the trial petitioner encountered much difficulty in cross-examining witnesses. The court became annoyed by the frequent conferences between the petitioner and the public defender. The court ordered the public defender to sit down and keep quiet until the defendant requested him to do something on his behalf. On another occasion the court called a brief recess and instructed the petitioner to get with his attorney during the recess and prepare to finish the trial. Later, the court told the petitioner he was apparently unable to couch his questions in proper form but the public defender would be able to do so and thus enable the court to make a proper ruling. Petitioner was informed by the court he could still object if he disagreed with the actions of the public defender. The petitioner agreed with this proposal and allowed the public defender to do the questioning from that point on with some minor exceptions when the petitioner injected himself into the proceedings. For all practical purposes the public defender conducted the balance of the trial until the state rested.
After the state rested the public defender made several motions which were denied by the court. The court was then informed that the petitioner did not wish to take the stand. This statement was verified by the court asking the petitioner if the statement was correct and by the petitioner agreeing that he did not wish to take the stand. In fact, at this time petitioner stated that whatever the public defender said was all right with him. The court then stated:
You’re the attorney, now, and this is a judgment that you can make. Mr. Rosenzweig is just trying to get you through the technical areas of getting evidence into the court and keeping evidence out of court. But this is an area in which you can.have just as much judgment as Mr. Rosenzweig. He can advise you but is this your decision in this case?
MR. SHELTON: Yes, sir.
such capacity ...” would not apply to appellant, as he was not acting or assuming to act as a real estate broker. To so isolate this sentence would be to misinterpret the statute. The second section which gives the appellant grounds for argument reads “. . . where the licensee in performing or attempting to perform any of the acts mentioned herein . ” Again, if you read only that portion of the sentence, it would give the impression that appellant was correct in his interpretation of the statute that the Commission could only take action against a licensed broker or salesman. However, in an over-all reading of the statute it is fairly clear that the “acts mentioned herein” means the acts listed following this portion of the statute, the applicable ones being (a), (b), (h) and (j). Therefore, in reading the statute in its totality it states that the Commission shall have the power, under circumstances stated therein, to discipline a real estate broker or salesman or “ . .. any person who shall assume to act in either such capacity... .” The last quoted portion is an attempt to give the Commission authority over persons who assume to act as brokers or salesmen. We do not question appellant’s statement that in order for one to be acting as a broker or salesman he must be acting (a) for another and (b) for compensation or expectation of compensation. However, the Commission admits that appellant was not acting as a salesman or broker at the time he sold the lots in question. The Commission’s order is based primarily upon a claim of his making substantial misrepresentation or false promises concerning the building of the road in the subdivision and the reliance of the purchasers that appellant’s actions were sanctioned by the Real Estate Commission. These are grounds which may give rise to revocation or suspension and need not be made while the person is in fact acting as a broker or salesman.
One of the purposes set forth in the act is to “safeguard the interests of the public.” We have held that statutes enacted for the benefit of the public should be liberally construed to effectuate the purpose of the act. Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968). Both parties seem to place part of their argument in the case of Rothgeb v. Safeco Insurance Co. of America, 259 Ark. 530, 534 S.W. 2d 759 (1976). The Rothgeb case never came through the Real Estate Commission and thus there was no issue as to the suspension of a broker’s license. The action was brought by an individual against a real estate partnership alleging the partnership violated sections of Ark. Stat. Ann. § 71-1307 and asking for damages under a surety bond. Safeco Insurance Company was joined as a defendant because they wrote the surety bond for the Real Estate Commission at that time, and the defendants had gone into bankruptcy. In Rothgeb we stated:
We must agree with appellee’s position that since Wimpy was selling land owned by him and Steele, he could not be considered an agent or broker, which requires a license, within the meaning of § 71-1302. If Wimpy was acting solely as the owner, he would not come within the provisions of § 71-1302. . . .
We do not think Rothgeb is controlling in the present situation, as there was neither an investigation nor a finding by the Commission of improper conduct. In the present case the Commission did not suspend appellant’s license for selling the land but for promises made outside the sale which the Commission determined violated the above-mentioned provisions of the statutes and Rule 40. The appellant also relies on Bell, Commissioner v. Investment Training Institute, 271 Ark. 663, 609 S.W. 2d 919 (1981). In Bell the complaint was against a person who was running a school wherein applicants for licenses as security broker-dealers were tutored. The action of the commissioner in that case was an attempt to prevent the carrying on of the business of tutoring applicants for licenses. Again, the action was brought in the court seeking an injunction preventing appellees from performing certain acts. That is not the case in the present action.
In the present case it is obvious that appellant could have performed these very same transactions had he possessed no license at all. However, since the transactions dealt with real estate and most of the sales were initiated in his real estate office where his broker’s license was prominently displayed, we think the purchasers were entitled to rely upon appellant to act in the manner in which a broker or salesman should act. Almost every purchaser of a lot in this subdivision indicated they relied upon the fact that appellant was a, real estate broker. There is, of course, substantial evidence to support the finding of the Commission that appellant misrepresented matters and made false promises. In reviewing matters which were brought up through the Administrative Procedure Act we give much weight and credence to the action of the Board or Commission because of their knowledge of the subject matter before them. The standard of review in this court is whether there is substantial evidence to support the action of the Real Estate Commission in suspending appellant’s broker’s license for a period of six months. Ark. Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W. 2d 34 (1979). Therefore, the circuit court decision affirming the order of the Real Estate Commission is hereby affirmed.
Affirmed.
Hays, J., not participating. | [
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George Rose Smith, Justice.
Hooper, a resident of Faulkner county, filed this suit in the Faulkner circuit court, asserting one cause of action against Zajac and a different cause of action against Edwards and Chapman. All three defendants moved to quash the summons on the ground that they reside in Pulaski county and must be sued there. Hooper filed a reply alleging that his cause of action is asserted not in contract but in tort and particularly under Ark. Stat. Ann. § 27-611 (Repl. 1979), which is a venue statute. The trial judge, without hearing testimony, sustained the motion and dismissed the action, finding that the defendants reside in Pulaski county, where the alleged acts occurred. The Court of Appeals certified the case to us under Rule 29 (1) (o)and (4). We affirm as to Zajac, but reverse as to Edwards and Chapman.
The complaint alleges that at Hooper’s request Zajac, who operated a wrecking service, hooked his wrecker to Hooper’s car to transport it to Conway, but instead Zajac took the car to his place of business, where it remained for ten days. When Hooper "recovered his vehicle, the two front wheels had been removed, battery, and there had been other damage to said automobile while in possession of... Zajac. Plaintiff claims damages to his vehicle in the aggregate amount of $200.00 for property damage.” There are other vague assertions of loss, but the only prayer for relief against Zajac is for the $200 already specified. The question is whether such an action can be brought in the county where the owner of the damaged property resides.
Our 1939 Venue Act provided that actions for personal injury or death must be brought in the county “where the accident occurred” or in the county where the injured person resided. Ark. Stat. Ann. § 27-610. The act was defective in that a person injured in a highway accident might have to sue for his personal injuries in one county but for his property damage in another county, where the defendant resided. By Act 182 of 1947 the legislature remedied that defect by providing that an action for damages to personal property by wrongful or negligent act may be brought in the county where the accident occurred which caused the damage or in the county of the plaintiff’s residence. By Act 830 of 1977 the law was amended to provide also that an action for the conversion of personal property may be brought in the county of the residence of the person who owned the property when the cause of action arose. § 27-611.
Hooper’s complaint against Zajac does allege that Zajac removed two wheels and the battery from the vehicle, but the complaint is not for the conversion of those parts, which are not separately valued. Instead, the cause of action is for damages to the vehicle in the aggregate amount of $200 for property damage. Thus no cause of action for conversion is stated against Zajac. What the complaint does state is a cause of action for Zajac’s breach of contract, which may have been negligent or tortious conduct. Even so, we have consistently held that the amendment to the Venue Act, permitting an action for damages to personal property by wrongful or negligent act, refers only to damage caused by an accident involving force or violence. Sarratt v. Crouch Equipment Co., 245 Ark. 775, 434 S.W.2d 286 (1968); Evans Laboratories v. Roberts, 243 Ark. 987, 423 S.W.2d 271 (1968); International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504 (1966). There being no assertion of an accident in this case, the trial court correctly sustained Zajac’s motion to quash service.
As to Edwards and Chapman, the complaint alleges that they have in their possession household goods, furniture and other property belonging to Hooper, that they have failed and refused to allow Hooper to pick up his property, and that they have retained it and refused to deliver it, without just cause. Those allegations describe a conversion as we have frequently defined that term. Quality Motors v. Hays, 216 Ark. 264, 225 S.W.2d 326 (1949); Meyers v. Meyers, 214 Ark. 273, 216 S.W.2d 54 (1948); Hooten v. State for Use of Cross County, 119 Ark. 334, 178 S.W. 310, LRA 1916C, 544 (1915). The venue as to Edwards and Chapman is therefore in Faulkner county under § 27-611.
Affirmed as to Zajac, reversed as to Chapman and Edwards. | [
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Robert H. Dudley, Justice.
Appellee Charles Sherrell was injured while performing construction work on the Baxter-Travenol industrial plant at Ash Flat. The jury awarded $450,000 to appellee Charles Sherrell and $25,000 to appellee Bernice Sherrell for loss of consortium. Ninety percent of the. negligence was apportioned to appellant Construction Advisors, Inc., and ten percent to appellant Weaver-Bailey Contractors, Inc. We affirm.
The primary issue on appeal is whether a comment by the judge to the jury compromised the rights of the appellants. While the issue is simple, the facts leading to the comment are rather complex. Baxter-Travenol Laboratories desired to construct a large industrial plant in Ash Flat and entered into a contract with appellant Construction. Ad-visors. A part of the contract was that Construction Advisors would procure all of the contractors and subcontractors who would actually construct the plant. Construction Advisors was to have all of the supervisory responsibility over the construction work and had the specific duty of seeing that there was compliance with all safety laws and regulations. Appellant Construction Advisors subsequently entered into a contract with Fiske-Carter Construction Company to perform the rough carpentry work and the masonry work. Appellee Charles Sherrell was an employee of Fiske-Carter. Appellant Weaver-Bailey was a concrete subcontractor under Fiske-Carter. The contracts of Fiske-Carter and Weaver-Bailey provided that they would comply with all safety codes. On the date of the injury Charles Sherrell was directed by his Fiske-Carter supervisor to assist one of Weaver-Bailey’s crews in the finishing of a concrete floor. He was severely injured trying to move a 40-foot vibrating screed used to level wet concrete. Fiske-Carter’s workers’ compensation carrier commenced making payments to appellee. Because workers’ compensation is an exclusive remedy for workers injured in the course of their employment, Charles Sherrell was prohibited by law from suing his employer, Fiske-Carter. However, Sherrell did have a cause of action against appellants Construction Advisors and Weaver-Bailey for failing to follow safety codes and creating an unreasonably dangerous work area. The appellees filed their suit against appellants and then appellant Construction Advisors filed a third party complaint against FiskeCarter alleging that their contract provided for indemnity to appellant Construction Advisors. Two material procedural steps took place prior to trial: One, the indemnity suit by appellant Construction Advisors against Fiske-Carter Construction Company was severed for a later trial and, two, the trial court granted appellees’ threshold motion to prohibit mention of the fact that appellee had received workers’ compensation benefits.
During opening statement, during cross-examination and during closing argument the apparent strategy of appellant Construction Advisors was to lead the jury to believe there was some importance to the absence of FiskeCarter. To illustrate, we quote from one of the many references to Fiske-Carter, this particular one being made during appellants’ opening statement.
Fiske-Carter was Mr. Sherrell’s employer. The Plaintiffs have chosen not to sue Fiske-Carter in this case... but that does not mean that you are not going to be asked to consider whether or not Fiske-Carter is the one at fault, and I want you to keep in mind what I think the proof is going to indicate to you... What was the involvement of Fiske-Carter, did they live up to their obligation to meet these OSHA regulations or not. . .
The case was submitted to the jury on interrogatories. All of the interrogatories were read to the jury but they were initially asked to decide only three. The three interrogatories asked the jury to determine whether appellee Charles Sherrell, appellant Construction Advisors and appellant Weaver-Bailey were negligent. After a short deliberation the jury returned to ask the court if they were to give a yes or no answer or a percentage answer. Then one juror stated:
I’d sure like to know why they didn’t sue Fiske-Carter. A lot of us would. I will just put it that way.
In response, and by agreement of all parties, the judge replied:
... Fiske-Carter is a party to this lawsuit, but the extent of responsibility of Fiske-Carter, if any, is not being submitted to you at this time. The case has been separated to be tried in two stages, and we need ... to take care of this part of the lawsuit now and then that part of it will be taken care of at that time. Now, let me re-emphasize to you, when you start trying to worry about something that you haven’t been asked to worry about and trying to figure the ramifications of things, it does not help you reach justice but more likely injustice. It has been agreed that I tell you what I did because of your apparent concern about it, but I must remind you again to remember the evidence in this case, the instructions in this case without regard to any other part of this case or any other.
Then over the objection of appellants the judge made the following additional statement to the jury:
One other clarification, Mr. Sherrell won’t be involved in the other part of the case.
Appellant Construction Advisors argues on appeal that when the jury was told that appellee Sherrell would not be involved in the subsequent trial there were two implications to the j ury: One, appellee Sherrell would have no chance for additional damages and, two, appellant Construction Ad-visors had indemnity against the verdict.
Appellant is correct in stating that our rule prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have on the ultimate liability of the parties. The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame the answers with a conscious desire to aid one side or the other. Wright v. Covey, 233 Ark. 798, 349 S.W. 2d 344 (1961). We do not decide whether the comment by the court informed the jury of the effect of their answer to the interrogatories because the appellant led the jury to think that there was a great significance to the absence of Fiske-Carter, which in turn, quite naturally gave rise to the question by the juror. Even if the comment was error, it was invited. The trial court gave a factually correct answer which was not improper under these circumstances.
We quickly dispose of the second phase of the argument because the only comments which could have left a suggestion of indemnity were those comments agreed to by all parties.
Appellant Construction Advisors, the prime contractor, next contends that it has no liability to a subcontractor’s employee when the prime contractor and the subcontractor agreed for the subcontractor to comply with all safety codes. It argues specifically that the trial court erred in not granting a directed verdict. Our general rule is that a prime contractor only has a duty to exercise ordinary care and to give warning in event there are any unusually hazardous conditions which might affect the welfare of the employees. Gordon v. Matson, 246 Ark. 533, 439 S.W. 2d 627 (1969). However, where the primary contractor is guilty of negligence which causes the injury there can be liability. Aluminum Ore Co. v. George, 208 Ark. 419, 186 S.W. 2d 656 (1945). Thus, a prime contractor may be held liable for failure to perform a duty which it has undertaken. Here, Baxter-Travenol entered into a contract with Construction Advisors by which Construction Advisors undertook to supervise the construction and see that there was compliance with all safety laws and regulations. The safety codes are for the benefit of workers like Charles Sherrell and those workers were the third-party beneficiaries of the contract. Construction Advisors was liable to any worker injured as a result of its negligent failure to perform its contract. The fact that the subcontractor also agreed to comply with the safety codes does not absolve the prime contractor of liability. The trial court did not err in denying the motion for a directed verdict.
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John I. Purtle, Justice.
Appellees brought suit in the Chancery Court of Franklin County, Arkansas, to set aside appellants’ mineral tax deed and certain leases for oil and gas which had been executed by appellants. The issues were joined and the trial court granted appellees’ motion for a summary judgment. On appeal the appellants argue the court erred because there were genuine issues of material facts to be decided by the court. We hold the chancellor was correct in granting the summary judgment.
In 1905 appellees’ predecessor in title sold the land in question but reserved all the mineral rights. The taxes on the separate mineral rights were delinquent for the 1944 assessment. Appellants’ predecessor in title acquired the mineral rights by paying the delinquent taxes. A deed was executed to appellants in 1948. The deed was duly recorded and appellants or their predecessors have paid the taxes up until the commencement of this suit in November of 1979.
The 1944 Franklin County listing of tax assessments for mineral rights were kept in the property tax book. The mineral rights in question were described at Pt. SE SE S8, T9, R26. The tax, penalty and costs amounted to $3.85 but the transfer was recited in the tax sale deed as being in the amount of $4.20. The mineral assessments were not subjoined to the land taxes. Instead, the mineral rights were listed at random in another section of the tax record book. They were listed neither in alphabetical order nor by section, township and range. There were several other discrepancies in the listings, notices and collection of the taxes relating to these mineral rights.
Appellees never paid any taxes on the mineral rights in question. They simply did nothing until 1977 when they executed a gas and oil lease to Texas Oil and Gas Corporation. However, appellants as trustees had executed an oil and gas lease in 1949 which was assigned to Arkansas Western Gas Company. The lease was renewed and the property was pooled and unitized. Drilling for natural gas was commenced and completed in 1965. This well was not physically located upon the property described in the lease in question but was in section 5 which was a part of the unit into which this property had been pooled. A second producing well was completed within the unit but not upon the land in dispute.
Through the process of interrogatories the facts were developed in this case. There is no question but that the mineral rights were improperly listed and that the original tax sale was void. It would serve no useful purpose for us to list all of the imperfections in the process of handling the taxes on the mineral rights for the year 1944. So far as the facts are concerned they are undisputed in relation to the void tax deed. The appellants’ argument is that the appellees should not be allowed to sit by and do nothing for 35 years and then come in and take over the property after oil and gas has been discovered. Although appellants allege there were genuine issues of material fact to be determined by the court, their argument is based upon the court’s interpretation of the law. The appellants feel that the appellees slept on their rights and they should have been allowed to argue the defenses of limitations and laches in order to defeat the appellees’ rights to the property in question. We think the court was able to take these arguments under consideration with the facts presented to it at the time of the summary judgment.
The issue presented here has been previously considered by this court, and we think the case of Sorkin v. Myers, 216 Ark. 908, 227 S.W. 2d 958 (1950), is controlling. The facts are almost identical in Sorkin and the present case. In Sorkin the land commissioner had issued a tax deed for mineral rights. The mineral lease was not subjoined to the surface property. The assessor kept an alphabetical list of the owners of several interests in a separate book called “Leases and Royalties.” In Sorkin we held that the mineral rights as they relate to forfeitures shall in all things be handled in the same manner as provided for real property. See also Stienbarger v. Keever, 219 Ark. 411, 242 S.W. 2d 713 (1951); Smiley v. Thomas, 220 Ark. 116, 246 S.W. 2d 419 (1952). We have held in cases too numerous to need citation that a defective tax forfeiture deed is void. Sorkin firmly held that mineral interests were severable only because the legislature had made it so. Also, it held that the mineral rights were so closely related to the realty that ownership identification and accuracy made it imperative that the mineral rights be subjoined to the land assessment. The Sorkin decision wound up with the following language:
. . . our decision rests upon the proposition that the procedure legislatively intended was not followed. Instead, there was a course of well-intentioned administrative conduct that deprived the property owners of the process provided for assessing and selling. This means that the power to sell was lacking.
We do not mean to imply that mineral interests could never be ripened into a good title if the original deed was defective. We held in the case of Claybrooke v. Barnes, 180 Ark. 678, 22 S.W. 2d 390 (1929), that the only way the statute of limitations would run against the owner of the mineral rights is for the owner of the surface rights or some other person to take actual possession of the minerals by opening mines and operating same. In the case of Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W. 2d 826 (1961), we held that the drilling on one tract of land within a lease did not amount to constructive possession of mineral rights in other tracts within the lease. In Laney it was contended that continuing production of oil from a 40-acre tract had the effect of vesting constructive possession of the mineral rights throughout the 240 acres covered by the lease. The opinion is summed up with a sentence which states:
We are unable to agree with the basic premise in appellants’ argument, that a lessee’s production of oil from one tract within a lease amounts to constructive possession of all the oil throughout the leasehold. ...
In the early case of Woolfolk v. Buckner, 67 Ark. 411, 55 S.W. 168 (1900), we dealt with a claim concerning a tax title and adverse possession, stating:
. . . There is only one way in which the owner can be dispossessed or disseised by an illegal tax sale, and that is by actual adverse possession. ... If the original owner of the legal title was in constructive possession because he had the legal title, how could the claimant under the void tax title have the constructive possession at the same time? To so hold would be to give to possession under a void tax title more legal effect than to possession under a valid legal title . . .
In the case of Eades v. Joslin, 219 Ark. 688, 244 S.W. 2d 623 (1951), we dealt with the matter of adverse possession. The defense interposed was the equitable defense of laches. There we stated:
. . . plaintiff’s title was of record; the Eades were depending on adverse possession; until their possession had ripened into title they had no title to lease or sell. We find no facts sufficient to make laches applicable as a defense in this case.
Had the appellants been given an opportunity to present additional evidence in support of their contentions the result would have been the same. Based upon precedent the tax sale was obviously void. Also, based upon precedent, the appellants had not taken actual possession of the mineral rights by exercising physical control in some manner which would bring notice to the appellees and the public in general.
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Darrell Hickman, Justice.
The question presented is whether machinery used by the appellee, Arkansas Valley Coal Services, Inc., to crush and blend coal qualifies for an exemption allowed by Arkansas’s compensating (or use) tax law. Ark. Stat. Ann. § 84-3106 (D) (2) (Repl. 1980). The statute exempts equipment or machinery directly used in manufacturing and specifies mining as a type of manufacturing. Arkansas Valley paid a use tax of $2,383.14 under protest. The trial court held that Arkansas Valley was an integral part of the coal mining industry within the meaning of the statute and therefore entitled to the exemption. We disagree.
The facts are undisputed. Arkansas Valley buys coal from mining companies, crushes and blends it, and then sells it to steel mills. Arkansas Valley argues that when they crush and blend coal they are converting a raw material into a useable and salable product, a process that would be included in the ordinary meaning of “manufacturing.” However, our cases have held that merely putting raw material into a marketable form is not manufacturing. In Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954), we held that cotton ginning was not manufacturing. In Gaddy v. Hummelstein Iron & Metal, Inc., 266 Ark. 1, 585 S.W. 2d 1 (1979), we said that a scrap metal dealer who bought scrap metal, cleaned and sorted the different kinds of metal, compressed it into cubes and sold it, was not a manufacturer. In Hummelstein we elaborated on the rule applied in Scurlock:
The controlling principle, as we see it, is simply that the cotton ginner begins and ends with the same commodity, cotton, in an unmanufactured form, just as the appellee begins and ends with scrap metal that is yet to be made into something else.
Arkansas Valley’s process does not change the essential identity of the coal. The coal is simply crushed and blended. It is a salable product when Arkansas Valléy buys it and merely crushing it into smaller pieces for use as fuel is not “manufacturing.” As the United States Supreme Court confirmed in East Texas Motor Freight Lines, Inc. v. Frozen Foods Express, 351 U.S. 49 (1955):
Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labor and manipulation. But something more is necessary, . . . There must be a transformation; a new and different article must emerge, having a distinctive name, character or use.
The admitted facts preclude any finding that Arkansas Valley is engaged in “mining” within the meaning of the Statute. BLACK’S LAW DICTIONARY (5th ed. 1981) defines “mining” as “the process or business of extracting from the earth the precious or valuable metals either in their native state or in their ores.” Arkansas Valley buys the coal, it does not mine it.
A taxpayer must clearly establish his right to an exemption. If there is any doubt as to that right, the exemption must be denied. S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W. 2d 178 (1980); Gaddy v. Hummelstein Iron & Metal, supra. Arkansas Valley has not clearly established its right to the exemption allowed by Ark. Stat. Ann. § 84-3106 (D) (2).
Reversed.
The statute then in effect, Act 487 of 1949, § 6, was amended in 1955, after Scurlock v. Henderson, to specifically include cotton ginning as a form of manufacturing. The case, nevertheless, provides guidelines helpful in determining what constitutes manufacturing. | [
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Richard B. Adkisson, Chief Justice.
After a trial by jury appellant, Dennis Ray Matthews, was convicted of rape and sentenced to 50 years in prison and to a fine of $15,000. On appeal appellant argues that the trial court erred in allowing identification testimony of appellant by the victim regarding (1) a previous photo lineup, (2) a previous physical lineup, and (3) an in-court identification. These arguments are without merit. We affirm.
On November 30, 1980, at approximately 5:00 a.m. appellant entered a Seven Eleven Food Store on West 65th Street, Little Rock. The victim was working alone as the store clerk. During the next 15 to 20 minutes appellant carried on a conversation with the victim and purchased two pieces of bubble gum. After the purchase appellant began questioning the victim about the burritos in the sandwich stand. Appellant then asked the victim about a sandwich that was not labeled so the victim walked to the sandwich counter to look at it; on her way back to the register appellant grabbed her from behind and put a steak knife to her throat. He then took her to a secluded embankment behind the Seven Eleven Food Store and raped her. During the rape the victim noticed the knife was on the ground. She picked it up and threw it. After the rape, appellant ordered her to find the knife. She located the knife but tried to kick it away. And in doing so she stumbled and fell down a hill, breaking her knee. She hobbled to a nearby apartment complex where a group of teenagers found her.
Appellant alleges that the photographic lineup was suggestive and prejudicial and, therefore, that evidence of the victim’s identification of him in the lineup should not have been admitted. Appellant claims prejudice because he was the only one wearing a jacket, because the side views of him were cut off, because his picture was slightly out of focus, and because the other suspects did not resemble appellant.
We cannot agree that the photo lineup was prejudicial. It consisted of six snapshots, all in color and all the same size. All the suspects were young white males of about the same age with hair color ranging from medium to dark brown. Side views of two other suspects besides the appellant were partially cut off. All of the suspects’ pictures appear to be slightly out of focus. However, each of the suspects’ features, including appellant’s, are clearly distinguishable. The fact that appellant was wearing a jacket while the others were in shirts does not in itself make the photo lineup suggestive. In short, we see nothing suggestive or prejudicial about this photo lineup.
Appellant argues that the physical lineup conducted after the photo lineup was also so suggestive and prejudicial that the victim’s identification of appellant at the lineup should not have been admitted into evidence. Appellant alleges prejudice because the other suspects did not resemble appellant, because appellant was the only suspect in both the physical and photo lineups, and because a defense attorney who was present at the lineup was not allowed to speak with appellant.
An examination of a photograph of the physical lineup reveals that all six suspects were young white males of about the same age, dressed alike, and had similarly colored hair of approximately the same length. Also, contrary to appellant’s argument that appellant was by far the tallest, there does not appear to be a significant difference in the heights of the six suspects. In any event appellant’s tallness was to his advantage because the victim apparently thought her assailant was somewhat shorter than appellant.
The fact that a defense attorney was at the lineup but was not allowed to speak with appellant or position him in the lineup is an insufficient reason to hold the lineup suggestive and prejudicial. The purpose of an attorney’s presence at a lineup is to ensure the fairness of the procedure. At the time of the lineup the defense attorney did not object to the fairness of this lineup. And appellant has failed to show that he was in any way prejudiced by the fact the attorney was not allowed to speak with him or position him.
The fact that the appellant was the only participant in both lineups does not make the last lineup conducted suggestive or prejudicial. Appellant was identified in the first and second lineups both of which were properly conducted. There was no prejudice.
Appellant argues that because the two lineups were suggestive and prejudicial, the victim’s in-court identification of appellant should have been suppressed. Since we have found both lineups to be without error, we cannot agree with this contention. Reliability is the linchpin in determining the admissibility of identification testimony for confrontations. Manson v. Brathwaite, 432 U.S. 98 (1977); McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978).
The evidence in this case points to the reliability of appellant’s identification. The victim testified that appellant remained in the store, which was well lighted, for 15 to 20 minutes before the rape, and did not attempt at any time to cover his face. During this time appellant carried on a conversation with her, and purchased bubble gum. It is clear from these facts that she had ample opportunity to observe him. Furthermore, she testified that she had been trained to carefully observe people in the store.
The victim was at all times certain that appellant was her assailant. She testified that she recognized him immediately in the photographic lineup, and that she recognized him “right on the spot” at the physical lineup. At trial she stated that there was no doubt in her mind that appellant was her assailant. In viewing the totality of the circumstances, it is clear that the victim’s identification of appellant was reliable.
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Steele Hays, Justice.
Appellants Ches and Gaye Williams are the owners of Cow Island, a part of Shelby County, Tennessee, but attached to Arkansas. J. W. Black Lumber Company, appellee, brought suit against appellants claiming damages of $14,531.25 for breach of contract to sell four parcels of timber on Cow Island. The complaint alleges the parties contracted in writing on April 17,1978, for the sale of 640 acres, more or less, for $30,000.00 but only 330 acres of timber were actually marked off for cutting, resulting in a shortage of 310 acres. The circuit judge found the buyer was due 640 acres as stated in the contract, but received only 355 acres. He awarded damages of $11,359.38 for the 285 acre shortage. Appellants argue five points for reversal. We find no error.
I.
Appellants first contend that their motion to dismiss the complaint pursuant to Rule 12 (h) (2) A.R.C.P. for failure to state facts upon which relief could be granted was denied because it was made on the morning of trial and, therefore, untimely. They contend that the rule permits the motion at any time. But appellants have misconstrued the trial court’s ground for denying the motion to dismiss. Although he did criticize the timing, the motion was denied because he found the suit was for breach of contract and jurisdiction was properly vested in the circuit court (see p. 78 of the record.).
II.
Appellants argue the complaint fails to state facts upon which relief can be granted at law because it is a suit to reform the contract rather than for its breach. Although the complaint alleges some facts which would support a reformation theory, it is nevertheless sufficient to support an action in breach of contract. A complaint that alleges facts to support a cause of action under more than one theory is not demurrable if a cause of action on at least one theory is stated. 17A C.J.S. Contracts § 533 (1963). This complaint states, first, that appellants agreed to sell all merchantable timber on four parcels of land containing 640 acres, more or less; secondly, that appellants supplied only 330 acres, and, finally, that the damages suffered as a result of the breach were $14,531.25. The complaint need only assert the “existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach.” 17A C.J.S. Contracts § 533 (1963). See also Caldwell v. Guardian Trust Co., 26 F. 2d 218 (8th Cir. 1928). We find no deficiency in the complaint requiring dismissal under Rule 12 (h) A.R.C.P. and conclude the trial court was correct in denying appellants’ motion.
III.
Appellants allege the court erred in allowing evidence which varied the terms of the written contract over their continuing objection. The relevant section of the contract states:
In consideration of Thirty Thousand Dollars ($30,-000.00) . . . Owners hereby sell to Company and Company hereby purchases from Owners all of the merchantable timber growing, standing and lying in four separate parcels of land comprising portions of “Cow Island,” the approximate boundaries of said parcels are shown on the aerial photograph attached hereto and incorporated herein by reference thereto, the exact boundaries of said parcels being located on the ground and established either by painted lines or lines cut by bulldozer, and shown by Company’s representative, said four parcels of land containing 640 acres, more or less. . . .
In spite of the provision that the exact boundaries were marked and seen by appellee’s representative, appellee was permitted to offer proof that the boundaries were not marked until well after the contract was signed and contained only about half of the 640 acres called for.
There are cases holding that “more or less” after the stated acreage is merely descriptive and does not entitle the buyer to recovery for any deficiency in acreage. But the rule is applicable where the discrepancy is slight or trifling. Hays v. Hays, 190 Ark. 751, 81 S.W. 2d 926 (1935); Carter v. Finch, 186 Ark. 954, 57 S.W. 2d 409 (1933); First National Bank of Belleville, Illinois v. Tate, 178 Ark. 1098, 13 S.W. 2d 587 (1929); Glover v. Bullard, 170 Ark. 58, 278 S.W. 645 (1926); Harrell v. Hill, 19 Ark. 108, 68 Am. Dec. 202 (1857). Where the stated acreage goes to the essence of the contract and is not merely a matter of description, the purchasers, in case of deficiency, are entitled to a reduction in price. Glover, supra. The appellee presented evidence of a survey of the property prepared after all the boundaries were marked. This survey revealed the total acreage of the four parcels to be 330 acres, 310 less than stated in the contract. The trial court subtracted another 25 acres to adjust for an 8% margin of error in the method of computation and fixed the deficiency at 285 acres. Where a discrepancy of this magnitude exists, representing an error of almost 50 per cent, the words “more or less” should not prevent recovery for the deficiency. We find no cases that take issue with that view.
Appellants insist any parol evidence which disputes the total acreage as being 640 acres or that the boundaries were not marked is inadmissible. We disagree. Parol evidence, though not admissible to vary contractual terms to be performed, is admissible to show what the parties to the contract intended. In Ward v. McIlroy, 172 Ark. 704 at 709, 290 S. W. 2d 46 (1927), we said that parol evidence to vary the terms of a written contract is not admissible, but is admissible to enable the court to say what the parties intended to express by the language adopted. It is a rule of construction.
Here it is uncertain whether the consideration the appellee bargained for is “640 acres, more or less” or the four parcels as marked. And while there may have been no ambiguity on the face of the contract, there was a material disparity (according to the findings of the trial court) between the actual acreage marked and the stated acreage. That being so the court properly permitted evidence to expose a latent ambiguity. University City Mo. v. Home Fire & Marine Ins. Co., 114 F. 2d 288 (8th Cir. 1940); Queen Ins. Co. of America v. Meyer Milling, 43 F. 2d 885 (8th Cir. 1930). In University City, at 295, 296, the court stated:
Ambiguities in written instruments are of two kinds. They are either patent or latent. A patent ambiguity is one arising upon the face of the instrument without reference to the described object while a latent ambiguity is one developed by extrinsic evidence, where the particular words, in themselves clear, apply equally well to two different objects. A latent ambiguity may be one in which the description of the property is clear upon the face of the instrument, but it turns out that there is more than one estate to which the description applies; or it may be one where the property is imperfectly or in some respects erroneously described, so as not to refer with precision to any particular object. If such an ambiguity develops, extrinsic evidence is admissible to show the real intent of the parties. (Citations omitted.)
The evidence appellants dispute was admissible under yet another theory. It is always permissible to show by oral testimony that the consideration recited in the contract is not the consideration actually agreed on between the parties. Newberry v. Newberry, 218 Ark. 548, 237 S.W. 2d 447 (1951); Sewell v. Harkey, 206 Ark. 24, 174 S.W. 2d 113 (1943); Hockaday v. Warmack, 121 Ark. 518, 182 S.W. 2d 263 (1916).
IV.
Appellants’ fourth argument is that the court erred in using an erroneous measure of damages. The trial court found the acreage the appellee received to be 285 acres less than stated in the contract. The contract provided for a lump sum of $30,000.00 for the timber rights on “640 acres, more or less” but did not specify a price per acre. The trial court divided the contract price by the total acreage to arrive at a price per acre of $46.87. The damages were then fixed by multiplying 285 times $46.87 to arrive at $13,359.77.
J. W. Black, an experienced timber dealer, testified that the value of the timber was approximately $50.00 per acre. There was no evidence to dispute this figure. The inference from his testimony is that if the acreage had been set at a lesser figure in the contract, his offer would have been reduced by $50.00 per acre of reduction.
Timber contracts are contracts for the sale of goods and governed by the Uniform Commercial Code. Ark. Stat. Ann. § 85-2-107 (2) (Supp. 1963). The buyer’s measure of damage where there is any non-conformity of tender is defined in Ark. Stat. Ann. § 85-2-714 (Repl. 1961). Subsection 1 of § 85-2-714 allows the damages to be “determined in any manner which is reasonable.” In light of the testimony that the timber was worth approximately $50.00 per acre, we believe the method used by the trial court in fixing damages by reducing the price of $30,000.00 by the amount of the shortage on a ratio of $46.87 per acre was not unreasonable.
Appellants rely on Eagle Properties Inc. v. West & Co. of Louisiana, 242 Ark. 184, 412 S.W. 2d 605 (1967), and Harmon v. Frye, 103 Ark. 584, 148 S.W. 2d 269 (1912), for the proposition that damages cannot be allowed where they are speculative or based on conjecture. But those facts are dissimilar; both cases involved the loss of use of commercial property and the damages claimed were found to be too speculative. No similar speculation is present here. “It is not a sufficient reason for disallowing damages claimed that a party can state their amount only proximately; it is enough if from the proximate estimates of witnesses a satisfactory conclusion can be reached.” 25 C.J.S. Damages § 26 (1966). The amount fixed by the trial court was based on evidence of specific damage and was not unfair to appellants.
V.
Finally, appellants urge that the court’s findings of fact are not supported by the record. Appellants’ abstract is insufficient to enable us to address the argument on this point. Where we are unable to evaluate the merit of the argument we affirm the trial court. See Rule 9 (e) (2), Rules of the Supreme Court.
The judgment is affirmed.
This figure was reduced to $11,359.77 for an unrelated off-set.
The commentary to Ark. Stat. Ann. § 85-2-714 provides:
2. The “non-conformity” referred to in subsection (1) includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract. In the case of such non-conformity, the buyer is permitted to recover for his loss “in any manner which is reasonable.” | [
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John S. Cherry, Jr., Special Chief Justice.
Plaintiff appeals from a jury verdict awarding her $5,000.00 compensatory damages and $1,000.00 punitive damages. She raises two issues on appeal. First, she urges reversal of the trial Court’s refusal to allow her to go to the jury on two separate theories of recovery, i.e., respondeat superior and negligent entrustment. Second, she urges reversal of the trial Court’s refusal to grant her motion for mistrial following an allegedly improper question of a witness by defense counsel. We affirm the trial Court’s decision to allow the plaintiff to proceed on only the theory of respondeat superior, but reverse on other grounds.
At the time of the accident giving rise to this lawsuit, plaintiff, operator of a passenger vehicle, was stopped in a line of traffic that had developed because of a malfunctioning traffic light. Apparently, traffic was stopped in all directions and motorists were proceeding in-turn through the intersection. When it was plaintiff’s turn to proceed, she moved forward too cautiously to suit the driver immediately behind her. Lemon Dye, who was immediately to plaintiff’s rear, was operating a tractor-trailer owned by appellee and either pushed or struck plaintiff’s vehicle from the rear with sufficient force to move it into the intersection so that Dye could effect a left turn. After striking or pushing plaintiff’s vehicle into the intersection, Dye left the scene of the accident. However, a witness to the accident followed Dye to appellee’s place of business. The witness advised G 8c R’s superintendent of that accident and the superintendent and the witness went to the accident scene.
Plaintiff, Linda Ann Elrod, sued Dye’s employer, G & R Construction Company, for personal injuries. Plaintiff’s complaint, as amended, sought recovery against G 8c R on two theories of liability and sought both compensatory and punitive damages under each theory. Plaintiff alleged that G 8c R was vicariously liable for Dye’s negligent acts and willful and wanton conduct committed during the course and scope of his employment thereby entitling plaintiff to recover both compensatory and punitive damages. Plaintiff further alleged that she was entitled to compensatory and punitive damages against G 8c R because it either negligently or willfully and wantonly entrusted Dye with a motor vehicle to operate while employed by G 8c R.
In Chambers immediately prior to trial, G 8c R admitted that at the time of the accident complained of, Dye was its employee acting within the course and scope of his employment and further that G 8c R would be liable for any compensatory and/or punitive damages which the jury found plaintiff was entitled to recover. Following this admission, G 8c R moved to dismiss those portions of plaintiff’s Amended Complaint which it sought to recover on the theory of negligent entrustment or willful and wanton entrustment. The Court granted this motion to dismiss as to plaintiff’s second theory of recovery. Plaintiff made an offer of proof outside the hearing of the jury which offer consisted of Dye’s traffic record over the last four years. The record indicated that Dye had been involved in some six motor vehicle accidents, two of which resulted in personal injury. The record also indicated that Dye had citations for failure to yield and unsafe operation of a vehicle unrelated to the accidents mentioned above. Dye’s motor vehicle record did not indicate whether his negligence was the cause of any of the accidents referred to therein.
Following argument of counsel, the trial Judge ruled that when the employer admits agency, course and scope of employment, and concedes liability for any damages which might be awarded for either the negligence or willful and wanton conduct of the employee, plaintiff could not pursue a separate claim of negligent or willful and wanton entrustment. Plaintiff recovered a jury verdict for $5,000.00 compensatory damages and $1,000.00 punitive damages.
When a defendant denies liability, no problem is encountered by allowing a plaintiff to proceed under two consistent theories of recovery such as respondeat superior and negligent entrustment. Breeding v. Massey, 378 F. 2d 171 (8th Cir. 1967); Ozan Lumber Co. v. Neeley, 214 Ark. 657, 217 S.W. 2d 341 (1949). However, when defendant admits liability under one of plaintiff’s theories of recovery such as respondeat superior, difficulties do arise and the authorities are divided on the issue whether plaintiff should be allowed to proceed on one or both theories. See Woods, Negligent Entrustment Revisited, 30 Ark. L. Rev. 288 (1976); 74 Am. Jur. 2d, Automobiles and Highway Traffic, § 643 (1980). In view of this Court’s holding in Kyser v. Porter, 261 Ark. 351, 548 S.W. 2d 128 (1977), we are inclined to follow the majority view which allows plaintiff to proceed on only one theory of recovery in cases where liability has been admitted as to one theory of recovery. In Kyser, plaintiff sought to recover from the parents of a minor who permitted their son to operate a vehicle and plaintiff based his claim upon both statutory liability of a parent pursuant to Ark. Stat. Ann. § 75-315 (Repl. 1979) and negligent entrustment. Though there was no claim for punitive damages, parents conceded liability under 75-315 and the Court prohibited plaintiff from pursuing his theory of negligent entrustment. Plaintiff’s tender of the driving record of the minor was excluded and we said:
Our cases hold that a negligent entrustor, though guilty of a separate tort, is only liable to a third party for his entrustee’s negligence, if any. (cases cited) Thus, in the case at bar, had the appellant been allowed to present any available evidence on this theory of negligent entrustment to the jury, the end result could only have been established, at best, that the [defendant] was liable, . . .
Appellant argues that Kyser does not control because in that case, the Court was not presented with a claim for punitive damages. While appellant concedes that while Kyser represents a majority view, she urges that when a claim for punitive damages is made in connection with negligent entrustment, more Courts are accepting the view that plaintiff be allowed to proceed on both theories even when liability has been admitted.
The fact that appellee in this case admitted liability for both compensatory damages that might be awarded for its employee’s negligent acts and punitive damages that might be awarded for its employee’s willful and wanton misconduct distinguishes it from all those cases cited wherein both theories of recovery were allowed to be presented to the jury.
In this case, plaintiff was given the right to pursue her claim in its entirety, i.e., claims for both compensatory and punitive damages. Further in this case, plaintiff was allowed to introduce all proof that bore directly on her entitlement to recover both compensatory and punitive damages and the only evidence the trial court rejected was the prior driving-record of G 8c R’s employee, Dye. The potential problems and possible prejudice that could be created by the introduction of a prior bad driving record in our view outweigh any possible advantages. Moreover, for plaintiff in this case to have been entitled to punitive as well as compensatory damages from G 8c R on the theory of negligent entrustment plaintiff would have had to have proved that G 8c R not only negligently entrusted the vehicle to Dye, but also that G 8c R had willfully and wantonly entrusted the accident vehicle to Dye. Even in light of Dye’s prior bad driving record, we can only surmise that in some of those instances, he may have negligently operated his motor vehicle. There is nothing in the record or in the offer of proof consisting of Dye’s prior bad driving record which would have put the employer on notice or conceivably enabled the employer to foresee that Dye would commit a willful and wanton act or possibly an intentional act.
We affirm the trial Court dismissing that portion of the Amended Complaint which sought to recover on negligent entrustment or willful and wanton entrustment adhering to the holding in Kyser and join the majority of courts that have dealt with this problem. However, we reverse the trial Court on the second issue raised by appellant.
The defense attorney, while questioning a witness who was a passenger in the plaintiff’s car during the accident, said: “I believe you settled your case for two thousand dollars.” The plaintiff moved for a mistrial. The trial Court denied the motion and, instead, admonished the jury. The remark was uncalled for and undoubtedly prejudiced the plaintiff’s case. The excuse is that the plaintiff opened the door by questioning the witness about the extent of her injuries. The door certainly was not opened enough to permit such a statement by defense counsel. It was a statement rather than a question and the defendant’s purpose was obvious — the jury was meant to infer that $2,000.00 would be enough for the plaintiff. Offers of compromise or settlement are not admissible. Ark. Stat. Ann. § 28-1001, Rule 408 (Repl. 1979); 2 Weinstein’s par. 408 [06] (1981).
The trial Court should have granted plaintiff’s motion for a mistrial. Realizing that declaration of a mistrial is a drastic step, we feel that in this case no admonition of the jury by the Court would have been sufficient to eliminate any possible prejudice which might have resulted to plaintiff by the statement referring to the offer of settlement.
Reversed and remanded.
Purtle, Dudley and Hays, JJ., dissent.
Adkisson, C.J., not participating. | [
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Frank Holt, Justice.
Appellant brought this action to recover damages based upon an asserted fraudulent representation by appellees in violation of state and federal securities acts. The Securities and Exchange Act of 1934 applies to “the offer or sale of any security.” 17 C.F.R. § 240.10b-5 (1981). 15 U.S.C. § 77 q. The Arkansas Securities Act applies to “the offer, sale or purchase of any security.” Ark. Stat. Ann. §§ 67-1235 and 67-1256 (Repl. 1980). The appellant contends that the chancellor erred in finding that these state and federal securities laws were inapplicable to the facts of this case and that as a result of that erroneous finding the court further erred in holding that the appellant failed to sustain his burden of proof in establishing fraud or damages.
The appellant filed suit against the appellees, his older brother, Harrell Ballentine, and Ballentine Produce, Inc., which is principally owned by Harrell, in September, 1979, alleging Harrell made fraudulent misrepresentations prior to 1970 and continued them through 1974 concerning an oral employment agreement whereby appellant was to receive 49% of the stock in a proposed “spin-off” corporation of Ballentine Produce for appellant’s past and future services. The spin-off corporation would be established to handle the transportation aspects of Ballentine Produce. Based upon the offer to sell or issue stock in exchange for services rendered or to be rendered, appellant alleges he suffered substantial damages. Further, the corporation also was liable for the alleged fraudulent and misleading offer to transfer the stock, all of which was in violation of federal and state securities laws. He sought damages in excess of $200,000 and in the alternative specific performance of the oral agreement to issue stock to him in exchange for his past and future services.
The appellant had worked in the trucking operation of Ballentine Produce since 1954. In 1970 he was supervisor of transportation operations and received a salary of $12,000 per year. In May or June of 1970, he left his employment following a dispute with Harrell. A few days later, at the request of another brother, Ralph, a meeting was arranged at a local bank where Ralph was an official to discuss the differences between the two brothers. Attending the meeting were the three brothers, an attorney friend of the family and a long time accountant for the appellee produce company. The appellant testified that he had a salary offer of $30,000 annually plus expenses from another organization. At the meeting Harrell agreed to meet his terms for an increase in salary to $15,000 annually and there would be a spin-off of the corporation with John receiving 49% of the new corporation. It would be formed within a reasonable time. This understanding had previously been discussed and agreed upon. He had not mentioned the subject to appellee Harrell nor made any demands on him since he left his employment in 1974 until he filed this lawsuit in 1979.
The attorney testified that he understood the subject of the meeting was John’s reemployment, an increase in salary, and ratifying a previous agreement between them about appellant’s participation in the division of some company stock. However, he could not recall the specifics of the agreement. He recalled it was to be performed within a reasonable time.
Ralph testified that he called the meeting to resolve the differences between his two brothers, i.e., John’s reemployment and to draw up the necessary documents and legal papers about John owning a part of the business. The subject of a spin-off was discussed and Harrell instructed the accountant to accomplish the necessary paper work. The accountant never did comply. He further testified that when John severed his employment again in 1974 that Harrell urged him to persuade John to return to work and, should he sell his business within a few years, he would give John three or four hundred thousand dollars. Ralph acknowledged that he and Harrell had been at odds since their father’s death in January, 1976, and Harrell had harassed, humiliated and embarrassed him at great lengths. On one occasion when he was out of town, Harrell had resigned from the board of Ralph’s bank and become a board member of a rival bank which resulted in considerable publicity in the local paper.
The accountant for the appellee corporation testified that he had served in that capacity since 1954 until his retirement in 1976. He had incorporated the produce business. He had no definite recollection of the meeting since it had occurred approximately ten years ago. He had discussed the feasibility of a spin-off for tax purposes with Harrell, and it was decided that it was too expensive and, therefore, never materialized.
Harrell testified that he had incorporated his business in 1954. John had worked for him since then and would walk off the job about four times a year. He would continue paying John and Ralph would relay to appellant that if he wanted his job he could come back to work. He recalled the May or June 1970 meeting at the local bank where he was a vice president and on the board. Ralph initiated the meeting in order to get John back to work. Ralph said he would have to keep him up if he, Harrell, didn’t. The meeting resulted. At the meeting he agreed to raise John’s salary from $12,000 to $ 15,000 a year plus a new car, expenses and a country club membership. John drew this salary plus the extras until he quit in 1974. He and John drew the same salary including the same Christmas bonus. He denied that he ever promised appellant any percentage of the business or made any statement that he would share with him any proceeds should he sell it. The first he even knew about the alleged promise or representation to give him 49% of the new corporation in a spin-off arrangement was when appellant filed this action about five years after he had voluntarily left his employment. He had considered a spin-off for tax purposes but determined it was too expensive and, therefore, not feasible. At appellant’s request he permitted him to purchase trucks and lease them to the corporation. Appellant voluntarily left his job threatening to “break you” when a dispute arose concerning dispatching of the leased trucks. Before bringing this law suit, the appellant had been unsuccessful in two business ventures. He had assisted John since he was 14 years old, including high school and college. He is spoiled and when Ralph would call about putting him back to work, he would always do so. Two other brothers had worked for him and each, with his assistance, has a successful business in other states.
The findings of the chancellor as to a fact question will not be disturbed on appellate review unless clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given the trial court to judge the credibility of the witnesses. Rule 52, ARCP, Ark. Stat. Ann. Vol. BA (Repl. 1979). Ratliff v. Thompson, 267 Ark. 349, 590 S.W. 2d 291 (1979). Here, when we give due regard to the chancellor’s superior position to observe the witnesses and resolve the conflict in their testimony, we cannot say that his findings are clearly erroneous.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellee Leon Simpson brought suit against appellant Melody Roberts for damages incurred in an automobile accident. The material evidence is appellee indisputably suffered $1,441.00 in property damage and $6,659.22 in medical expense. These damages total $8,100.22. In addition appellee testified that during a period of disability totalling thirteen and one-half months following the accident, he suffered $24,439.00 in loss of earnings. Appellee’s doctor corroborated the amount of time lost from work. The $8,100.22 in undisputed damages plus the $24,439.00 which appellee claims for loss of earnings amounts to $32,539.22. The trial judge gave an instruction on comparative negligence and the jury returned with a verdict of $7,500.00. Appellee filed a motion for new trial which the court granted upon the grounds set forth in Rule 59 (a) (5) and 59 (a) (6), A. R. Civ. P., Ark. Stat. Ann., Vol. 3A (Repl. 1979), which are, "error in the assessment of the amount of recovery” and “the verdict... is contrary to the... evidence . . .” This appeal is from the granting of the new trial. We affirm.
In Worth James Construction Co. v. Jean Herring, 242 Ark. 156, 412 S.W. 2d 838 (1967), we said that a new trial is proper “where the injury is susceptible of definite pecuniary measurement such as in loss of earnings and medical expense, and where the amount of the verdict may be based on comparative negligence.” In the case before us $8,100.22 of the damages were not disputed and were exact. The $24,439.00, which appellee testified was his loss of earnings is disputed as a matter of law because a party’s testimony is not treated as undisputed. Raiborn v. Raiborn, 254 Ark. 711, 495 S.W. 2d 858 (1973). Still, this loss of earnings testimony concerns damages which are susceptible of pecuniary measurement as distinguished from those not easily measurable, such as pain, suffering or mental anguish. See Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877 (1967).
The trial judge held that the $7,500.00 verdict was contrary to evidence of damage which was susceptible of pecuniary measurement and that ruling was not an abuse of discretion. The trial judge is vested with great discretion in ruling on a motion for a new trial and will not be reversed unless there is a manifest abuse of that discretion. Garner v. Finch, 272 Ark. 151, 612 S.W. 2d 304 (1981). In addition, a showing of abuse of discretion is even more difficult when a new trial has been granted because the beneficiary of the verdict which was set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Security Insurance v. Owen, 255 Ark. 526, 501 S.W. 2d 229 (1973).
The trial judge did not abuse his considerable discretion.
Affirmed. | [
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Frank Holt, Justice.
The appellee applied to the Director of the Arkansas Alcoholic Beverage Control Board (ABC) for a private club permit which permits on premises consumption of alcoholic beverages as provided in Ark. Stat. Ann. § 48-1410 (Repl. 1977). The application was denied. The appellant Board affirmed the decision of the Director. Appellee sought a review of the Board’s decision pursuant to the Administrative Procedures Act, Ark. Stat. Ann. § 5-701 et seq. (Supp. 1981). The trial court reversed the Board’s decision, stating ‘‘[t]he question to be decided by the Board is whether the public convenience and advantage would not be hampered by the granting of the permit.” The court also found that the Board did not make “its decision based upon public convenience or advantage and the decision is not supported by substantial evidence of record,” relying upon Snyder v. ABC, 1 Ark. App. 92, 613 S.W. 2d 126 (1981). Hence this appeal. For reversal the Board contends that its decision was supported by substantial evidence, was not arbitrary or capricious nor was it an abuse of the power granted to it and the purpose of the club does not qualify it as a private club within the meaning of the statute. We agree with the appellant and reinstate the Board’s decision denying the appellee a permit.
The burden is on the applicant to show that he is “qualified” to hold the permit and issuance of the permit is “in the public interest” whereupon the Board “may” issue the permit. § 48-1410 (b) (1). See Gray’s Butane v. Ark. Liq. Pet. Gas Bd., 250 Ark. 69, 463 S.W. 2d 639 (1971).
We feel that the trial court’s reliance on Snyder is misplaced. In Snyder, the application was for a retail liquor license in a wet county permitting the sale of alcoholic beverages for off-premises consumption based on public “convenience and advantage.” Ark. Stat. Ann. § 48-301 (Repl. 1977). The applicant already possessed a retail beer license. Here, we have an application for a private club permit in a dry county which would allow on-premises dispensing of mixed drinks as being “in the public interest.” § 48-1410 (b) (1). In Snyder the applicant was found to be qualified by the Board. Here, the applicant was found not to be qualified. As indicated, there a different statute was under consideration than here.
Here, at the conclusion of the hearing, the Board made the following findings, inter alia, and denied the permit:
3. That the proposed club would be next door to a roller skating rink that is patronized chiefly by young children and the club would be a detrimental influence on large numbers of children in the area.
4. The proposed club is not organized for a charitable or non profit purpose as outlined by Arkansas Statutes Annotated § 48-1402 (j) and would have no other purpose other than the consumption of alcoholic beverages . . .
When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, or was there arbitrary and capricious action, or was it characterized by abuse of discretion. Citizens Bank v. Ark. State Banking Board, 271 Ark. 703, 610 S.W. 2d 257 (1981); Ark. Real Estate Comm’n v. Harrison, 266 Ark. 339, 585 S.W. 2d 34 (1979); Arkadelphia Fed’l S&L v. Mid-South S&L, 265 Ark. 860, 581 S.W. 2d 345 (1979); and Administrative Procedures Act, Ark. Stat. Ann. § 5-713 (h) (Supp. 1981).
As we stated in Terrell Gordon v. Gordon L. Cummings et al, 262 Ark. 737, 561 S.W. 2d 285 (1978):
It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues; and this may be especially true where such issues may be wrought up in a contest between opposing forces in a highly charged atmosphere. This recognition has been asserted, as perhaps, the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.
Here, a recreational facility, a skating rink, is adjacent to appellee’s restaurant which he seeks to convert, at least in part, into the proposed private club. According to the owner of the roller rink, it is patronized by a large number of children. On Friday and Saturday nights the roller rink attendance ranges from two to four hundred. Private parties for nursery school, kindergarten, and a boy’s club are held at the rink. Attendance ranges from fifteen hundred to two thousand children per week from the first of the year until May. Although most of the children are picked up at the premises by their parents, many of them walk home from the skating rink. “[T]here is still kids on the street, on the road crossing the front of [appellee’s] establishment and it is a danger to them”. “[P]eople leaving that club, who has had two or three drinks, would endanger the lives of these kids.” We hold the Board’s finding No. 3 was neither arbitrary, capricious or characterized by an abuse of discretion and is supported by substantial evidence.
With respect to the appellee being a qualified applicant for a permit, he testified that it would be operated on a nonprofit basis and the purpose of the club was:
Well, over the period of 14 years I have been in the restaurant business, I’ve had many many hundreds of people at my restaurant that I might say complained because they didn’t have the privilege... of having beer with their food, and so after a period of time I began to give it some consideration. I have tried to explore any way possible that I could serve drinks with my food. There was no way in a dry county. I eventually came up with the idea of a private club . . . Well you might say social gathering for people to come to, to enjoy food with a drink ...
A witness testifying in support of appellee’s application stated that there was only one private club in the dry county where one could “buy mixed drinks” and that many people could not afford a membership. However, the cost would be affordable in appellee’s proposed private club. The private club charter, which appellee purchased from another source, recites the words of the statute (§ 48-1402 [j]) as to the required purpose. However, if we should hold that the mere compliance with the statute for the existence of the charter was sufficient to entitle the applicant to a mixed drink permit, then the Board has no discretionary powers and, therefore there is no need for the Board. We hold that the Board has not abused its discretion and its finding No. 4 is supported by substantial evidence.
Reversed and remanded with directions to reinstate the decision of the Board.
Reversed and remanded. | [
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Darrell Hickman, Justice.
Billy Joe Edgemon was convicted of first degree murder of Jimmy McCormick and sentenced to life imprisonment and a $10,000.00 fine.
His chief argument is that the court erroneously admitted evidence that Edgemon was involved in a stolen car ring. The State argued that the evidence was necessary to show that Edgemon had a motive to kill McCormick. We find that the trial court was correct in admitting the evidence because the State clearly demonstrated that evidence to be an inseparable part of the case, and probative of Edgemon’s motive to kill McCormick.
The State’s case was circumstantial, there being no eyewitness to the killing and no admission by Edgemon. Edgemon lived alone outside Altus in Franklin County on a farm where he raised hogs. During the summer and fall of 1979 Jimmy McCormick stayed with Edgemon and helped him on the farm. At that time Edgemon was in the process of divorcing his second wife and had no relatives living with him on a regular basis.
On the evening of the 14th of January, 1980, Edgemon and McCormick drove to nearby Coal Hill in a yellow 1979 International Scout to see two women: Suzie Johnson, who was McCormick’s girl friend, and a woman named Rosetta Wilson. All four returned to Edgemon’s place, stayed a few hours, and then McCormick and the two women left. McCormick dropped the women off at home. Several hours later he returned to Suzie Johnson’s house and said he had wrecked the Scout. He spent the night. The focus of the case is on what happened the next day, the 15th of January.
Suzie Johnson testified that Edgemon came by her house three times. The first time she did not answer the door. When Edgemon returned later, she gave him the keys to the Scout and said McCormick had wrecked it. McCormick did not come to the door. Edgemon left again and returned about six or seven p.m. Johnson said McCormick told Edgemon that he had hidden the tags to the Scout in the woods. Edgemon and McCormick left together and McCormick was not seen alive again by any witness.
Robert Dale Pyron, an acquaintance of Edgemon, testified he was with Edgemon on the 15th. Pyron said he had seen a Scout like Edgemon’s being towed by a wrecker that morning. He found Edgemon and they went to the wrecker yard. They saw that the Scout was Edgemon’s, but they did not retrieve it. Pyron said Edgemon expressed concern about whether his keys were in the Scout and whether the tags were still on it. They went to talk to Don Holloway, who said they had better get the keys and the tags. Edgemon and Pyron went to Suzie Johnson’s where Edgemon got the keys. While en route to Edgemon’s place Edgemon told Pyron to throw the key to the Scout out the window, which he did. According to Pyron Edgemon made several statements about McCormick, one of which was that he thought Suzie Johnson was hiding McCormick. He also said that “. . . it would be one less burden on the world if Jimmy weren’t around.” At another time he said, “ ... if Jimmy came back over to his house he’d kill him.” Pyron said that Edgemon told him to deny any knowledge if he was questioned by the police about the Scout.
McCormick’s body was found on the 23rd of January, in a culvert on a county road. He had been killed with a shotgun blast and had been dead seven or eight days. Across the road the officers found a piece of carpet and a bloody mattress which contained pellets from a shotgun. The mattress was covered with a design of bicentennial emblems. A calendar wristwatch on McCormick was stopped between the 15th and 16th of January.
The police questioned Edgemon that day about the killing. He said McCormick had left his home on the 15th and that he had not seen him since. He denied any other knowledge and was released. The following day Edgemon drove a 1979 Cougar XR-7, which had been in his possession, into a mining pit that was filled with water.
On the 25th of January, the police searched Edgemon’s home. They found what appeared to be blood stains on a piece of carpet, coffee table, and another piece of furniture. These items were all located in front of the fireplace. Two shotguns were seized, one of which was a twelve gauge Marlin loaded with Magnum western shells, number four shot. A North Carolina license plate was also seized.
The State recovered the Cougar and proved that it and the Scout were stolen. The license on the Scout was registered to Dorothy Reynolds, Edgemon’s second wife, but the tag belonged on a 1980 Lincoln Continental. The North Carolina tags found at Edgemon’s house belonged on the Cougar. A deputy sheriff testified that Edgemon had told him the Scout was his. There was testimony that the Cougar had been seen regularly parked at Edgemon’s.
Two witnesses testified that the mattress found near McCormick’s body was just like a mattress or mattresses that had been at Edgemon’s. One witness, Charles Montgomery, who had stayed at Edgemon’s for a month with McCormick, said he and McCormick had each slept on such a mattress in front of the fireplace.
Edgemon told the police that the blood on the carpet piece and furniture was from a cut on his foot. An expert testified, however, that the blood on those articles was type A positive. Edgemon had type B positive blood. Another expert testified that the shot and wadding taken from McCormick’s body was consistent with that contained in the shotgun shells found in one of the shotguns seized at Edgemon’s.
The testimony objected to on appeal which implicated Edgemon in several car thefts came from Charles Montgomery and a North Carolina police officer. Montgomery was serving a prison sentence for theft when he testified. He testified that he stayed at Edgemon’s about a month in the summer of 1979. He said that he, McCormick, Edgemon and Edgemon’s son Mark, and Don Holloway planned to set up a car theft ring. He, McCormick, and Mark, working out of Edgemon’s farm, would steal the vehicles and Don Holloway would provide the titles.
He said he first met Edgemon when he sold him a stolen 1979 Scout for $400.00; it was worth $8,900.00. Next he sold him a 1979 Chevrolet Caprice stolen in Louisiana for $400.00; it was worth $8,000.00. He stole a 1979 LTD station wagon worth $7,500.00, and said he gave it to Edgemon. Montgomery said he stole a 1979 Chevrolet pick-up truck in Kansas and used a title Edgemon had for a 1979 Chevrolet truck; he took the truck to North Carolina where he unwittingly sold it to a police “sting” operation. While there, he stole the 1979 Cougar XR-7 and drove it back to Arkansas. He said he gave the Cougar to Mark Edgemon to repay a debt of $135.00. He testified that Edgemon knew all these vehicles were stolen and it was their intention to set up a ring.
The North Carolina policeman testified that he bought the 1979 truck from Montgomery in an undercover “sting” operation and the title was in Mark Edgemon’s name.
Edgemon denied that he killed McCormick or actually knew that any of the vehicles were stolen. He admitted driving the Cougar into the mining pit but he said he did so because his son had driven the car and he did not want him implicated. He would never concede that he actually owned the Scout, but said he had merely loaned Montgomery $400.00 “on it.” He admitted driving it and acknowledged that the license on it belonged to one of his former wives. He said this same former wife drove off with the LTD because her car had broken down. He said someone stole the title that was found in the truck sold in the “sting” operation. According to Edgemon, Montgomery told him that he “stole” the Cougar from his own wife, and thus Edgemon did not believe it was actually stolen.
He admitted telling Pyron to throw away the key to the Scout, and said he did so only because he no longer needed it. He did not recall telling the deputy sheriff the Scout was his, or McCormick telling him he had hidden the tags to the Scout. He said McCormick brought the tags to the Scout home with him from Suzie Johnson’s and that they were taken by his former wife. He said he did not know how the North Carolina tags from the Cougar got into his house.
The State’s theory of the case was that Edgemon, deeply involved in these car thefts, became upset with McCormick when he wrecked the Scout because it had tags on it which could be traced to him and the key ring in the Scout contained his personal keys; that he killed McCormick to prevent discovery of his complicity in these crimes.
The defense’s objection to the evidence of the car theft scheme is based on Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which reads:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Of course that is the general rule. Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979); Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Rut the rule itself says that such acts may be admissible for other purposes, and specifically mentions proving motive as one such purpose. 2 WEINSTEIN’S EVIDENCE, par. 404 [14].
In Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980), we found that an accomplice’s testimony that implicated the defendant in other car thefts was not prejudicial error because it went to intent and corroborated the accomplice’s statement. In Dillon v. United States, 391 F. 2d 433 (10th Cir.1968) evidence that the defendant was a part of an abortion ring was admissible to show motivation to commit bribery, the charge against the defendant. In United States v. Haldeman, 559 F. 2d 31 (D.C. Cir. 1979), evidence of burglary of a psychiatrist’s office was admissible to show a motivation for the “Watergate cover-up.”
The State made a strong case that Edgemon and his family were inextricably involved with the stolen cars: Edgemon did not seek to recover the Scout after it was wrecked or notify anyone it was his; there is evidence he tried to conceal any link that existed between him and the Scout and the Cougar; he made several incriminating statements, one of which suggested that McCormick’s death would be no great loss. The evidence of the stolen vehicles, and his involvement with them, was relevant to whether he had a reason to kill McCormick.
Edgemon’s other arguments only merit mention. The day before the trial actually began an attempt was made to assassinate President Reagan. The defense made a motion the next day for a mistrial or a continuance because of the inflammatory nature of the incident and its effect on the jury. The appellant cites no direct authority for his position but argues that a defendant cannot get a fair trial in such an atmosphere. There was no evidence offered to support the motions, nor was the jury voir dired. There is no precedent that court proceedings must cease because of a tragic incident involving a national figure. We will not presume that juries will fail in their sworn duty. Prejudice will not be presumed. Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). We cannot say the judge’s decision to deny these motions was an abuse of discretion. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979); Mays v. State, 264 Ark. 353, 571 S.W. 2d 429 (1978).
The appellant had a school superintendent, who was a frequent hunter, conduct a test by firing a shotgun at a small mattress. When the judge denied the admissibility of the evidence, Edgemon proffered the testimony of this witness to show that a shotgun fired at close range, would send the shot totally through the mattress. There was no evidence that any of the shot went completely through the mattress found near McCormick’s body. Naturally, the results would have been different in a test where a shotgun was merely fired at a mattress and one where the shot went through a body on a mattress. Also, the gun used in the test was not the same as the one the State claimed did the deed, nor was the distance verified to be the same. The admissibility of such evidence is a discretionary matter and we cannot say the court abused its discretion. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980); Houston v. State, 165 Ark. 294, 264 S.W. 869 (1924).
The argument that the evidence against the appellant is insufficient is essentially answered in our recitation of the facts. We have examined the transcript for other errors as we are required to do, and, finding none that would require reversal, affirm the judgment.
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Carleton Harris, Chief Justice.
Richard Monroe was convicted of robbery and his punishment fixed at twenty-one years confinement in the Arkansas Department of Correction. From the judgment so entered comes this appeal. For reversal, only one point is relied upon, viz., “The lower court erred in admitting State’s Exhibit No. 1, the so-called ‘Standard Police Rights Form’.”
The alleged error is based on the testimony of Detective Larry Starks who testified that he was present when Detective Bill Johnson advised Sims of his con stitutional rights. The "rights from” is in accord with the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, and Starks stated that after Johnson read the instrument to Sims, the form was handed to appellant who appeared to be looking over it, then stated that he understood it, and signed. Starks witnessed the signing. According to subsequent evidence, Detective Bobby Thomas was then given a statement by Sims which implicated appellant in the robbery. Detective Johnson was not present at the trial because of a death in the family.
Appellant argues that the testimony of Starks was hearsay evidence and inadmissible; that the case should have been passed until such time as Detective Johnson could be present. We do not agree that this was hearsay evidence. Starks was not testifying to something that somebody told him, nor, for that matter, what Johnson said during the advisory procedure; rather he was testifying to what he observed, i.e., what Johnson and Sims did. Of course, the evidence was not sought to be admitted as proving the truth of the statements, but merely to establish that the statements were in fact made. See Green v. State, 223 Ark. 761, 270 S.W. 2d 895, and cases cited therein. The evidence was admissible.
Affirmed.
Date 1-25-72
Time 6:30 P.M.
I, Monroe Sims, date of birth 7-23-48, now live at 2401 Dennison. I have been advised that I am a suspect in an armed robbery, that I have the right to use the telephone, that I have the right to remain silent, that I have the right to talk with an attorney, either retained by me or appointed by the court, before giving a statement, and to have my attorney present when answering any questions. I have also been advised if I waive these rights I have the right to stop the interrogation at any time. Also, that any statement I give will be used in a court of law against me. I have read the above statement of my rights and I understand them. No promises or threats have been made to induce me into making a statement.
Signed /s/ Richard Sims
Witness /%/ Det. Bill Johnson
Witness /s/ Det. L.W. Starks | [
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Frank Holt, Justice.
This appeal concerns a declaratory judgment which essentially arose out of a vehicular collision involving a dump truck owned by appellee Robinson. A motorcycle driver was killed in the collision resulting in a wrongful death action against Robinson and his employee truck driver. Appellant was the insurer of certain vehicles owned by Robinson. Appellant denied coverage of the truck involved in the fatal collision. Because of the coverage dispute, appellant petitioned the court to declare the vehicle involved was not insured by appellant. The trial judge found that the truck was insured by virtue of an oral contract between appellant’s general agent and Robinson as contended by Robinson in his response and, also, by appellee intervenor Beck, administratrix of the estate of the deceased motorcycle driver.
Appellant first contends for reversal that the court erred in considering prior oral conversations between appellant’s agent and Robinson for the reason that the same were barred by the parol evidence rule. Appellee cites and relies upon New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W. 2d 772 (1927), where we held that parol evidence is admissible to establish a contract of insurance. In the case at bar, suffice it to say that this contention is without merit inasmuch as the testimony concerning these conversations was introduced without objection and “this court has said many times, in effect, that such evidence cannot be challenged for the first time on appeal.” Bourque v. Edwards, 232 Ark. 665, 339 S.W. 2d 436 (1960). Therefore, we observe that the validity of an oral contract of insurance is not before us.
Neither can we agree with the appellant’s contention that there was insufficient evidence to uphold the trial judge’s decision. On appeal we apply the substantial evidence rule in testing the sufficiency of the evidence to support a finding. In so doing, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. We do not disturb a finding of fact merely because the testimony is in conflict. “It must appear to us that ‘there is no reasonable probability that the incident occurred as found by the [jury] trial court sitting as a jury.’ ” Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972).
In the case at bar, certain testimony appears uncontradicted. Since 1969, appellant had other vehicles owned by Robinson insured under a fleet policy. Appellant’s general agent admittedly had authority to add to or delete vehicles from this policy if instructed by Robinson. Before the fatal collision in 1971, a minor claim was filed with appellant concerning the vehicle in question. Robinson was notified the claim was denied because the truck wasn’t included in the fleet schedule. Subsequendy, Robinson conversed with appellant’s agent regarding adjusting the fleet coverage. It was admitted by appellant’s agent that he had all the information.he needed to include coverage or the addition of the truck to the fleet policy other than Robinson’s permission. Appellant cancelled or refused to renew Robinson’s fleet policy a few months following the accident, listing the reason for cancellation as several "losses.” Specifically included in that category was the accident for which it now disclaims coverage.
Other testimony is conflicting. Robinson testified that he told the agent during their conversation he wanted the truck "added to my policy.” The agent replied he would “take care of it.” Robinson was under the impression that this truck was covered from that time forward including the date of the fatal accident. However, according to the general agent, Robinson absolutely made no mention of adding the truck to the existing fleet schedule or at no time told him "to insure it.” It appears the primary factual dispute is whether Robinson, in his conversation with appellant’s agent, requested that his truck be added to his fleet policy.
As previously indicated, any conflicting versions of the facts were matters for the factfinder to reconcile. Upon a review of the evidence in the light most favorable to the appellee, we find substantial evidence that all the essential elements necessary to constitute an oral contract of insurance existed. New Hampshire Fire Ins. Co. v. Walker, supra. Certainly in the case at bar, we cannot say “there is no reasonable probability that the incident [agreement] occurred.” Fields v. Sugar, supra.
Affirmed. | [
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Conley Byrd, Justice.
Appellee Mary Willodean Wampler brought this action against appellant American Foundation Life Insurance Company to recover as a beneficiary upon a life insurance policy on her son Jimmy Wayne Wampler. The Company defended upon the ground that James E. Wampler as the “premium payor” had changed the beneficiary to eliminate appellee as a beneficiary. The Company, having paid the proceeds of the policy to cross-appellant James E. Wampler, brought him into the controversy upon a third party complaint to recover any proceeds that may have been wrongfully paid to him under the terms of the policy. The trial court awarded judgment in favor of appellee and against the Company for one half the proceeds of the policy and awarded judgment in favor of the Company and against Mr. Wampler for one half of the proceeds paid to him. The Company has appealed and Mr. Wampler has cross-appealed.
To sustain the action of the trial court, Mrs. Wampler relies upon two propositions: — i.e. (1) Mr. Wampler did not have the right under the terms of the policy to change the beneficiaries, and (2) that the change of beneficiary having been made on a duplicate policy became ineffective when the original policy was found. We find both contentions to be without merit.
The record shows that in 1958, Mr. Wampler took out a policy of life insurance upon his minor son Jimmy Wayne Wampler with an agent of Mississippi Valley Life Insurance Company, a predecessor of appellant company. Mrs. Wampler testified that because of a snow storm the agent stayed at their house until 5:00 a.m. February 2, 1958. The application for the $10,000 policy with double indemnity upon the life of Jimmy Wayne Wampler and designating both Mr. and Mrs. Wampler as beneficiaries, shows Jimmy Wayne Wampler to be a minor, a student without a business address and without any other occupations. It also provided:
Notwithstanding the provisions of the application, Mrs. Wampler readily admits that Mr. Wampler took out the policy and made all of the premium payments with the first premium being paid from a joint account. Subsequent to the issuance of the policy Mr. and Mrs. Wampler had some domestic difficulties. On July 31, 1961, while Jimmy Wayne Wampler was still a minor, Mr. Wampler executed an “Affidavit of Loss of Policy”, and executed an application for a change of beneficiary. In accordance with Mr. Wampler’s request, the Company changed the designation of beneficiaries to remove Mrs. Wampler’s name. Mr. and Mrs. Wampler were divorced on August .10, 1962, and entered into a property settlement which in so far as here pertinent provided:
“Wife does hereby release all right, title, interest, equity, dower, homestead or other interests * * * to all the property of the husband, real, personal and mixed, except that specifically given to her on pages 1 to 4, hereof (certain cash, real estate, dryer stock and personal belonging, but not including insurance.) In that connection wife agrees to execute such further documents as may be necessary for the purpose of transferring or releasing her interest in all other property, including, without limiting the generality thereof, certificates of indebetedness, certificates of equity, farming machinery * * * life insurance policies or other assets.”
Jimmy Wayne Wampler after the divorce lived with and farmed with Mr. Wampler until his untimely death on November 7, 1970. The Company, pursuant to Mr. Wampler’s beneficiary change paid the policy proceeds to him before this action was commenced.
The policy with reference to a change of beneficiary provides:
“CONTROL. It is hereby understood and agreed that this contract is made with the premium payor, designated in the application for this policy, and that all transactions affecting this policy prior to the Insured’s attaining legal age shall be between the Company and said premium payor, or in case of the prior death of said premium payor, then between the Company and a parent or a legally appointed guardian of the Insured. It is also understood and agreed that after the Insured attains legal age the Company shall deal directly with the Insured as though this contract .had been with the Insured originally, unless otherwise provided herein.” [Emphasis ours]
Mrs. Wampler to sustain the action of the trial court points to the italicized portion “designated in the application for this policy” and to the provision of the application wherein, under the signature of Jimmy Wayne Wampler, it states: “I HEREBY DECLARE that I have paid to the agent...” the sum of $105.10. Upon these premises she argues that Jimmy Wayne Wampler was the “premium payor” under the terms of the policy. In making this contention she asserts that the provisions of the policy should be construed most strongly against the Company. We disagree on both contentions.
Provisions in life insurance contracts with reference to beneficiaries or changes in beneficiaries are in the nature of a last will and testament and are not matters in which the Company has a conflicting interest with the insured. Consequently courts do not, in construing such provisions, invoke the time honored doctrine applicable to coverage issues that ambiguities are to be construed most strongly against the Company and in favor of the insured. Instead such provisions are construed in accordance with the rules applicable to the construction of wills. See Equitable Trust Co. v. Epling, 168 S.C. 494, 167 S.E. 820 (1932), and Continental Ins. Co. v. Madonia, 205 La. 828, 18 So. 2d 310 (1944). Issues involving" the construction of the beneficiary provisions of life insurance policies most often occur in cases where the Company is only a stakeholder and the real parties in interest are the contesting beneficiaries. Of course, here, Mr. Wampler because of the judgment over against him is a real party in interest.
When we view the beneficiary control clause, supra, under the rules applicable to the construction of wills it at once appears that the “premium payor’’ was intended to be an adult because it specifically provides thát in case of the death of the premium payor during the minority of the insured transactions affecting the policy shall be “...between the Company and a parent or a legally appointed guardian of the insured.” Furthermore, the clause makes it plain that the Company did not intend to deal with a person prior to the attainment of legal age. Since the application indicated that the applicant was a minor without earnings, an ambiguity exists as to whom the “premium payor” would be under those circumstances. Upon the proof in the record here, the Company properly accepted Mr. Wampler as the “premium payor” for purposes of acting on a request for a change in beneficiaries.
To support her contention that the production of the original policy eliminated the change of beneficiaries effected after the issuance of the duplicate policy, Mrs. Wampler points to the following endorsement on the duplicate policy:
“This policy of insurance is issued as a duplicate to Original policy Number 2598-5802 issued on the 1st day of February, 1958, which is represented by the Owner to be lost or destroyed, it creates no liability upon the part of the Company other than that created by the original, and shall be null and void at any time that the original is found.”
Mrs. Wampler has cited no authority to support her position on this issue and we have found none. However, we do not construe the endorsement as making beneficiary changes, made in accordance with the terms of the original policy, null and void. As was pointed out in Tibbels v. Tibbels, 232 Ark. 857, 340 S.W. 2d 590 (1960), changes in beneficiaries under some circumstances can be accomplished without production of a policy.
Reversed and dismissed.
Brown, J., not participating.
Murder charges have been filed as a result of his death. See Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973). | [
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George Rose Smith, Justice.
Marguerite Turner brought this tort action against Baptist Medical Center, a non-profit institution, alleging false imprisonment and assault and battery in that the defendant had illegally confined Mrs. Turner to its hospital from May 15 to May 31, 1978, and had mistreated her. Later on Mrs. Turner joined as defendants the Medical Center’s liability insurer and Dr. Charles S. Betts, the psychiatrist who had requested that Mrs. Turner be admitted to the Medical Center for observation and treatment. On motion for summary judgment the trial court found no genuine issue of fact to exist and entered summary judgment in favor of the Medical Center and its insurer. The court also sustained Dr. Betts’ motion to dismiss the complaint as being barred by the statute of limitations. The appeal comes to us under Rule 29 (1) (o).
We consider first the judgment in favor of Dr. Betts, on the basis of limitations. Dr. Betts was first brought into the case on May 12, 1980, by an amended complaint asserting false imprisonment, assault and battery, and “intentional infliction of mental and emotional distress.” That pleading was filed almost two years after Mrs. Turner’s asserted confinement and physical mistreatment; so it was barred by the one-year statute of limitations applicable to actions for false imprisonment and for assault and battery. Ark. Stat. Ann. § 37-201 (Repl. 1962). No facts were alleged that would make the assertion of mental and emotional distress anything more than an element of damage flowing from the imprisonment and mistreatment; so the same one-year statute would apply. More than three years after Mrs. Turner’s release from the Medical Center she filed a second amended complaint alleging for the first time negligence on Dr. Betts’ part, but by then any cause of action for negligence was barred either by the two-year statute applicable to medical malpractice, § 37-205, or by the three-year statute applicable to actions for personal injuries. § 37-206. It is also argued that Dr. Betts is estopped to plead limitations, but that argument is based on facts assertedly in the record but not abstracted by the appellant. Dr. Betts has elected not to supplement the appellant’s deficient abstract; so Rule 9 precludes us from considering this estoppel argument on its merits.
With respect to the Medical Center and its insurer, they have chosen to abstract all the affidavits supporting their motion for summary judgment. We need not detail this proof. It sets forth specific facts to show that Mrs. Turner, then age 58, was properly admitted to the Medical Center pursuant to Ark. Stat. Ann. § 59-408 (B)and (C) (Repl. 1971), on the certification of Dr. Betts; that Dr. Betts is a qualified psychiatrist who diagnosed Mrs. Turner as being psychotic, under delusions, a threat to herself and others, and in need of observation and treatment at the Medical Center; that Dr. Betts’ diagnosis is confirmed by Dr. Kolb, a disinterested expert witness; that Mrs. Turner’s nephew took the initiative in putting her in the hospital; and that the Medical Center did not subject Mrs. Turner to false imprisonment or assault and battery. Various supporting hospital records were also attached to the motion.
The proof in support of the summary j udgment made a prima facie showing that no genuine issue of fact exists. In response, Mrs. Turner filed only her own affidavit, stating in conclusory language that the defendants’ affidavits were not true, that she had not been a danger to herself, and that the hospital records were not correct. Her affidavit does not indicate that she is qualified as an expert to testify about her mental condition.
Our summary judgment procedure, ARCP Rule 56 (e), which follows the parallel federal rule, requires that proof offered to meet a properly supported motion for summary judgment “must set forth specific facts [our italics] showing that there is a genuine issue for trial.” The affidavits must set forth facts that would be admissible in evidence. Rule 56 (e). Affidavits that consist merely of general denials, without any statement of specific facts, are insufficient. Stevens v. Barnard, 512 F. 2d 876 (10th Cir., 1975); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F. 2d 1013 (5th Cir., 1967); Robin Construction Co. v. United States, 345 F. 2d 610 (3rd Cir., 1965). Indeed, that must be the rule, else every motion for summary judgment, however strongly supported by the proof, could be defeated by an affidavit merely stating: “The statements in the movant’s affidavits are not true.” In substance, that is all this appellant’s responsive affidavit amounts to. The trial judge correctly granted the motion for summary judgment.
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Frank Holt, Justice.
This appeal questions the chancellor’s division of property in a divorce action. Appellant argues that the chancellor erred in holding that a nonfunded account, which appellant owned in a corporation, had vested and was marital property subject to equal division. Ark. Stat. Ann. § 34-1214 (Supp. 1981) (Act 705 of 1979).
Appellant was employed in 1973 by a corporation which was partly owned by appellee’s father. In 1977, during the parties’ first marriage of 15 years, the company gave him an incentive contract by the terms of which appellant would own the equivalent of 5% of the book value of the corporation’s common stock at the end of each fiscal year. The stock was nontransferable. The account was distributable or payable to appellant or his estate upon his death, resignation, or termination of employment. His employer retained the option to make a distribution in a lump sum or pay 25% initially and the balance, without interest, within one year or purchase an annuity. The appellant argues his contractual right in the nonfunded account was acquired in 1977 as his sole and separate property, remained his property after his 1978 divorce and continued to be his separate property upon the parties’ remarriage in 1979 notwithstanding their 1978 property settlement agreement by which appellee relinquished her interest in the stock. In other words, appellant asserts that the stock he owned in the corporation was not marital property since it was acquired before and not during their second marriage.
Section 34-1214 (B) (5) provides:
For the purpose of this statute, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
The increase in value of property acquired prior to the marriage.
In a property settlement at the time of their first divorce, the appellee relinquished any rights she had to any “stock” in the company in exchange for the equity in their home. We have said that a property settlement survives a reconciliation unless the court can find an intention or express agreement that it shall not survive. Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251 (1977). Here, the trial court held it was the parties’ intentions to abrogate the property settlement when they remarried. He found that the property each possessed as a result of their first divorce was brought back into the second marriage and used as joint property with “intent to make it a family.” It is undisputed that upon remarriage, after nine months, the appellee took $10,000, the balance of the $13,000 equity in their home which she had received pursuant to the property settlement, and used it as a down payment on another home for themselves. The property was titled in their joint names. Both signed a note and mortgage to her mother for additional funds to purchase a new home. The appellant placed his paycheck into a joint account, and appellee wrote checks to pay their expenses. They filed a 1979 joint income tax return.
The finding of a chancellor on a fact question will not be disturbed on appellate review unless the finding is clearly erroneous (clearly against the preponderance of the evidence). ARCP. Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979). Ratliff v. Thompson, 267 Ark. 349, 590 S.W. 2d 291 (1979). Here, we cannot say the chancellor’s finding is clearly erroneous that the settlement was abrogated by the intention and actions of the parties and that the corporate account was marital property subject to equal division.
In the alternative, the appellant argues the benefits he would receive under the incentive agreement with his employer were “retirement benefits” which should not be considered marital property inasmuch as the value of the benefits or balance due on the account is speculative, citing Paulsen v. Paulsen, 269 Ark. 523, 601 S.W. 2d 873 (1980); Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979); Lowrey v. Lowrey, 260 Ark. 128, 538 S.W. 2d 36 (1976); Fenny v. Fenny, 259 Ark. 858, 537 S.W. 2d 367 (1976). These cases are inapplicable. Here, appellant terminated his employment in July, 1980, during the parties’ marriage or preceding the second divorce. At that time his employment agreement was modified whereby appellant would be paid immediately, as of August 15, 1980, 25% of his corporate fund for the preceding fiscal year, which ended September 30, 1979. According to appellant, his corporate fund on that date was worth about $82,000 ($22,000 in 1977, $40,000 in 1978). He was paid about $20,500 with the understanding that upon completion of the audit for the fiscal year 1980, he would be paid the reflected balance, without interest, within one year or by July 1981. The chancellor correctly held that his interest in the company stock was vested and fully distributable to him as of July, 1980, and, therefore, marital property subject to equal division on the date of their divorce in January, 1981. Bachman v. Bachman, 274 Ark. 23, 621 S.W. 2d 701 (1981).
Appellant next asserts that appellee is not entitled to one-half of the account before income taxes inasmuch as it would result in an unequal distribution of the property; i.e., appellant will be subject to payment of all the tax on this item of marital income, resulting in appellee’s portion being tax free. Therefore, appellant argues the income tax on this marital property should be equally divided. Stated another way, there is no equal division of this item which the chancellor specifically held to be marital property with each being entitled to a one-half share. Appellee responds that this argument was not presented to the trial court and, therefore, should not be considered on appeal. Furthermore, appellant’s argument is based upon assumptions and speculations.
Following the rendition of the decree, the appellant, by present counsel who was retained following trial, filed a timely motion for a new trial based upon the issue of the division of the corporate funds received by him as marital property alleging that an excessive award was granted to appellee inasmuch as appellant would be required to pay all of the income tax and appellee’s portion would be tax free thereby unduly enriching appellee. After argument of counsel, a special chancellor found that the requested new trial should be denied inasmuch as the “court considered all matters raised by defendant’s motion.”
A review of the chancellor’s findings reflects that all property, including the corporate fund, is marital property and subject to equal division. § 34-1214 supra. In accordance with this finding the court directed that their home should be sold and the net proceeds divided equally; that repayment of $1,400, which they borrowed from appellee’s mother to pay their joint 1979 income tax, should be shared equally and that all other personal property is marital property and, unless otherwise agreed, shall be sold with the net proceeds divided equally. Further, “the court finds that all debts, including medical, are joint debts of the marriage, and either party who paid on such indebtedness will be given credit for same.” Appellant has paid most of the outstanding family indebtedness. As to the income tax indebtedness, appellant approximates that he would receive by July, 1981, a total of $112,000 for the corporate fund following completion of the 1980 audit. He then estimates that a total of $33,409 will be due and payable in income taxes which he must pay from his one-half portion. She should be required to pay one-half, $16,704.50, of this indebtedness; otherwise, he would realize only $22,591 net ($56,000 less $33,409) while appellee would receive $56,000 net.
As indicated, the chancellor held that all property, and specifically this corporate fund, is marital property; that upon a sale of any item of property the net proceeds should be divided equally; and, also, that all debts are joint debts of the marriage with each party receiving credit for any payment thereon. In the circumstances, we feel a fair interpretation of the chancellor’s findings requires that the appellee should share equally in whatever the income tax indebtedness is on this marital property. We agree that appellant’s figures are based upon speculation and assumptions; however, if within 17 calendar days, appellee is willing to accept his figures as being sufficiently correct, her share should be reduced by $16,704.50 (one-half of $33,409). Otherwise, we must remand the cause for a determination of the amount of income tax indebtedness with each party paying one-half.
Affirmed as modified.
Hickman and Dudley, JJ., would affirm. | [
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Conley Byrd, Justice.
The trial court without a formal hearing denied appellant William H. Stallins’ petition for post conviction relief from a 20 year sentence on a guilty plea to assault with intent to rape. The trial court’s action was proper under Criminal Procedure Rule No. 1 (c). See also North Carolina v. Alford, 400 U.S. 25 (1970).
The record shows that after an original plea of not guilty to a charge of first degree rape there was some negotiation between appellant’s employed counsel and the prosecuting attorney. On January 26, 1970, the State reduced the charge to assault with intent to rape but the trial court would not accept appellant’s plea because he stated that he used no force and that the girl consented. Thereafter the State amended the information to again charge first degree rape. February 1, 1970, appellant again requested that he be permitted to plead guilty to assault with intent to rape. 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.
Affirmed. | [
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Robert H. Dudley, Justice.
Dorothy Ford filed a bastardy action naming appellant Thomas Wilkins as the putative father. On November 21, 1980, the county court filed its finding of paternity and order of support. Appellant Wilkins did not perfect his appeal within the prescribed 30-day period. After the term lapsed appellant filed a written motion asking permission of the county court to file a belated appeal to circuit court. The appointed referee did not grant the motion, but on February 5, 1981, on the oral motion of appellant, the referee vacated the finding of paternity and order of support and then, on February 26, 1981, filed an order which was practically identical to the original order. In the brief before us appellant admits the purpose of the latter action was to allow a belated appeal. The circuit court dismissed the appeal and we affirm.
The appellant received notice of the suit, appeared, defended and lost. The time for appeal has passed and appellant now seeks to directly attack the judgment of paternity. This type of attack is not allowed unless a petitioner pleads and proves grounds, otherwise judgments would never be final. Appellant has neither pleaded nor proved a ground to vacate the judgment and he has neither pleaded nor made a prima facie showing of a valid defense.
The parties have filed briefs with extensive arguments on whether a county court may, on oral motion, vacate a judgment after the term has lapsed or more than 90 days after filing of the order. We do not reach that issue because the appellant was not entitled to have the judgment vacated without pleading a ground and asserting and making a prima facie showing of a valid defense. In his brief appellant refers to the ground of unavoidable casualty but that ground for vacating a judgment is "For unavoidable casualty or misfortune preventing the party from appearing or defending.” ARCP Rule 60 (c) (7). The appellant appeared, defended and lost. He does not come within this ground.
In addition to a valid ground to vacate a judgment the moving party must prove a prima facie showing of a valid defense. In Burnett v. Burnett, 254 Ark. 507, 494 S.W. 2d 482 (1973), we stated:
. . . Our Ark. Stat. Ann. § 29-509 (1962 Repl.) [substantially the same as Rule 60 (d), ARCP] provides that a judgment shall not be vacated “until it is adjudged that there is a valid defense to the action...” The word “valid” as used in the statute means “meritorious”. Berringerv. Stevens, 145 Ark. 293, 225 SW. 14 (1920). In Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W. 2d 857 (1944) we said:
In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401, and extending to O’Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S.W. 2d 52, and Davis v. Bank of Atkins, 205 Ark. 144, 167 S.W. 2d 876, this statute has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendéred without notice.
Later holdings of the same import are Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204(1961), and Agee v. Wildman, 240 Ark. 111, 398 S.W. 2d 542 (1966).
Appellant contends that Ark. Stat. Ann. § 34-706.1 (Supp. 1981) modifies the procedure in bastardy actions and the court can modify any order at any time. It provides:
Modificiadon of judgment. — County courts may at. any time, enlarge, diminish or vacate any order or judgment awarding an allowance for child support in bastardy cases.
The statute was enacted in response to our ruling in Carter v. Clausen, 263 Ark. 344, 565 S.W. 2d 17 (1978), which held that county courts had no authority to adjust the amount of support. The statute authorizes modifications from time to time in the continuing order of support but it does not authorize a modification of a finding of paternity. Appellant also contends that the last sentence of Ark. Stat. Ann. § 34-706 (Supp. 1981) authorizes a vacation at any time. That statute refers to a vacation of an order of commitment for failure to pay support.
Affirmed.
Purtle, J., dissents. | [
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Richard B. Adkisson, Chief Justice.
An airplane, insured by appellant, Ideal Mutual Insurance Company, crashed near Dierks, Arkansas, in 1978. The pilot was killed, and the appellee, McMillian, was injured. After the pilot’s estate was closed, appellee filed a negligence suit against the estate pursuant to Ark. Stat. Ann. § 62-2601 (f) (Repl. 1971). Sheriff David Goodwin was appointed special administrator to receive service of process.
The sheriff, as special administrator, attempted to give notice of the suit to appellant by mailing a letter to the attorney for the owner of the plane and to appellant’s local issuing agent. The attorney received the letter addressed to him. However, the letter to appellant’s issuing agent was incorrectly addressed to the post office box of appellant’s adjustment bureau and its receipt was denied by both the issuing agent and the adjustment bureau.
The trial court found the notice given by the sheriff was sufficient and because the complaint was never answered, entered a default judgment against the estate of the pilot. After appellant learned of the default judgment, it filed a motion to intervene under Rule 24 (a), A. R. Civ. P., Vol. 3a (Repl. 1979) which was denied. This rule provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Appellant then filed a motion to set aside the default judgment alleging insufficient notice of the proceedings. The trial court also denied this motion.
Ark. Stat. Ann. § 62-2601 (f) (Repl. 1971), upon which appellee’s suit was based, provides:
f. Certain Tort Claims Not Affected. Notwithstanding the foregoing provisions relating to the time of filing claims against an estate, or any other provisions of this Probate Code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from Uninsured Motorist insurance coverage and which will not use, consume or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for such tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any such recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the decreased tortfeasor unless a claim is filed in the manner and within the time provided by the Probate Code for filing claims against the estate.
Under the provisions of this statute the insurance company is the only party financially interested in the outcome of the case. Although the estate is the named defendant, it is not financially liable under the statute. Therefore, because of the peculiar nature of the statute, it in effect confers an unconditional right to intervene on the insurance carrier under Rule 24 (a).
Again, due to the unique provisions of this statute, the insurance carrier, appellant, is entitled to notice of the proceedings. Due process requires that the method of giving this notice shall be reasonably calculated, under all the circumstances, to apprise the insurance company of the pendency of the action. Mullane v. Central Hanover Bank & Trust Co., 359 U.S. 306 (1950). Here, attempted notice by a letter mailed to the wrong address is not calculated to appropriately notify appellant of the suit.
Since sufficient notice of the suit was not given to the appellant, the motion to set aside the default judgment must be granted, and appellant must be allowed to intervene.
Reversed and remanded. | [
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Stan Miller, Special Justice.
James Edgar Russell sued Carolyn Ann Russell for divorce on August 29, 1980, alleging as grounds the three year separation of the parties. Since Mr. and Mrs. Russell married in 1963, they acquired both real and personal property, including a residence and stock in Matthews International Corporation, Mr. Russell’s employer. The Russells are the parents of one child who was sixteen years of age at the time of the trial. The Court granted a divorce to Mr. Russell on the basis of the three year separation and ordered a division of the marital property. Mrs. Russell was awarded possession of the residence until the minor child reached his majority or finished high school at which time the Court ordered the residence to be sold and the proceeds divided equally. In making the division, the Court valued the Matthews International Stock and awarded it to Mr. Russell. Mrs. Russell received a monetary award equal to one-half the value of the marital property after adjustments for certain in-kind distributions not at issue here. Pursuant to the decree, Mr. Russell was permitted to satisfy the monetary obligation from his share of the net proceeds of the residence when it sold. Finally, the Court continued a temporary child support award of $200.00 per month and also ordered Mr. Russell to continue paying Mrs. Russell $500.00 per month in alimony until the residence is sold.
Appellant contends each of these findings are reversible error. We affirm the decision of the Chancellor as modified herein.
I.
Appellant first contends that the trial court erred in finding that there was sufficient corroboration of the three year separation of the parties. We disagree. Mr. Russell’s corroborating witness, Harold Peterson, testified that he worked with Mr. Russell and had known him for 23 or 24 years and had known Mrs. Russell for 17 or 18 years. He testified that during the entire time he had known them, they had both lived in White County; that he had visited in Mr. Russell’s present home three or four times since the separation and that he had visited the home owned jointly by the parties shortly after the separation occurred. Mr. Peterson’s uncontradicted testimony was that Mr. and Mrs. Russell had been separated since August 29th of 1977, a period of more than three years. Corroboration is as essential to the granting of a divorce on the grounds of three year separation as it is in any other case. But, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973); Owen v. Owen, 208 Ark. 23, 184 S.W. 2d 808 (1945); Allen v. Allen, 211 Ark. 335, 200 S.W. 2d 324 (1947). Nonetheless, there must be corroboration to some substantial fact or circumstance independent of the Appellee’s testimony which would lead an impartial and reasonable mind to believe that the material testimony is true. Lewis, supra; Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). Appellant insists that the Appellee’s corroborating testimony does not meet the standard outlined in Hair v. Hair, 272 Ark. 80, 613 S.W. 2d 376 (1981). In that case, it was undisputed that the parties had continued to reside in the same household during the purported three year period of separation. The testimony of the parties in that case was in direct conflict as to when sexual relations terminated; and, according to the neighbors, there was no appearance of estrangement. In the instant case, the uncontradicted testimony of Mr. Russell and his corroborating witness is considerably more substantial than the corroborating testimony in Hair, supra, and is sufficient to corroborate the three year separation.
II.
Appellant next contends that the trial court erred in not ordering a distribution of the marital property at the time the divorce decree was entered.
During his marriage to the Appellant, Mr. Russell acquired 535 shares of stock in Matthews International Corporation, his employer. During the three year separation period, he sold 200 of those shares. The trial court awarded Mrs. Russell an amount equal to one-half of the after-tax proceeds of the 200 shares of stock which were sold and one-half the value, as determined by the Court, of the shares which were awarded to Mr. Russell. After adjustments were made for the in-kind distribution of other marital property not at issue here, Mrs. Russell’s monetary award totaled $18,310.93.
The Court provided that this amount would be paid to Mrs. Russell from the proceeds of the sale of the home which would occur when the parties’ sixteen year old son attained his majority or finished high school. The Court retained jurisdiction to make adjustments in the event the house did not sell for enough money to enable the parties to divide their property as contemplated in the decree.
Appellant points out that under the arrangement ordered by the trial court she will not receive her monetary award for some period of time. During that time, the money is beyond her control, so she has no means of investing it to prevent its value from being eroded by inflation or to realize income from it. At the same time, she points out that this arrangement permits Mr. Russell to invest the cash he realized from the sale of the 200 shares and also to realize any appreciation in the value of the stock he was awarded. She also points out the possibility that the proceeds of the sale of the residence might be inadequate to satisfy Mr. Russell’s obligation and that, in that event, she has no assurance the Appellee will have resources sufficient to make up the difference. Even though jurisdiction was retained, the Chancellor could do little to ameliorate this kind of circumstance.
The concern expressed by Appellant is consistent with the language of Ark. Stat. Ann. § 34-1214 (Cum. Supp. 1981) which clearly does not contemplate the delayed division of marital property ordered here. In relevant part, the statute provides that:
(A) At the time a divorce decree is entered:
(1) All marital property shall be distributed one-half (¥2) to each party unless the Court finds such a division to be inequitable. . . . (Emphasis Added)
We do not read this section so narrowly as to require the Chancellor in every case to mechanically divide the marital property in kind upon the granting of the Decree of Divorce. We do conclude, however, that the portion of the decree permtting the Appellee to delay payment of the Appellant’s share of the marital property until the sale of the home following the minor child’s attaining majority or graduation from high school is not consistent with the requirement of Ark. Stat. Ann. § 34-1214 that marital property be distributed at the time the decree is entered. Under these circumstances, the Chancellor should have required Mr. Russell to pay Mrs. Russell for her interest in the marital property within a reasonable time after the decree was entered. A reasonable period of time would, in this instance, be the time reasonably required for Mr. Russell to obtain a loan to satisfy the obligation. If Mr. Russell cannot satisfy the monetary award within a reasonable period of time, and certainly within 45 days from the date of this opinion, the undivided marital property will be divided in-kind and distributed to the parties. Therefore, the decree of the Chancery Court is modified as indicated and judgment entered accordingly. This is consistent with the usual practice of this Court to resolve controversies here without remand to the trial court whenever possible. Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). However, in the event the monetary award is not satisfied within the time specified the Chancellor is directed to take such further action as may be required consistent with this opinion.
Since the residence was owned by both parties as an estate by the entirety, it is not marital property which must be divided pursuant to Ark. Stat. Ann. § 34-1214. Warren v. Warren, 273 Ark. 528, 623 S.W. 2d 818 (1981). The award of possession of the home to Mrs. Russell as provided in the decree is a reasonable application of a well recognized equitable remedy and is consistent with the Appellant’s request at trial. Schaefer v. Schaefer, 235 Ark. 870, 362 S.W. 2d 444 (1962); Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S.W. 2d 576 (1975); see also, Stevens v. Stevens, 271 Ark. 248, 608 S.W. 2d 17 (1980).
III.
Appellant next contends that the trial court erred in valuing the 335 unsold shares of stock in Matthews International Corporation, Mr. Russell’s employer. Mr. Russell purchased the stock in several transactions between 1968 and 1976. In each case he executed a promissory note in favor of the corporation for the purchase price. At the same time the various notes were executed, Mr. Russell executed a stock purchase agreement which granted the corporation an option to repurchase the shares in the event of Mr. Russell’s termination of employment (other than by death or retirement) if that termination occurred before the particular promissory note was satisfied or within a three year period thereafter. The purchase price of the shares pursuant to the option was the lesser of (1) the price paid by the stockholder, or (2) the book value of the stock as determined by the company’s certified public accountants. This re-purchase right was optional with the corporation, so Mr. Russell, during the period of the restriction, could not require Matthews International to re-purchase the shares. According to Mr. Russell’s testimony, the consolidated book value of the shares at the time of the trial was substantially higher than their original purchase price, but the shares could not be sold for their book value until all of the restrictions contained in the stock purchase agreement had been satisfied. Paragraph 12 of that agreement defines precisely when the shares become free of the restrictions:
12. Three (3) years after the date of the final payment of the total amount of the Note, the Company will deliver a certificate to the Employee representing the Stock purchased pursuant to this Agreement without the legend referred to in paragraph 10 hereof (but bearing the legend referred to in the Option Agreement), all collateral which has been deposited with the Company in accordance with paragraph 5 hereof and the Note marked “Satisfied in Full”. At such time this Agreement shall be terminated and of no further force and effect.
We interpret this agreement to mean that the subject shares had a value equal to their book value if they had been delivered to Mr. Russell at the time of the trial and had a value equal to their cost if he had not yet received them.
Two Hundred of the 335 shares had been paid for and the three year period had expired, but no evidence was presented at the trial or in the Appellant’s Motion for a New Trial which contradicts Mr. Russell’s testimony that he had not received the shares at the time of the trial; nor does the Appellant allege any collusion between the Appellee and the corporation in withholding delivery of the shares. The Appellant’s motion merely contained the general allegation that the Appellant “has learned that Matthews International Corporation stock of the type Plaintiff owned was actually worth $161.80 per share.” The motion lacked supporting affidavits required by Rule 59 (c), Ark. R. Civ. P., so any specific facts which would shed light on whether or not Mr. Russell had actually received the shares are missing. We will not reverse the decision of the Chancellor on a disputed fact question unless the decision is clearly against the preponderance of the evidence. Rule 52, Ark. R. Civ. P. Without more, we cannot say that the decision of the Chancellor is clearly against the preponderance of the evidence and conclude that the net value of the shares at the time of the trial was correctly determined by the Chancellor to be $12,494.33.
V.
The Appellant insists that the trial court should not have awarded all of the Matthews International Corporation stock to the Appellee with an offsetting monetary award to the Appellant. Appellant contends that an equal division of the stock in kind or a forced sale of the stock are the only methods available to the Court to divide the stock in this case. We disagree. The language in Act 705 of 1979 [Ark. Stat. Ann. § 34-1214 (A) (3)] clearly contemplates the kind of division made by the Chancellor here:
(3) Every such final order or judgment shall designate the specific property both real and personal, to which each party is entitled;
The intent of Act 705 of 1979 was to insure that the chancellor had the discretion to make an equitable division of all of the marital property with the least possible prejudice to either party. In this instance, Mr. Russell was only able to purchase the Matthews International Corporation stock because he was an employee of the company. The stock was subject to substantial retransfer restrictions and some of the stock was still subject to indebtedness at the time of trial. The testimony indicates that ownership of this stock is important to Mr. Russell’s relationship with his employer, but the same stock would only have a monetary value to Mrs. Russell. The Chancellor’s award of the stock to Mr. Russell with an offsetting monetary award to Appellant is a reasonable exercise of discretion amply supported by the record.
VI.
Appellant claims the Chancellor should have awarded her 80% of the marital property. Such a division would require the application of the factors pertaining to the division of marital property found in Ark. Stat. Ann. § 34-1214 which reads as follows:
“DIVISION OF PROPERTY. (A) at the time a divorce decree is entered:
(1) all marital property shall be distributed one-half QA) to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker. When property is divided pursuant to the foregoing considerations the court must state in writing its basis and reasons for not dividing the marital property equally between the parties.”
Appellant bases her contention that she should receive a larger share of the marital property on her physical condition and present prospects for future employment. There was some evidence of a physical impairment suffered by Mrs. Russell. Her testimony indicated that this impairment was partially a result of an accident which occurred at McCain Mall in 1975. In settling the claim arising out of that injury, she testified in depositions that she was disabled from working as a result of the accident, but records reflect that she had actually worked and received raises during the same period she alleged she was disabled. Further, the Chancellor may have found significance in the fact that Mrs. Russell’s visits to the doctor increased substantially after this action was filed.
Appellant also urges this Court to consider her relative financial position as a basis for awarding her a larger share of the marital property, but the application of this factor and all of the other factors outlined in Ark. Stat. Ann. § 34-1214 (A) (1) contemplates an element of discretion best exercised by the Chancellor since he actually has the opportunity to hear the testimony of the witnesses. As this Court indicated in Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 63 (1965), the opportunity to observe the witnesses firsthand puts the Chancellor in a position “immeasurably superior to ours” to resolve conflicting testimony. See also, Marine Mart, Inc. v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972). The application of these factors is a factual determination; therefore, this Court will not reverse the decision of the Chancellor in making a division of marital property unless the property division is clearly against the preponderance of the evidence. Rule 52, Ark. R. Civ. P. We have reviewed the record in this case being particularly mindful of the factors identified in Ark. Stat. Ann. § 34-1214 urged by the Appellant and have concluded that an equal division of the marital property is supported by the preponderance of the evidence.
VII.
Appellant next claims the trial court erred in providing that alimony be terminated when the house is sold. Appellant contends that she is completely unemployable and that the proceeds from the sale of the residence are so speculative that she may not be able to support herself when the alimony terminates.
The Chancellor heard the Appellant’s testimony at the trial, including testimony relating to Mrs. Russell’s illness, her employment record, and her monthly financial needs. In his Memorandum Opinion, the Chancellor indicated the reasons for terminating alimony when the house is sold:
The court is not allowing alimony after the house is sold for the reason that she will be receiving substantial property settlement at that time, she settled her claim for disability, this period of time together with the long period of separation should be ample time for her to rehabilitate herself in order to secure employment.
The trial court has broad powers to determine the award of alimony, particularly when the divorce is granted on the grounds of three year separation, and we cannot say that the termination of alimony when the house is sold is clearly against the preponderance of evidence. Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620 (1961). As we have indicated earlier, we do not reverse the decision of the Chancellor on a disputed fact question unless the decision is clearly against the preponderance of the evidence. Rule 52, Ark. R. Civ. P. In the event Mrs. Russell’s physical and financial circum stances at the time of the sale of the home are different from what the Chancellor anticipated in his Memorandum Opinion, our law is sufficiently flexible to permit the Chancellor to modify the alimony award at that time. See Ark. Stat. Ann. § 34-1211 (Cum. Supp. 1981); Ford v. Ford, 272 Ark. 506, 616 S.W. 2d 3 (1981); Boyles v. Boyles, 268 Ark. 120, 594 S.W. 2d 17 (1980); Pledger v. Pledger, 199 Ark. 604, 135 S.W. 2d 851 (1940).
VIII.
Finally, the Appellant contends that the $500.00 per month alimony award and the $200.00 per month child support award are inadequate.
Appellant insists that Mr. Russell’s admitted marital misconduct should increase the amount of the alimony award. However, we think our holding in Drummond v. Drummond, 267 Ark. 449, 590 S.W. 2d 658 (1979) largely settles this issue. Drummond arose out of an alimony termination hearing, but the reasoning of that case is equally applicable here:
... Alimony is not awarded as a reward to the receiving spouse or as punishment of the spouse against whom it is charged. It is an effort, insofar as is reasonably possible, to rectify the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Its continuation is not dependent on the good conduct of either spouse. While each case must and should be governed by its particular facts, it can be stated as a general principle that alimony should be terminated or modified by circumstances which relate to its need by the recipient or the ability to pay by the spouse against whom it is assessed.
Unless the alleged misconduct meaningfully relates to the need for support by the recipient or the ability to pay by the spouse against whom it is charged, the misconduct is not a permissible consideration in the determination of the alimony award. If we adopted Appellant’s view that marital misconduct is a permissible consideration, we would, for dubious benefit, measurably expand the opportunity for acrimonious litigation. Consistent with our holding in Drummond, we conclude that Appellee’s marital conduct prior to the divorce should not serve as a basis for increasing the alimony award. See Byrd v. Byrd, 252 Ark. 202, 478 S.W. 2d 45 (1972).
The amount of child support and alimony awarded must depend upon the particular facts of each case. Dean v. Dean, 222 Ark. 219, 258 S.W. 2d 54 (1953). Mr. and Mrs. Russell had been married for 18 years and had lived together for 14 years. Mrs. Russell testified that she had been under the continual care of physicians for the last year and that she was unable to work. However, she also has received a sizable award of marital property and will receive a substantial equity in the family residence when the home sells.
Mr. Russell’s gross pay at the time of the trial was $2,903.00 per month. The record indicates that $881.24 is taken out of that amount each month for state and federal income taxes and social security withholding, leaving a net take-home pay of $2,021.76. Together, the child support and alimony awards total $700.00 per month, a substantial amount in relation to Mr. Russell’s take-home pay. See Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979); see also Stevens v. Stevens, 271 Ark. 248, 608 S.W. 2d 17 (1980). In making the award, the Chancellor evidently believed that Mrs. Russell would be able to rehabilitate herself and find employment. If Mrs. Russell was not required to make the $275 monthly house payment from this amount, this award would be adequate. In this case, however, Mr. Russell will recover one-half of that portion of the house payment which reduces the principal balance of the mortgage when the house sells. In the meantime, he may deduct the alimony payment while Mrs. Russell will be required to report the alimony award, including that portion used to make the house payment, as taxable income. See, INT. REV. CODE of 1954, § 71 (a) and (d). Under these circumstances, we hold that the Appellant should receive an additional award of $225 per month in alimony. That allowance is always subject to modification upon the application of either party. Knopf, supra; Pledger, supra.
The Appellant’s attorneys are awarded a fee of $750.00 for services rendered in connection with this appeal, to be paid by Appellee. Costs of this appeal are assessed against the Appellee.
Affirmed as modified.
Hickman, J., not particpating.
In addition to the stock purchase agreement discussed here, these shares were also subject to a separate re-purchase agreement granted the company on July 28, 1977. The second agreement grants the corporation certain options to re-purchase the shares upon the employee’s retirement or attaining of age 65. It is not relevant to the determination of the issues in this case.
Appellee admitted in interrogatories filed with the Court that he was living with his former wife, Mrs. Joan Russell. | [
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George Rose Smith, Justice.
Some 50 days after having received a 20-year sentence upon a negotiated plea of guilty to charges of aggravated robbery and habitual criminality, the appellant filed a Rule 37 petition for postconviction relief, asserting ineffective assistance of counsel in that his attorney had erroneously advised him that if he were found guilty the jury would have to impose a sentence of either 50 years or life. After an extended hearing the trial court denied the petition. The appeal comes to this court under Rule 29 (1) (e).
Inasmuch as the denial upon conflicting testimony does not appear to be erroneous, appellant’s present attorney has understandably abandoned his client’s original ground for relief and now argues only that Virgin’s first lawyer testified at the Rule 37 hearing that he had advised Virgin that the range of punishment was from 10 years to 50 years or life. It is asserted that the advice was wrong in that the minimum was actually 5 years. Even so, in the trial court Virgin did not even hint in his petition or in his testimony that he had been concerned about the minimum sentence. Moreover, in testifying before his former lawyer took the stand, Virgin stated under oath three separate times that his lawyer had advised him that the minimum was 5 years. Thus the present argument for reversal is totally without merit.
Affirmed. | [
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Cliff Hoofman, Judge
| TThis is a domestic-relations case involving former spouses, Kimberly Stibich and Adam Stibich. This appeal follows particularly contentious postdecree litigation. In total, the circuit court presided over twenty days of trial and more than 200 motions, countermotions, and various other requests for relief. On appeal, Kimberly challenges several of the circuit court’s decisions relating to custody, child support, property division, and the award of attorney’s fees. We affirm in part and reverse and remand in part.
I. Facts
Kimberly and Adam married in May 1998 after entering into a prenuptial agreement. Two children were born of the marriage; S.S. on October 28, 2003, and A.S. on September 6,2006.
|Jn May 2007, Kimberly filed for divorce from Adam. In September 2009, the circuit court entered a decree of divorce awarding custody of the parties’ children to Kimberly. The decree also required Adam to pay temporary child support in the amount of $10,000 per month until the circuit court could make a final ruling regarding the amount of child support he was obligated to pay. This decree did not dispose of the parties’ property and debt issues. Adam filed an interlocutory appeal of the circuit court’s custody ruling pursuant to Arkansas Rule of Appellate Procedure-r-Civil 2(d), and this court affirmed. See Stibich v. Stibich, 2011 Ark. App. 308, 378 S.W.3d 906.
Following this court’s decision on the interlocutory appeal, the parties began litigating a litany of issues. This impetus for the renewed litigation came from Adam’s filing of a motion for contempt, a motion for psychological evaluation, a motion to change custody, and a motion to reduce his child-support obligation four days after the entry of the circuit court’s November 30, 2009 supplemental decree. Additionally, the circuit court had yet to dispose of all of the parties’ property and debt.
The litigation that followed was lengthy and difficult and focused primarily on issues related to the custody of the parties’ children, child support, and the distribution of marital property. Ultimately, the circuit court entered a thorough and exhaustive final order wherein it undoubtedly put forth great effort to ensure that it provided this court with a | ¡¡clear understanding of its decisions and- a final order that fully disposed of all pending issues. In it, the circuit court awarded the parties joint custody, retroactively reduced Adam’s child support to $8,047 per month, found that Adam owed Kimberly for child-support . arrearages, terminated Adam’s current child-support obligation, fully disposed of the parties’ marital property issues, and awarded Adam $15,000 in attorney’s fees. This timely appeal by Kimberly followed.
Kimberly raises several arguments on appeal. Kimberly contends that the circuit court erred (1) by awarding the parties joint custody of their two children, (2) by terminating .Adam’s child-support obligation upon the award of joint custody, (3) by deciding to offset money Adam owed her for child-support arrearages with money she owed him, (4) by requiring her to reimburse Adam for payments he made on behalf of the parties from 2007 to 2009, and (5) by awarding Adam $15,000 in attorney’s fees.
II. Custody and Child Support
For her first point on appeal, Kimberly challenges the circuit court’s decision to modify its previous custody decision and award the parties joint legal custody of their two minor children. This court performs a de novo review of child-custody matters, but we will not reverse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999). We recognize and give special deference to the superior position of a circuit court to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). For a circuit court to change custody of children, it must first determine that a material' change in circumstances has transpired from the time of the divorce decree and then determine that a change in custody is in the best interest of the children. Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).
First, we consider whether the court erred in determining there had been a material change in circumstances to warrant a change in .custody. In concluding that there had been a material change in circumstances, the circuit court indicated that its main consideration was Kimberly’s “overall- lack of judgment subsequent to the divorce.” In its letter opinion, the court outlined several examples of Kimberly’s lack of judgment including,
(1) Ms. Stibich just being with a person like J. Davidson under any circumstances, caused me concern, let alone living with him and having sex in front of tlie children.
(2) Unreasonableness regarding visitation.
(3) Not informing .the defendant of mat- ■ ters involving the children. -
(4) Damage to property.
(5) Keeping property to which she was not entitled.
(6) Stalking.
(7) The plaintiffs allegations to OC-SEU, the Prosecuting. Attorney,' various elected officials, and most importantly, to the State Medical Board, of which at least most were false but all were malicious.
(8) Alcohol habits.
(9) ■ Spending habits.
(10) 1 have’ serious concerns about her credibility formed during testimony and demeanor through over twenty days of trial, as well as her inability and/or unwillingness to answer most questions,
The court also indicated that it considered the findings and recommendations of Dr. Virginia Krauft, an expert appointed by the court to perform a psychological evaluation of the parties, and Bruce Dodson, a licensed professional counselor who provided marriage counseling to 1 Kthe parties and then counseled Kimberly following the divorce.
The circuit court is in a superior position to evaluate witnesses and their testimony, and we give great deference to the circuit court’s findings. Sharp, supra. Here, the circuit court made numerous factual findings to support its conclusion, and many of those. findings regarding Kimberly’s lack of judgment would directly .affect the children. It is apparent from the evidence and the circuit court’s letter opinion that the court found that the parties’ difficulties had substantially worsened since the previous custody determination. We cannot say that the circuit court erroneously concluded that a material change in circumstances had occurred.
With this determination made, we direct- our review to whether the circuit court’’ erred by ordering the parties to share joint custody. In reviewing the award of joint custody, we recognize that our law regarding joint custody has recently changed. In 2013, our legislature amended Ark.Code Ann. § 9-13-101 to provide that an award of joint custody is favored in Arkansas. Ark.Code Ann. § 9-13-101 (a)(l)(A)(iii) (Repl. 2015). This is a departure from prior case law holding that joint custody is not favored unless circumstances clearly warrant such action. Gray v. Gray, 96 Ark. App. 155, 239 S.W.3d 26 (2006). Regardless of whether joint custody is favored, our law remains that “the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint, custody,' and such an award is reversible error where cooperation between the parents is lacking.” Id. at 157-58, 239 S.W.3d at 29 (citing Word v. Remick, 75 Ark. App. 390, 395-96, 58 S.W.3d 422, 426 (2001)).
| fiOne must look no further than the circuit court’s letter opinion regarding custody to be left with a firm conviction that a mistake was made. The letter opinion provides that the parties’ “unwillingness to agree on anything” led to the length of this case. (Emphasis in original.) The letter opinion further provided that the court “was not optimistic about- any agreements being reached” regarding visitation. The court later mentioned the parties’ “inability to agree on anything” and their “unwillingness to agree on anything and to fight about even the most insignificant matters.” Finally, the amended final order and judgment provides, “[i]f the parties feel that the Court is not at all confident that the parties will set aside their personal differences and work together for the best interest of the children, they would be absolutely correct.”
It is contrary to the best interest of the children to award joint custody to parents who cannot cooperate — particularly when cooperation is lacking on matters pertaining to the care and upbringing of the children. After a de novo review, it is abundantly clear that Kimberly and Adam do not possess the willingness and ability to cooperate in reaching shared decisions regarding their children.- We are left with a firm conviction that the circuit court made;.a mistake when it concluded that joint custody was proper. Accordingly, we reverse the circuit court’s award of joint custody and remand this case to the circuit court for an award of custody based on its determination of the best interest of. the children.
With the child-custody award reversed and remanded, we do not reach the merits of Kimberly’s arguments against the termination of Adam’s child-support obligation. The issue of current child support must also be remanded to the circuit court. See Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348.
bill. The Offset
During the course of the proceedings, the circuit court determined that Adam owed Kimberly $56,133.30 for child-support arrearages; the circuit court also found that Kimbérly owed Adam $214,180,47 for various debts. The court offset the amount Adam owed in child-support arrearages against the amount Kimberly owed him. This offset resulted in Adam owing Kimberly nothing and Kimberly owing Adam $158,047.17.- Kimberly finds fault with the circuit court’s decision to offset Adam’s child-support ar-rearages against the money she owed him.
A child-support judgment is subject to the equitable defenses that apply to all other judgments. Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993). In a proper case, an equitable defense may apply, to prevent the collection of past-due child-support payments. State Office of Child Support Enf't v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998). Our case law provides that offset is an equitable defense. Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). Adam properly raised the defense of offset in his pleadings, and the circuit court accepted it as an equitable defense to his child-support arrearage. Faced with the large sum of money Kimberly owed Adam and Kimberly’s lack of income, we cannot say that the trial court erred in awarding an offset. Accordingly, we affirm on this point.
IV. Division of Property
Kimberly also challenges the circuit court’s division of some of the parties’ marital debt. Specifically, she contends that the circuit court erred when it ordered that she be responsible for reimbursing Adam $128,940.81 — this figure represents the payments he | smade toward a mortgage held by Simmons Bank on the marital home. With respect to the division of property in a divorce case, we review the court’s findings of fact and affirm them unless they are clearly erroneous or clearly against the. preponderance of the evidence. Weatherly v. Weatherly, 87 Ark. App. 291, 190 S.W.3d 294 (2004).
Kimberly argues that the parties’ July 2008 temporary consent order requires that Adam be responsible for this debt. In the temporary consent order, Adam agreed to be solely responsible for all of the parties’ monthly payments on the mortgage indebtedness, lines of credit, revolving credit, or any other loans that were outstanding in the parties’ names during the pendency of this matter. However, the temporary consent order also provided that it was “not a final adjudication as to debt responsibility.”
At the time of the entry of the temporary consent order, the validity of the parties’ prenuptial agreement was in dispute. The prenuptial agreement, if valid, governed the disposition of the parties’ property and provided that, in the event of divorce, any jointly titled real estate would remain in Adam’s possession and that neither party could seek maintenance from the other. Ultimately, the circuit court found that the prenuptial agreement was valid in an order for partial summary judgment entered in September 2009. In that order and pursuant to the terms of the prenuptial agreement, the circuit court ordered that all maintenance to Kimberly cease. The circuit court also recognized that Kimberly received the benefit of the use of the marital home without having to pay for it, which was in contravention of the terms of the parties’ prenuptial agreement. As such, the court reserved for adjudication the issue of reimbursement of maintenance already paid to | flKimberly by Adam. Her argument that the July 2008 consent order governs the allocation of the Simmons mortgage indebtedness is without merit.
Additionally, Kimberly did not present evidence to dispute the evidence regarding the amounts Adam paid on her behalf. Leila Newkirk-Davis, a court-appointed expert, testified regarding the amount of money Adam paid toward the indebtedness on the marital home while Kimberly was in possession of the home. Kimberly did not object to or contradict Ms. Newkirk-Davis’s testimony, and the circuit court ultimately adopted Ms. Newkirk-Davis’s figures and ordered that Adam was entitled to reimbursement from Kimberly for an amount equal to the reduction in principal on the indebtedness due on the marital home. Accordingly, the circuit court’s decision was not clearly erroneous.
V. Attorney’s Fees
For her final point on appeal, Kimberly disputes the propriety of the circuit court’s decision to award Adam $15,000 in attorney’s fees. In her appellate brief, Kimberly contends that the award of attorney’s fees impermissibly violated the terms of the parties’ prenuptial agreement. However, Kimberly never raised this argument at trial. Arguments not raised at trial will not be addressed for the first time on appeal, and parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial. Rudder v. Hurst, 2009 Ark. App. 577, at 13, 337 S.W.3d 565, 574. We summarily dispose of this final point on appeal.
Affirmed in part; reversed and remanded in part.
Abramson and Whiteaker, JJ., agree.
. The current appeal returns to this court after our previous order for rebriefing. See Stibich v. Stibich, 2015 Ark. App. 369, 2015 WL 3507652.
. On November 30, 2009, the circuit court entered a supplemental decree ordering Adam 'to pay $15,057.98 per month in child support.
. Adam inexplicably devotes ten pages of his argument on appeal to disputing the propriety of decisions reached in the interlocutory appeal. These issues are not currently before this court, and we will not address them further.
. Kimberly’s former boyfriend and a witness for Adam. | [
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Donald L. Corbin, Justice.
This is an original action, whereby this court accepted certification of a question of law submitted by the United States District Court of Arkansas, Eastern District, pursuant to Arkansas Supreme Court Rule 6-8. See Dodson v. Norris, 371 Ark. 661, 269 S.W.3d 350 (2007) (per curiam). The question of law to be answered by this court is: Whether a motion for a belated appeal, as provided for in Arkansas Criminal Appellate Rule 2(e), of a state circuit court’s order denying relief under Rule 37 of the Arkansas Rules of Criminal Procedure is a part of the ordinary appellate review procedure under Arkansas law. We conclude that a motion for belated appeal is not part of the ordinary appellate review procedure under our law.
According to the District Court’s order certifying this question to us, Dodson was convicted by a Garland County jury of possession of methamphetamine with intent to deliver, possession of marijuana, and was sentenced as a habitual offender to life imprisonment. This court affirmed his conviction and sentence in Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004), and later denied rehearing in the matter. During the pendency of his direct appeal, Dodson filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. He then filed an amended Rule 37 petition that the trial court denied on January 7, 2005. Dodson filed a notice of appeal from the January 7 order on February 10, 2005, and because that notice was untimely, the clerk of this court refused to accept the record. Thereafter, Dodson filed a motion for belated appeal on May 17, 2005, arguing that this court should adopt the “prison mailbox rule.” This court denied the motion on June 30, 2005, and Dodson’s subsequent application for certiorari to the United States Supreme Court was likewise denied. See Dodson v. Arkansas, 546 U.S. 915 (2005).
Dodson filed a petition for a writ of habeas corpus in the Jefferson County Circuit Court on November 21, 2005, challenging the Garland County Circuit Court’s jurisdiction over him, as well as challenging the facial validity of his judgment and commitment order. The circuit court entered an order on January 13, 2006, denying the petition and that decision was affirmed by this court on January 11, 2007.
Dodson filed a petition for writ of habeas corpus in District Court on April 18, 2007. Therein, he averred that he had exhausted all his state remedies. He then alleged that he was entitled to the writ because he (1) was denied his right to a speedy trial; (2) was not competent to stand trial; and (3) lacked effective assistance of counsel. Appellee Larry Norris, Director of the Arkansas Department of Correction, filed a motion to dismiss on July 27, 2007, arguing that each of Dodson’s claims for relief were time barred pursuant to 28 U.S.C. § 2244(d)(1) (2000), because Dodson failed to file his federal habeas petition within one year of the date his conviction became final and his state habeas proceeding did not toll sufficient time under § 2244(d)(2) to avoid this time limitation.
The issue in Dodson’s federal case that hinges on our answer to the present question is whether the time that will be tolled by the state postconviction proceeding that he filed pursuant to Rule 37 should include the time during which he petitioned for a belated appeal of that proceeding. Dodson argues that belated appeals are a part of the ordinary appellate review procedure. Citing to this court’s decision in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), Dodson states that where the court has granted the right to appeal, the appellate process must likewise provide a mechanism for the failures of the system or appellate counsel to protect that right to appeal. Moreover, in support of his contention that belated appeals are part of the ordinary appellate process, Dodson avers that this court regularly considers belated appeals, including belated appeals in Rule 37 proceedings. Thus, Dodson argued to the federal court that he was entitled to statutory tolling for the time that his motion for belated appeal was pending before this court.
Citing to Arkansas Rule of Appellate Procedure-Criminal 2(a)(4), the State admits that there is no question that a typical postconviction appellate review is part of the ordinary procedure for obtaining postconviction relief. The State counters, however, that a motion for belated appeal is not a venue for raising claims for postconviction relief that may later arise in a federal habeas petition and, consequently, is not itself a stage of the appellate process. The State concludes that in the absence of a timely filed notice of appeal, the “ordinary appellate review procedure” does not begin.
In analyzing the question before us, it is helpful to briefly review the applicable federal law dealing with habeas petitions. All federal habeas petitions filed after April 24, 1996, are governed by the Anti terrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 28 U.S.C. § 2254 (2000). Under the AEDPA, there is a one-year statute of limitations on petitions for writs of habeas corpus filed under § 2254. This limitations period, found at § 2244(d)(1), states in pertinent part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1), (2).
For a party to pursue federal habeas relief, all state remedies must first be exhausted. See O’Sullivan, 526 U.S. 838. The purpose of this rule is to allow state courts a full and fair opportunity to resolve claims before they are presented to the federal courts. Id. In discussing the exhaustion requirement, the Court elaborated and stated that a state prisoner must give the state courts the opportunity to act on claims before they are presented in a federal habeas petition. Id. The O’Sullivan Court further recognized that the exhaustion doctrine “raises a recurring question: What state remedies must a habeas petitioner invoke to satisfy the federal exhaustion requirement?” Id. at 842-43 (citing Castille v. Peoples, 489 U.S. 346, 349-50 (1989)). According to the Court, a state prisoner must give a state court “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” 526 U.S. at 845.
We now turn to the question at hand and begin our analysis by reviewing our treatment of belated appeals. Rule 2(e) of the Arkansas Rules of Appellate Procedure-Criminal governs belated appeals and provides:
Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.
In analyzing the foregoing rule, this court in McDonald, 356 Ark. 106, 146 S.W.3d 883, noted that it was responsible for setting the terms for obtaining relief when a party fails to perfect an appeal. Under Rule 2(e), an attorney or a party has the right to argue that there is good cause for failing to timely perfect an appeal or to concede error. This court then has the discretion whether or not to allow a belated appeal to go forward. Simply stated, a motion for belated appeal is a remedy that is available to a party in a situation where there has been a failure to follow the ordinary appellate review procedure. Cf. Rumph v. State, 746 So. 2d 1249 (Fla. Dist. Ct. App. 1999) (noting that a belated appeal may be allowed where exceptional circumstances render the ordinary appellate process unavailable).
Moreover, those steps that are part of the ordinary appellate review procedure do not require that an attorney or party first seek this court’s leave to proceed. Finally, where an attorney seeks to proceed with a belated appeal after admitting error, this court refers that attorney to our Committee on Professional Conduct. See McDonald, 356 Ark. 106, 146 S.W.3d 883. We do this because the attorney has failed to comply with the ordinary appellate review procedure. In sum, this court, through Rule 2(e), allows a party to seek a belated appeal where either error or good cause prevents an appeal from moving forward in the ordinary appellate review procedure. Therefore, a motion for belated appeal is not part of the ordinary appellate review process.
Certified question answered.
The term “ordinary appellate review procedure” as set forth in the certified question was utilized by the United States Supreme Court in its analysis of the doctrine of exhaustion of remedies as set forth in O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
Dodson’s original appeal of his conviction was dismissed but later reinstated in response to a pro se motion filed by Dodson. See Dodson v. State, 356 Ark. 118, 146 S.W.3d 893 (2004) (per curiam).
Dodson originally filed a petition for a writ of habeas corpus in federal court but then moved to voluntarily dismiss the action so he could file it in state court. | [
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Per Curiam.
In accordance with § 2(D)(3) of Amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, Judge James M. Moody of the United States District Court for the Eastern District of Arkansas filed a certifying order with our clerk on May 22, 2008. The certifying court requests that we answer one question of Arkansas law that may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court. The law in question involves whether an individual supervisor may be held personally liable for alleged acts of retaliation under the Arkansas Civil Rights Act, codified at Ark. Code Ann. §§ 16-123-101 to -108 (Repl. 2006).
After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question:
Whether an individual supervisor can be held personally liable for alleged acts of retaliation under the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-101 et seq. (“ACRA”).
This per curiam order constitutes notice of our acceptance of the certification of the question of law. For purposes of the pending proceeding in the supreme court, the following requirements are imposed:
A. Time limits under Ark. Sup. Ct. R. 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Billy Battles, is designated the moving party and will be denoted as the “Petitioner,” and his brief is due thirty days from the date of this per curiam; the defendants, Mark Townsend and Southern Tire Mart, LLC, shall be denoted as the “Respondents,” and their brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondent’s brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Ark. Sup. Ct. R. 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Ark. Sup. Ct. R. 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondents.
Request granted. | [
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Paul E. Danielson, Justice.
Appellant Dwayne Dobbins appeals the order of the Pulaski County Circuit Court denying his motion for a writ of mandamus, injunction, and declaratory relief for being untimely pursuant to Arkansas Code Annotated section 7-5-801 (Repl. 2007). We find no error and, therefore, affirm.
The material facts of the case are these. Dobbins filed documents with appellee Democratic Party of Arkansas (DPA) seeking to be its nominee for State Representative, District 39. On appeal, he states that he ran unopposed in the primary election; however, on or about July 19, 2008, the DPA declined to certify Dobbins as its nominee for the November 4, 2008 general election. On July 21, 2008, the then-DPA Chairman Bill Gwatney advised Dobbins by letter that he was not certified as the DPA’s nominee and returned Dobbins’s filing fee.
Dobbins took no further action until twenty-five days prior to the general election, when on October 10, 2008, Dobbins filed a motion for a writ of mandamus, injunction, and declaratory relief, seeking that appellees be directed to certify him and to place him on the ballot for the position of State Representative, District 39. The circuit court held a hearing on October 17, 2008, after which the circuit court dismissed Dobbins’s claims, finding that he had failed to timely challenge the nomination within the time provided by Ark. Code Ann. § 7-5-801. Dobbins then filed a notice of appeal from the circuit court’s order that same day.
The circuit court’s written order was filed on October 21, 2008. The same day, Dobbins moved this court for a writ of mandamus, injunction, and declaratory relief, and further moved to expedite the hearing of his petition. Dobbins prayed for this court to direct the respondents to his petition (here, the appellees) to place him on the ballot for the position of State Representative, District 39. This court granted his motion to expedite and ordered simultaneous briefing by the parties on Dobbins’s petition.
Before proceeding to the merits of this case, we must determine whether the case before us is being presented as a writ of mandamus or an appeal. While Dobbins did file a timely notice of appeal with the circuit court and timely lodged the record with our clerk, the motion he then presented and requested this court to expedite was for a writ of mandamus, injunction, and declaratory relief that was almost identical to the writ he filed with the circuit court below. The case was listed on this court’s docket as a petition, not an appeal, and the only relief sought in his motion was for this court to directly issue a writ of mandamus instructing the adverse parties to replace his name on the ballot.
This court has previously observed that a petition for a writ of mandamus is an original action and that jurisdiction to issue a writ of mandamus to a city or officer lies within the circuit court. See Spatz v. City of Conway, 362 Ark. 588, 210 S.W.3d 69 (2005). Dobbins correctly filed his petition for a writ of mandamus in the circuit court; however, upon dismissal of his petition in circuit court, he may not file the same petition anew in this court. See id. Even if this court had jurisdiction to issue the writ, such a writ would not be available because the writ only issues where there is no other adequate remedy. See id. (citing Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995)). Here, Dobbins had the right to appeal the decision of the circuit court.
Although this case may well have been improperly presented as a writ of mandamus directed to this court, we are aware of the unique circumstances involved. The merits of this case involve an upcoming election and, therefore, time is of the essence. As we are mindful of that fact and of the need for judicial economy, and because Dobbins did timely file a notice of appeal, we will treat this case as an appeal from the circuit court’s order denying Dobbins’s request for the writ.
The standard of review on a denial of a writ of mandamus is whether the circuit court abused its discretion. See Republican Party of Garland County v. Johnson, 358 Ark. 443, 193 S.W.3d 248 (2004). Dobbins argues that the circuit court erred by applying Ark. Code Ann. § 7-5-801 and finding that his writ was untimely because it was not filed within twenty days of the date the DPA declined to certify him as its nominee. We find no error and affirm.
The private postelection right to challenge an election is provided by Ark. Code Ann. § 7-5-801. Section 7-5-801 states:
(a) A right of action is conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.
(b) The action shall be brought in the circuit court of the county in which the certification of nomination or certificate of vote is made when a county or city or township office, including the office of county delegate or county committeeman, is involved, and except as provided in this subchapter, within any county in the circuit or district wherein any of the wrongful acts occurred when any circuit or district office is involved, and except as provided in this subchapter, in the Pulaski County Circuit Court when the office of United States Senator or any state office is involved.
(c) If there are two (2) or more counties in the district where the action is brought and when fraud is alleged in the complaint, answer, or cross-complaint, the circuit court may hear testimony in any county in the district.
(d) The complaint shall be verified by the affidavit of the contestant to the effect that he or she believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.
(e) The complaint shall be answered within twenty (20) days.
Here, Dobbins clearly objected to the certification. Although, technically, his objection was that the DPA failed to certify him as a general-election candidate, this court has previously applied this statute to a failure to certify. See Daniels v. Weaver, 367 Ark. 327, 240 S.W.3d 95 (2006). Therefore, Dobbins had twenty days after he was denied certification to contest the certification. As previously noted, the decision not to certify Dobbins was made by the DPA on July 19, 2008, the DPA notified Dobbins by letter dated July 21, 2008, and Dobbins did not file his motion with the circuit court until October 10, 2008.
Dobbins contends that the facts of this case are distinguishable from those presented in Weaver, supra, because he asserts that unlike Weaver, he had been placed on the ballot and then “illegally removed” from the ballot by the DPA. However, the record is clear that while he ran unopposed in the primary election, the DPA chose not to certify him to be placed on the general-election ballot. His name was never placed on the ballot for the general election and, therefore, he was not “illegally removed” from the ballot. His remedy was to contest the DPA’s failure to certify him for placement on the ballot.
We hold that Dobbins did not timely challenge the DPA’s failure to certify him for placement on the general-election ballot within the twenty days required by Ark. Code Ann. § 7-5-801. Therefore, the circuit court did not abuse its discretion by denying Dobbins’s motion, and we, accordingly, affirm. The mandate herein will issue on October 30, 2008, unless a petition for rehearing is filed. Any petition for rehearing must be filed by October 28, 2008, and any response by October 29, 2008.
Affirmed.
Wills, J., not participating.
The record reveals that Dobbins cashed the DPA’s check refunding his filing fee.
Although the notice of appeal was filed prior to the filing of the circuit court’s order, it shall be treated as filed on the day after the order was entered. See Ark. R. App. P.-Civ. 4(a) (2008). | [
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Annabelle Clinton Imber, Justice.
Appellants James Richard Mays and William Coke Viser are appealing an order of the Circuit Court of Clark County that upheld the sufficiency of signatures to an initiative petition to be placed on the ballot at the November 4,2008 general election. The initiative would allow the directors of Arkansas Beverage Control to issue permits for the retail sale of vinous, spirituous, or malt liquor in Clark County. Our jurisdiction to determine this matter is pursuant to Arkansas Supreme Court Rule 1-2 (a) (4) (2008). For the reasons stated herein, we reverse the circuit court’s ruling and direct that no votes cast on this initiative be counted.
On September 15, 2008, Appellee, Rhonda Cole, Clark County Clerk, certified the “wet/dry” initiative petition for placement upon the ballot at the November 4, 2008 general election. Of the 6116 signatures submitted by proponents of the initiative, Appellee certified 4168, leaving twenty-eight more than the 4140 signatures required by statute, as determined by Appellee, for this initiative to be placed on the November ballot. Ark. Code Ann. § 3-8-205 (Repl. 2008). Appellee testified that her office reviewed every signature submitted and removed 1948 of them because they were duplicates, signed on the same day that the signers signed their voter registration applications according to the record, or signed by persons who were not residents of Clark County.
Appellants filed a complaint on September 19, 2008, and an amended complaint on September 24, 2008, challenging the validity of the certification. Appellants alleged that many of the signatures counted for the purpose of certification were in fact void because, among other reasons, (1) some signatures were signed by people who registered to vote on the same day they signed the petition and before they became “registered voters,” and (2) two signatures were forged and were not signed by individuals whose names appeared on the petition. On September 30, 2008, the circuit court granted Morgan A. Berry’s motion to intervene and held a hearing on this matter. During the hearing, Appellants submitted evidence through twenty-six witnesses (by actual or stipulated testimony), who verified that they signed the petitions on the same day they signed their voter registration applications. Appellants also presented affidavits by two people, whose names and signatures appear on the petition, stating that they did not sign the petition. Appellee and Intervenor Appellee (together “Appellees”) did not produce any evidence to the contrary, or otherwise dispute the evidence produced by Appellants. The circuit court entered an order on October 17, 2008, dismissing Appellants’ complaint. The circuit court held, among other things, that (1) Appellants failed to produce evidence that any signature, with the exception of two alleged forgeries, certified by Appellee should be invalidated, and (2) signatures of those who registered to vote on the same day as they signed the petition were valid, and any signature deleted from the petition solely because the voter registration application and petition were signed on the same date should be certified as valid signatures.
Appellants filed a timely notice of appeal and a motion to expedite the appeal on October 23, 2008, which we granted on October 24, 2008. On appeal, Appellants argue that (1) a signature is not valid if the signer signed the petition before he or she was registered to vote, and (2) Appellants produced evidence of two forged signatures on a petition that Appellee counted, which shifted the burden of proof to Appellees to prove the genuineness of the signatures on that petition, and Appellees have failed to meet this burden. We begin with Appellants’ first argument.
I. Validity of Signature
The circuit court held that a signature was valid when the signer signed the petition on the same day he or she signed the voter registration application. The court further held that a strict construction of the provisions concerning local referendums would result in an arbitrary denial of an individual’s reasonable expectation that, once the voter registration application was completed as required by law, he or she was a registered voter and entitled to exercise all the rights of a registered voter.
Appellants argue that, according to section 9(c)(1) of Amendment 51 to the Arkansas Constitution, a voter is not qualified to sign a petition before his or her completed voter registration application is received and acknowledged by the permanent registrar, in this case, the Appellee. As a result, those signatures signed by unqualified voters are void and must be removed from the petition. Appellee concedes that counting signatures by voters who signed their voter registration applications on the same day violates Amendment 51. Intervenor Appellee, on the other hand, advocates the standard of reasonable expectation of a voter as articulated by the circuit court and argues that this interpretation adds certainty to the interpretation of section 9(c)(1) of Amendment 51 “if applied for the period between registration and the recording of that registration.”
We review issues of statutory construction de novo. Sturdivant v. Sturdivant, 367 Ark. 514, 517, 241 S.W.3d 740, 743 (2006). The basic rule of statutory construction is to give effect to the intent of the legislature. Rose v. Ark. State Plant Bd., 363 Ark. 281, 289, 213 S.W.3d 607, 614 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.
This initiative was placed on the ballot as a local option election under the Arkansas Alcoholic Control Act, as codified in Ark. Code Ann. §§ 3-1-101 to -606 (Repl. 2008). Section 3-8-204 of the Local Option Code establishes rules on petition procedure and section 3-8-204(e) provides:
Any person who is a qualified elector of the State of Arkansas and who is a resident and registered voter of the county, municipality, ward, precinct, or other defined area in which a local option election is being requested by petitions under Initiated Act No. 1 of 1942, §§ 3-8-201 - 3-8-203 and 3-8-205 - 3-8-209, may sign the local option petition in his or her own proper handwriting and not otherwise.
Ark. Code Ann. § 3-8-204(e) (Repl. 2008). Appellee certified the sufficiency of the petition pursuant to section 3-8-205 of the Local Option Code. That section provides in relevant part as follows:
(a)(1) When thirty-eight percent (38%) of the qualified electors shall file petitions with the county clerk of any county within this state praying that an election be held in a designated county township, municipality, ward, or precinct to determine whether or not licenses shall be granted for the manufacture or sale or the bartering, loaning, or giving away of intoxicating liquor within the designated territory, the county clerk within ten (10) days thereafter shall determine the sufficiency of the petition.
(2) The total number of voters registered as certified by the county clerk to the Secretary of State by the first of June of each year pursuant to Arkansas Constitution, Amendment 51 shall be the basis upon which the number of signatures of qualified electors on petitions shall be computed.
(3) A person shall be a registered voter at the time of signing the petition.
(b) If it is found that thirty-eight percent (38%) of the qualified electors have signed the petition, the county clerk shall certify that finding to the county board of election commissioners, and the question shall be placed on the ballot in the county, township, municipality, ward, or precinct at the next biennial general election as provided in § 3-8-101.
Ark. Code Ann. § 3-8-205 (Repl. 2008). Act 963 of 1995, codified at Ark. Code Ann. § 7-1-101(22) (Repl. 2007), defines a “qualified elector” as a person who holds the qualifications of an elector and who is registered pursuant to Arkansas Constitution, amendment 51.
Article 5, section 1 of the Arkansas Constitution, incorporating amendment 7, governs both state-wide and local initiatives and referendums. Ark. Const, art. 5, § 1. It also provides, under subhead “verification of petition,” that “only legal voters shall be counted upon petitions.” Id. Section 7-9-101(5) of the Arkansas Code defines a “legal voter” as “a person who is registered at the time of signing the petition pursuant to Arkansas Constitution, amendment 51.” Ark. Code Ann. § 7-9-101(5) (Repl. 2007). Section 9 of amendment 51 to the Arkansas Constitution sets forth the general requirements for voter registration. That section, in pertinent part, states:
(c)(1) The permanent registrar shall register qualified applicants when a legible and complete voter registration application is received and acknowledged by the permanent registrar.
(2) Any person who assists applicants with a voter registration application as part of a voter registration drive or who, in furtherance of a voter registration drive, gathers or possesses completed applications for submission to the permanent registrar or Secretary of State shall deliver all applications in his or her possession to the permanent registrar or Secretary of State within twenty-one (21) days of the date on the voter registration application and, in any event, no later than the deadline for voter registration for the next election.
(d) The permanent registrar shall notify applicants whether their applications are accepted or rejected, or are incomplete. If information required by the permanent registrar is missing from the voter registration application, the permanent registrar shall contact the applicant to obtain the missing information.
Ark. Const, amend. 51, § 9. Section 2 of amendment 51 defines “permanent registrar” as “the County Clerk in each of the several counties of this State.” Ark. Const, amend. 51, § 2.
It is, therefore, clear from the Constitution and the statutes that a person has to be a registered voter at the time he or she signs the petition and a person is not registered until the county clerk receives and acknowledges his or her voter registration application. Our case law is also explicit about this requirement. In Roberts v. Priest, we held that a petition signer must have been a registered voter at the time he signed the petition. 334 Ark. 503, 516, 975 S.W.2d 850, 855 (1998).
The circuit court concluded that an unregistered voter could sign the petition if he or she had a reasonable expectation that once the voter registration application was completed, he or she was a registered voter and entitled to exercise the rights of a registered voter. This conclusion is not supported by authority and is contrary to amendment 51 to the Arkansas Constitution. Section 9(c)(1) of amendment 51 clearly indicates that a qualified applicant is not registered until the permanent registrar “receives” and “acknowledges” a “legible and complete voter registration application.” Ark. Const, amend. 51, § 9(c)(1). Furthermore, acceptance of an application by a person who assists applicants with their voter registration applications as part of a voter registration drive has no legal effect on the registration of the applicant, and the person has twenty-one days to deliver the application to the permanent registrar. Ark. Const, amend. 51, § 9(c)(2). Accordingly, any expectation that one is registered and has the right to sign a petition immediately after he or she submits the application to a canvasser at a voter registration drive on a university campus, as in the instant case, is unreasonable. It may be true that many signers did believe that they were registered immediately after they signed their applications and expected their signatures to be counted. Yet, ignorance of law, by either the canvassers or the signers, is no excuse and cannot make one’s unreasonable expectation reasonable. Belding v. Whittington, 154 Ark. 561, 567, 243 S.W. 808, 810 (1922).
To require a voter to be registered before signing a petition is not only the correct interpretation of the statutes, but it is also good policy. As Justice Tom Glaze reiterated in a concurring opinion, if initiative-petition signers were not required to be registered voters, the Secretary of State or permanent registrar would have no list of voters to verify petitions circulated pursuant to Amendment 7. Roberts v. Priest, 334 Ark. at 518, 975 S.W.2d at 856 (Glaze, J., concurring).
II. Two Allegedly Forged Signatures
Appellants allege that the canvassers committed fraud in obtaining the signatures because the circuit court found that two signatures were forged. Appellants then argue that where fraud on the part of canvassers who obtained the signatures is shown, the prima facie case made by the affidavit of a circulator in favor of genuineness of the petition is overcome, thereby shifting the burden of proof to Appellees to establish the genuineness of each signature on the petition. Appellants allege that, because Appellees did not produce any evidence to verify the signatures, they have not satisfied their burden of proof.
In response, Appellee asserts that all of Appellants’ witnesses indicated that they knew that they were signing the petition and knew what the petition meant, and none of them testified that they had been defrauded, tricked, or inappropriately advised as to what they were signing, with the exception of two persons who claimed their signatures were forged. Appellee, therefore, concludes that there was not a widespread effort by the canvassers to defraud persons into signing this petition. Intervenor Appellee further responds that the burden of proof does not shift to Appellees until there has been a finding of forgery due to the willful misconduct by a canvasser. In that regard, Intervenor Appellee notes that the order of the circuit court only “mentions” the alleged forgery of two signatures and made no finding that the two signatures were in fact forged.
The Arkansas Constitution places the burden of proof upon the person or persons attacking the validity of the petition. Ark. Const, art. 5, § 1. Under the subhead on verification of petitions, article 5, section 1 of the Arkansas Constitution provides:
Only legal voters shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter and no other affidavit or verification shall be required to establish the genuineness of such signatures.
Ark. Const, art. 5, § 1. This provision, as to the effect to be given the affidavit of the circulator, has been interpreted to mean that the circulator’s affidavit is given prima facie verity. Parks v. Taylor, 283 Ark. 486, 491, 678 S.W.2d 766, 768 (1984) (citing Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940)). But this presumption is not conclusive. Id. If it is shown that the affidavit attached to a particular petition is false, that petition loses the presumption of verity. Id. The burden will then shift to the proponent of the petition to establish the genuineness of each signature. Id.
According to Intervenor Appellee, the burden shifts to Appellees only when there has been a finding of willful misconduct on the part of the circulator and a finding of forgery. That contention by Intervenor Appellee, however, must fail because the General Assembly has spoken on this point with respect to county initiative petitions. See Act of Mar. 24, 1977, No. 742, 1977 Ark. Acts 1736, now codified at Ark. Code Ann. § 14-14-915(d) (Repl. 1998). Section 14-14-915(d) reads:
(d) Sufficiency of Petition. Within ten (10) days after the filing of any petition, the county clerk shall examine and ascertain its sufficiency. Where the petition contains evidence of forgery, perpetuated either by the circulator or with his connivance, or evidence that a person has signed a name other than his own to the petition, the prima facie verity of the circulator’s affidavit shall be nullified and disregarded, and the burden of proof shall be upon the sponsors of petitions to establish the genuineness of each signature. If the petition is found sufficient, the clerk shall immediately certify such finding to the county board of election commissioners and the quorum court.
Ark. Code Ann. § 14-14-915(d) (Repl. 1998). Section 14-14-915(d) does not include the “conscious falsity” element. Save Energy Reap Taxes v. Yota Shaw & Morris Street, 374 Ark. 428, 288 S.W.3d 601 (2008). The statutory language only requires “evidence of forgery, perpetuated either by the circulator or with his connivance, or evidence that a person has signed a name other than his own to the petition,” in order for the burden to shift. There is no requirement that the forgery be proved. We have held that section 14-14-915(d) controls this issue for county initiatives. Id.
Appellants submitted affidavits by two people, whose alleged signatures appear on a petition, in which they state under oath that they did not sign the petition. The circuit court’s order acknowledges that Appellants produced evidence of two allegedly forged signatures. Therefore, they have satisfied their burden of proof under section 14-14-915(d), and the burden of proof shifted to Appellees to prove the genuineness of the signatures on the petition. In view of the fact that Appellees failed to produce any evidence on this issue, all the signatures on the petition that contains the alleged forgeries must be decertified. According to the record, fourteen of the signatures on that petition, including the two allegedly forged signatures, were counted for the purpose of certification. We, therefore, direct that all fourteen signatures be decertified.
III. Twenty-Six Signatures by Unregistered Voters
We have already held that a person is not qualified to sign the petition before he or she has registered to vote with the county clerk. Accordingly, all the signatures by signers who signed their voter registration applications on the same day that they signed the petitions should be, and hereby are, declared void. Appellee testified that her office did not certify the signatures that were signed on the same day that the signers filled out and signed voter registration applications. Despite that testimony, Appellants claim that, among the signatures certified by Appellee, there are still signatures by signers who were not registered voters at the time they signed the petition. In support of their claim, Appellants submitted evidence through twenty-six witnesses, whose names and signatures appear on the petition. These witnesses (either by actual or stipulated testimony) verified that they registered on the same day that they signed the petition. Two of the witnesses also testified that they witnessed other signers signing the petitions and their voter registration applications on the same day. The record shows that the signatures of these twenty-six witnesses were counted for purposes of certification. Appellees did not present any additional evidence, nor did they dispute the testimony of the twenty-six witnesses. They only argue that even if the twenty-six signatures were decertified, the petition still has the minimum number of signatures required for placement on the ballot. As we have already found that fourteen other signatures are void and have to be decertified, the petition does not meet the signature requirement of section 3-8-205 of the Local Option Code.
To summarize, we hold that the circuit judge erred in construing the relevant provisions of the Arkansas Constitution and statutes to allow persons to sign the petition before they became registered voters. We, therefore, reverse the circuit court’s ruling and set aside the certification of the question regarding the sale of alcoholic beverages in Clark County for placement on the November 4, 2008 ballot. We further direct that no votes cast on this question be counted.
The mandate shall issue immediately.
Reversed.
A petition must be signed by thirty-eight percent of the qualified electors in any given county in order to certify a “wet/dry” election. Ark. Code Ann. § 3-8-205 (Repl. 2008). The county clerk determines the number of signatures needed based on the number of voters registered as certified by the county clerk to the Secretary of State by the first of June of each year pursuant to Arkansas Constitution, amendment 51.
None of the twenty-six signatures by people who signed the petitions and their voter registration applications at the same time are included in the fourteen signatures decertified earlier. | [
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Per Curiam.
Appellant Robert Mitchem, by and through his attorney, John Wesley Hall, Jr., moves this court for a belated appeal. Mr. Hall states that the record was not timely filed due to a mistake on his part. As Mitchem’s notice of appeal was timely filed, we treat his motion as a motion for rule on clerk to lodge the appeal rather than a motion for belated appeal. See Holland v. State, 358 Ark. 366, 190 S.W.3d 904 (2004).
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 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 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., 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. Hall has candidly admitted fault. The motion is, therefore, granted. Mr. Hall further states in his motion that he has already reported this error to the Committee on Professional Conduct. Nonetheless, as is our practice, a copy of this opinion will be forwarded to the Committee.
Motion granted. | [
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Per Curiam.
On May 8, 2008, we reversed the Washington County Circuit Court’s grant of summary judgment in favor of the Appellee poultry producers and remanded the case for trial as to the poultry producers. See Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008) (“Alpharma I”). We also affirmed the circuit court’s ruling on the issue of expert testimony. Id., 284 S.W.3d 29. Later, Appellants Mary E. Green and Michael B. Green, individually and as parents, next friends, and natural guardians of Michael Green during his minority (collectively “the Greens”) filed a motion for taxation of costs for briefing costs, filing fee, and actual costs for the production of the record on appeal. In Green v. Alpharma, 374 Ark. 67, 285 S.W.3d 665 (2008) (per curiam) (“Alpharma II”), we denied the Greens’ request to recover $500 in briefing costs, but we awarded the Greens the $100 filing fee, as well as one-half the amount of the requested costs for the record.
On June 26, 2008, Appellees Alpharma Inc. and Alpharma Animal Health Company (“Alpharma”), pursuant to Arkansas Supreme Court Rules 4-2(b) and 6-7, filed a motion for the taxation of costs against the Greens. Specifically, Alpharma requests $500 in brief costs, pursuant to Rule 6-7 (a) or (c), and other costs for the Greens’ alleged noncompliance with Rule 4-2 in producing an allegedly deficient Abstract and Addendum. On July 2, 2008, the Greens filed their response and recommended that we deny or dismiss Alpharma’s motion.
Arkansas Supreme Court Rule 6-7 provides for the taxation of costs in favor of a prevailing party on appeal. Subsection (a) states that the “appellee may recover brief costs not to exceed $3.00 per page; total costs not to exceed $500.” Further, subsection (c) states that we “may assess appeal costs according to the merits of the case” when we have affirmed in part and reversed in part. Thus, with regard to Alpharma’s request for brief costs, we grant $500 in briefing costs because we affirmed the circuit court’s ruling in its favor on the issue of expert testimony in Alpharma I.
However, we deny Alpharma’s request for taxation of costs for any alleged deficiency in the Greens’ Abstract and Addendum under Rule 4-2. We made no such finding either in Alpharma I or Alpharma II. For this reason, we decline to award these costs to Alpharma.
Motion affirmed in part; denied in part.
Further, we note that we have jurisdiction over this matter although the mandate in Alpharma I was issued on June 19, 2008. See Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997). | [
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Jim Gunter, Justice.
This appeal arises from an order of the Pulaski County Circuit Court denying a motion to dismiss filed by the Arkansas Department of Environmental Quality (“ADEQ”) and seven ADEQ employees in their official and individual capacities (collectively “Appellants”). We reverse the circuit court’s order and dismiss the case.
On March 17, 2006, Appellees Shawki Al-Madhoun (“AlMadhoun”) and Northstar Engineering Consultants, Inc. (“Northstar”) filed a complaint against the ADEQ. In the complaint, Appellees alleged that the ADEQ violated Al-Madhoun’s equal protection and due process rights, abused the engineering board complaint process to retaliate against Al-Madhoun, and interfered with the contractual relationships of Northstar. On April 6, 2006, the ADEQ moved to dismiss the complaint, asserting that it was immune from suit under article 5, section 20, of the Arkansas Constitution. On June 5, 2006, Appellees filed an amended complaint adding seven employees of the ADEQ, both in their individual and official capacities, as defendants. On June 26, 2006, the ADEQ and the seven employees filed a motion to dismiss the amended complaint based on Ark. R. Civ. P. 8(a)(1), 12(b)(6), article 5, section 20 of the Arkansas Constitution, and Ark. Code Ann. § 19-10-305(a) (Supp. 2001).
A hearing on the motion to dismiss was held on August 25, 2006. The circuit court denied the motion to dismiss on September 18, 2006. The circuit court ruled that sovereign immunity did not apply to the ADEQ because Appellees were requesting only injunctive relief and not asking for monetary damages against a state agency. The circuit court further ruled that qualified immunity did not apply to the individual defendants because there was an exception to qualified immunity for malicious acts and intentional torts under Ark. Code Ann. § 19-10-305. The circuit court also required Appellees to amend their complaint to plead the alleged malicious acts with more specificity, ruling that the first amended complaint failed to put the individually named defendants on notice regarding those acts.
On October 18, 2006, Appellees filed their second amended complaint, asking for the following: a preliminary and permanent injunction against Appellants; an order from the circuit court instructing the ADEQ to correct the public records related to Al-Madhoun, Northstar, and their clients; and actual and special damages from the seven employees in the amount of $300,000, punitive or exemplary damages in the amount of $900,000, and “costs herein expended and such additional relief as the court deems appropriate.” On November 15, 2006, Appellants moved to dismiss the second amended complaint pursuant to Ark. R. Civ. P. 8(a)(1) and 12(b)(6) alleging that constitutional and statutory immunity barred the lawsuit. A hearing on the motion to dismiss was held on February 9, 2007. On February 23, 2007, the circuit court entered an order denying the motion to dismiss with respect to counts one, three, four, five, six, and eight. The circuit court granted the motion to dismiss with respect to counts two and seven and ordered Appellees to amend their complaint for a third time to plead additional facts in support of count three.
On March 1, 2007, Appellees filed their third amended complaint. Appellants filed another motion to dismiss on March 19, 2007, based on Ark. R. Civ. P. 8(a)(1), 12(b)(6), article 5, section 20 of the Arkansas Constitution, and Ark. Code Ann. § 19-10-305(a). On May 16, 2007, the circuit court held a hearing on the motion to dismiss. The circuit court denied the motion to dismiss, and ruled that article 5, section 20 of the Arkansas Constitution did not apply because Appellees were seeking injunctive relief. Appellants now bring this appeal.
For their first point on appeal, Appellants assert that, as a state agency, the ADEQ is immune from this suit pursuant to article 5, section 20 of the Arkansas Constitution. They admit that Ark. Code Ann. § 25-15-214 (Repl. 2002) is a codified exception to the State’s immunity, but contend that the facts pled by Appellees in each of their complaints fail to meet this immunity exception. They further assert that § 25-15-214 does not provide the circuit court with the authority to grant the relief Appellees are seeking from the ADEQ because Appellees are seeking to control or coerce the actions of the ADEQ with this lawsuit. Finally, they argue that § 25-15-214 is not applicable to the ADEQ because it addresses agency rule making and adjudication, asserting that the General Assembly has vested the Arkansas Pollution Control and Ecology Commission (“the Commission”) with the authority to engage in final rule making and to conduct adjudicatory hearings of the ADEQ’s administrative decisions in Ark. Code Ann. § 8-1-203 (Repl. 2007).
In response, Appellees assert that the ADEQ is not entitled to sovereign immunity because their amended complaint clearly states that the ADEQ and one or more of the named employees unlawfully, unreasonably, or capriciously refused to act. They also assert that sovereign immunity does not apply in this case because the relief requested is injunctive relief and will not increase the obligations of the State. Further, they contend that any claim of sovereign immunity has been waived by Ark. Code Ann. § 25-15-214 and that the circuit court is authorized to command the officers of the ADEQ to act.
While normally an appeal may not be taken from an order denying a motion to dismiss, such an appeal may be taken’ under Ark. R. App. P.-Civ. 2(a)(2) (2007) based on the movant’s assertion that he is immune from suit. See Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001); Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Id.
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); King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Clowers, supra; Rothbaum v. Ark. Local Police & Fire Ret. Sys., 346 Ark. 171, 55 S.W.3d 760 (2001); Martin v. Equitable Life Assurance Soc. of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1); Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997).
Article 5, section 20, of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.” Sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. See Landsnpulaski, LLC v. Ark. Dep’t of Corr., 372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); Ark. Tech. Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In determining whether the doctrine of sovereign immunity applies, the court should determine if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. If so, the suit is one against the State and is barred by the doctrine of sovereign immunity. See Landsnpulaski, supra; Grine, supra; Fireman’s Ins. Co. v. Ark. State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990); Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938).
Here, in their original complaint, Appellees requested a judgment against the ADEQ for actual and special damages to compensate the plaintiff for injuries in the amount of $300,000, $900,000 in punitive or exemplary damages, costs expended, and “such additional relief as the court deems appropriate.” In their subsequent amended complaints, Appellees asked for preliminary and permanent injunctions against the ADEQ and the seven employees of ADEQ as well as actual and special damages from the employees, asserting that sovereign immunity did not apply because of § 25-15-214.
Specifically, Appellees asked for injunctions preventing the ADEQ from further violating Al-Madhoun’s equal protection and due process rights and from interfering with contractual relationships. In their second amended complaint, Appellees also asked for an order of the circuit court instructing the ADEQ to correct the public records related to Al-Madhoun, Northstar, and their clients. These requests for injunctive relief made in Appellees’ complaint and the subsequent amended complaints clearly seek to control the actions of the ADEQ. Our well-established case law states that if a judgment will operate to control the action of the State, the suit is one against the State and is barred by the doctrine of sovereign immunity. See Landsnpulaski, supra. Therefore, Appellees’ suit is barred by the sovereign-immunity doctrine unless, as Appellees contend, sovereign immunity has been waived by Ark. Code Ann. § 25-15-214. See Simons, supra (sovereign immunity may be waived where an act of the legislature has created a specific waiver of immunity).
Arkansas Code Annotated § 25-15-214 sets out an exception to the State’s immunity arising under Article 5, § 20 of the Arkansas Constitution, stating:
In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself or herself injured in his or her person, business, or property by the failure, refusal, or delay may bring suit in the circuit court of any county in which he or she resides or does business, or in Pulaski County Circuit Court, for an order commanding the agency to act.
Id. We have held that Ark. Code Ann. § 25-15-214 authorizes the Pulaski County Circuit Court to command agencies failing or refusing to act to the injury of any person or their property to do so where the agency acts unlawfully, unreasonably, or capriciously. See Oliver v. Pulaski County Circuit Court, 340 Ark. 681, 13 S.W.3d 156 (2000).
Appellants assert that § 25-15-214 is not applicable here because it addresses agency rule making and adjudication, that such authority is vested in the Commission under Ark. Code Ann. § 8-1-2Ó3, and that this authority is not governed by the Arkansas Administrative Procedure Act. In Tri-County Solid Waste Dist. v. Arkansas Pollution Control and Ecology Comm’n, 365 Ark. 368, 230 S.W.3d 545 (2006), we held that appeals from the decisions of the Commission are not governed by the procedures established in the Arkansas Administrative Procedure Act. See also Ark. Code Ann. § 25-15-202(2)(C) (Supp. 2007). Rather, specific procedures are provided in §§ 8-4-222 to -229 (Repl. 2007). Id. The ADEQ is required to follow the administrative procedures set forth in the Commission’s Regulation No. 8. Therefore, because specific procedures are provided for in Regulation 8, the Arkansas Administrative Procedure Act does not apply to the ADEQ.
With regard to the injunctive relief sought against the seven ADEQ employees in their official capacities, we have held that a suit against a state official in his or her official capacity is not a suit against that person, but rather is a suit against that official’s office. See Simons, supra. We have further elaborated that official-capacity suits generally represent but another way of pleading an action against the entity of which the officer is an agent. Id. Because we hold that Appellees’ suit against the ADEQ is barred by sovereign immunity, we also hold that the suit against the ADEQ employees in their official capacities is barred.
Next, we turn to Appellants’ assertion that Appellees’ claims against the employees in their individual capacities are barred by Ark. Code Ann. § 19-10-305(a), Ark. R. Civ. P. 8(a)(1), and 12(b)(6). Specifically, they argue that: (1) allegations regarding alleged discriminatory treatment of Appellees’ clients fail to meet the requirements necessary to strip the ADEQ employees of their statutory immunity and (2) certain e-mails released in response to a FOIA request should be read in the context in which they were written and do not constitute malice on behalf of the individual ADEQ employees.
In response, Appellees assert that the employees are not entitled to qualified immunity in their individual capacities. Specifically, they contend that they have alleged sufficient facts as to each individual employee to support the conclusion that each individual acted with malice, and such conduct falls outside the protection of § 19-10-305. Further, they assert that the e-mails described in their amended complaint are examples of malice or at least constitute an inference of malice on behalf of the individuals.
Arkansas Code Annotated § 19-10-305(a) provides:
Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages or acts or omissions, other than malicious acts or omissions, occurring within the scope of their employment.
Id. Despite this grant of statutory immunity, a state officer or employee may still be liable in a personal capacity. See Simons, supra (citing Grine, supra). In that case, this court has stated that suits against officers and employees alleged to be malicious are suits against the officers or employees personally, and they are liable to the extent anyone would be liable under tort law. Simons, supra. Section 19-10-305(a) provides state employees with statutory immunity from civil liability for non-malicious acts occurring witidn the course of their employment. Id. In defining malice, we have stated:
It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another. Malice is also defined as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.... A conscious violation of the law... which operates to the prejudice of another person. A condition of the mind showing a heart. . . fatally bent on mischief.” Black’s Law Dictionary, 956-57 (6th ed. 1990).
Id. (citing Fegans v. Norris, 351 Ark. 200, 207, 89 S.W.3d 919, 924-25 (2002)) (internal citations omitted).
We have held that a bare allegation of willful and wanton conduct will not suffice to prove malice. Id. In addressing the issue of whether an allegation has sufficiently stated a claim for personal liability of a state employee, we have stated:
[I]n considering the complaint on a motion to dismiss, if the acts or omissions complained of are alleged to be malicious and outside the course and scope of employment, then the coffers of the State are not implicated, and the suit is not one against the State. Under these conditions, Article 5, section 20, of the Constitution is not implicated.
Grine, 338 Ark. 791, 799-800, 2 S.W.3d 54, 60. In both Simons and Grine we held that, because the complaints stated only conclusions, with no factual support, the defendants (with the exception of one in Grine) were entitled to statutory immunity under § 19-10-305(a).
In the present case, Appellees assert that the following facts in their amended complaint outline the malicious conduct of the employees:
• Gerald Delavan and Harry Elliott sent malicious e-mails about Appellees to several ADEQ solid waste employees including the named defendants.
• Scott McWilliams sent out a Consent Administrative Order (“CAO”) that not only misrepresented facts and ignored a previous authorization letter, but also was not justified with appropriate sound scientific and engineering literature as required by Arkansas Pollution Control and Ecology Regulation 8.
• Mary Leath and Marcus Devine made statements to EatonMoery Environmental Services, Inc. (“EMS”) that they would have no problems if Appellees were not EMS’s engineers.
• Marcus Devine kept Mr. Al-Madhoun out of a meeting that he and the City of West Helena (“HWH”) specifically requested him to attend.
• Steve Martin made statements in the meeting between the ADEQ and HWH and again to the HWH City Council accusing Mr. Al-Madhoun of theft or conspiracy.
• Steve Martin and Harry Elliot provided incomplete and erroneous information to the Environmental Protection Agency (“EPA”) including an accusation that Mr. Al-Madhoun had a financial interest in the RLH landfill.
• Ryan Benefield prepared a Summary Report on or about November 3, 2004, that contained incomplete and erroneous information contrary to known fact.
• Harry Elliott and Anne Weinstein refused to amend an erroneous Summary Report even after being provided the basis for the requested amendment.
• Mary Leath threatened Mr. Al-Madhoun with retaliation if Mr. Al-Madhoun filed his Board Complaint against Ryan Benefield.
• Ryan Benefield refused to amend his erroneous Summary Report and refused to justify his actions in writing as required by Arkansas Pollution Control and Ecology Regulation 8.
• After Mary Leath’s threat, Marcus Devine filed a Board Complaint against Mr. Al-Madhoun.
• Ryan Benefield refused to approve modifications until the CAO, based on his erroneous Summary Report, was signed.
• Gerald Delavan stated to the Baxter Bulletin newspaper that RLH, Inc. fines were Appellees’ fault.
Appellees’ amended complaint lists six causes of action: an equal-protection claim; an abuse of the engineering board claim; a Freedom of Information Act claim; a gross negligence and malice claim; and two claims of interference with contracts. The list of allegations set out above are conclusory and do not support each cause of action Appellees have pled against each individually named ADEQ employee. Even viewing the allegations in the complaint in a light most favorable to Appellees, the pleadings still amount to bare conclusions of malice.
Appellants also contend that certain e-mails released in response to a FOIA request should be read in the context in which they were written and do not constitute malice on behalf of the individual ADEQ employees. Appellees rely on Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989) for their assertion that the e-mails described in their amended complaint are, at the very least, inferences of malice on behalf of the employees. In Bland, we stated that, under Arkansas law, statements made with actual malice include not only those made with spite, hatred, or vindictiveness, but also those made with such reckless disregard of the rights of another as to constitute the equivalent of ill will. Id.; see also Dun &Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961).
The Bland case is distinguishable from the present case in that the appeal involved a defamation action filed by the appellant. Here, none of Appellees’ complaints plead defamation, libel, or slander. Further, in Bland, we held that the circumstances surrounding the remarks at issue presented a jury question as to whether they inferred malice and reversed an order of summary judgment. Here, we have an appeal of a denial of a motion to dismiss based on statutory immunity. With regard to the e-mails, as stated above, Appellees’ pleadings amount to bare conclusions of malice. Based on the foregoing reasons, we hold that the employees are entitled to statutory immunity as set forth in § 19-lb-305 (a). Accordingly, we reverse the order of the circuit court and dismiss the case.
Reversed and dismissed.
Marcus Devine, Mary Leath, Steve Martin, Ryan Benefield, Harry Elliott, Scott McWilliams, and Gerald Delavan. | [
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Annabelle Clinton Imber, Justice.
Appellant Dennis Ray Allen was convicted by a Lonoke County jury of four counts of rape and four counts of second-degree sexual assault in connection with the alleged abuse of four of his minor step-grandchildren. He was sentenced to life imprisonment in the Arkansas Department of Correction on each of the rape convictions and to twenty years’ imprisonment on each of the sexual-assault convictions, totaling four life sentences plus eighty years. The circuit court accepted the jury’s recommendation that the sentences be served consecutively. Allen now appeals, alleging two points of error: 1) the circuit court erred in refusing to allow him to question one of the State’s witnesses regarding her alleged sexual relationship with her son; and 2) the circuit court erred in allowing testimony over his objections pursuant to Arkansas Rules of Evidence 404(b) and 403, when the alleged prior bad acts occurred many years ago and were not similar in nature to the charged acts, and when the prejudice to Allen far outweighed any probative value. Because Allen was sentenced to terms of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2008). We find no error and affirm.
In August of2003, Allen and his wife had legal guardianship of three female children. Their mother was one of his wife’s daughters from a prior marriage. At that time, the Arkansas State Police Crimes Against Children Division interviewed C.H., A.C., and C.C., who were approximately eleven, nine, and eight years old, respectively, in an effort to determine whether Allen was abusing them. Each of the children denied that they were being abused. Due to the statement of a witness, the children were interviewed again in March of 2004, by both the Crimes Against Children Division and the local police department. They again denied any abuse. In December of 2005, however, K.K., the children’s thirteen-year-old male cousin, reported that he had been abused by Allen. K.K. disclosed to his mother, Allen’s other stepdaughter, that Allen had touched his penis and forced him to perform oral sex on multiple occasions while he was staying at his grandparents’ house. K.K.’s mother notified the local police department and informed her sister of the allegations. C.H., A.C., and C.C., who by that time had returned to their mother’s custody, disclosed that they had been abused as well. Allen was arrested on January 17, 2006, and charged with four counts of rape and four counts of sexual assault in the second degree.
At trial, each of the four children testified that Allen had forced them to touch his penis and to perform oral sex on him. The girls testified that Allen had penetrated them digitally and with toys and markers. C.H., A.C., and K.K. all testified to Allen’s use of dildos; K.K. indicated that Allen had inserted them into K.K.’s anus on approximately three occasions. C.H. and A.C. both testified that Allen had attempted sexual intercourse with them. C.H. and A.C. also testified that Allen forced them to remove their clothing and dance for him and for other adults, took photographs of them naked, and showed them pornography. According to C.H.’s testimony, Allen also forced the girls to “do stuff’ to each other and forced K.K. to perform oral sex on the girls. K.K. testified that Allen tried to force him and A.C. to attempt sexual intercourse, in the presence of another adult. Finally, each of the girls explained that they had not disclosed the abuse earlier because Allen had threatened to kill them if they told anyone. C.C. testified that Allen had shown her his gun. K.K. testified that Allen beat them and that they were therefore afraid to disclose the abuse. The only witness called by the defense was a board-certified urologist who testified to having treated Allen for erectile dysfunction and a painful condition on his penis. The jury returned guilty verdicts on all eight of the charges.
Allen’s first challenge on appeal involves the trial testimony of K.K.’s mother. Upon being called by the State, she testified that she noticed a change in her son’s behavior, including depression and weight gain, prior to his informing her of the abuse. At that point in her testimony, Allen asked, “Is that when you were having sex with him?” Allen’s counsel indicated a desire to question K.K.’s mother about this allegation, in an effort to show that she and her son brought false accusations against Allen in response to Allen’s threat to expose their sexual relationship. The State moved to exclude such testimony as prohibited by the rape-shield statute. Following an off-the-record bench conference, the circuit court granted the State’s motion.
Allen contends that the court’s ruling was in error. Specifically, he claims that evidence of a sexual relationship between K.K. and his mother was relevant to attack their credibility and was not barred by the rape-shield statute, as it was, directly related to the issue of his guilt or innocence. In discussing our standard of review for evidentiary rulings generally, we have said that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Hickman v. State, 372 Ark. 438, 443, 277 S.W.3d 217, 222 (2008). More specifically, with regard to evidence subject to the rape-shield statute, we have said that the circuit court is vested with a great deal of discretion in ruling whether evidence is relevant. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). This court will not reverse the circuit court’s decision as to the admissibility of rape-shield evidence unless its ruling constituted clear error or a manifest abuse of discretion. Id. at 258, 273 S.W.3d at 491.
We are precluded from addressing Allen’s rape-shield argument, as it was not preserved for our review. The rape-shield statute provides that evidence of specific instances of the victim’s prior sexual conduct with any person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim or for any other purpose. Ark. Code Ann. § 16-42-101(b) (Repl. 1999). However, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with any person may be admitted if its relevancy is determined by the court. Id. § 16-42-101(c). To establish such relevancy, the defendant must file a written motion, before resting, stating that the defendant has an offer of relevant evidence prohibited by the statute and describing the purpose for which the evidence is believed relevant. Id. § 16-42-101 (c)(1). The court then holds an in camera hearing on the motion. Id. § 16-42-101 (c)(2)(A). A written record must be made of the hearing. Id. § 16-42-101 (c)(2)(B). If the court determines that “the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature,” the court makes a written order detailing what evidence is admissible and what testimony may be elicited based upon that evidence. Id. § 16-42-101 (c)(2)(C).
Allen failed to follow the procedure set forth in Arkansas Code Annotated section 16-42-101 (c) for establishing relevancy and admissibility of evidence otherwise excluded by the rape-shield statute. The record does not contain a written motion filed by Allen requesting an exception for relevant evidence, nor does it contain a written record of an in camera hearing. The record does indicate that the circuit court held an off-the-record bench conference with counsel after the State moved to prohibit the testimony. However, section 16-42-101(c) is clear: the defendant must file a written motion, and a written record must be made of the in camera hearing on the motion.
We have noted that admissibility of a victim’s prior sexual conduct as an exception under the rape-shield statute must be determined in accordance with the procedures set forth in section 16-42-101 (c). Laughlin v. State, 316 Ark. 489, 497, 872 S.W.2d 848, 853 (1994). “In order to set in motion a relevancy decision by the trial court regarding prior sexual conduct, § 16-42-101 (c)(1) requires that the defendant file a written motion with the court before resting to the effect that the defendant desires to present evidence of the victim’s past sexual activity.” Id., 872 S.W.2d at 853. In Laughlin, where no written motion was filed and no in camera hearing was conducted as required by section 16-42- 101(c), the procedure followed was “defective and insufficient to invoke a relevancy determination under the Rape Shield Statute.” Id. at 497-98, 872 S.W.2d at 853. This court thus rejected the appellant’s relevancy arguments on appeal. Id., 872 S.W.2d at 853. We must similarly reject Allen’s arguments. Because Allen failed to follow the proper procedure in requesting an exception, we affirm the circuit court’s decision.
Allen’s second challenge on appeal involves the testimony of James Sweeny, another prosecution witness. Sweeny testified that he was approximately twelve years old when he met Allen, who was his grandmother’s next-door neighbor. At that time, Allen would have been in his early thirties. The two began a friendship, which Sweeny characterized as a “role model type situation at first.” Sweeny testified that Allen called him “son” and that he called Allen “dad.” He also testified that Allen bought things for him, took him out to eat, and gave him special attention at a time when he needed it, due to his recent discovery that he had been adopted. According to Sweeny’s testimony, Allen talked about “sexual things” with him and started sexually abusing him when he was thirteen years old. The abuse began with Allen touching Sweeny’s leg and groin and progressed to fondling and oral sex. Sweeny testified that the abuse continued until he was nearly eighteen years old. At the time of trial, Sweeny was incarcerated for the sexual abuse of a two-year-old boy. He testified that, based on what he had learned in sex-offender counseling, his offending could be attributed in part to his own victimization and the “grooming” process employed by Allen to lure him.
Sweeny also testified that he had maintained a friendship with Allen in his adult years and that Allen made sexual comments about his step-granddaughters. Sweeny testified that, on one occasion, Allen had C.H. remove her clothes and “strip dance” for them. On another occasion, Allen gave A.C. marijuana and had her perform oral sex on Sweeny, while Sweeny performed oral sex on her. Immediately after that, Allen had A.C. perform oral sex on him, and he later performed oral sex on her. Sweeny also testified that he witnessed Allen force K.K. and A.C. to attempt sexual intercourse. The circuit court permitted Sweeny to testify as a fact witness to what he had observed. In addition, the court eventually overruled Allen’s objections under Arkansas Rules of Evidence 404(b) and 403 and permitted the testimony regarding the alleged prior bad acts.
Allen contends on appeal that the evidence was improper under Rule 404(b) because the alleged abuse of Sweeny was never substantiated or charged, was not similar in nature to the conduct underlying the present charges, was too remote in time to be relevant, and was presented through the testimony of an admitted pedophile. He also claims error under Rule 403, arguing that the sole purpose of the presentation of Sweeny’s testimony was to inflame the jury. The State maintains that the circuit court correctly applied the pedophile exception to Rule 404(b), and that the probative value of the evidence at issue was not substantially outweighed by any danger of unfair prejudice. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse. Echols v. State, 326 Ark. 917, 964, 936 S.W.2d 509, 533 (1996). We review a circuit court’s decision to admit evidence over a Rule 403 objection under an abuse-of-discretion standard as well. Flanery v. State, 362 Ark. 311, 315, 208 S.W.3d 187, 191 (2005).
Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2008). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Lamb v. State, 372 Ark. 277, 283, 275 S.W.3d 144, 149 (2008). In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. Id., 275 S.W.3d at 149.
This court has long recognized a “pedophile exception” to Rule 404(b). Id., 275 S.W.3d at 149. We have approved allowing evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Id. at 283-84, 275 S.W.3d at 149. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id. at 284, 275 S.W.3d at 149. For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006). We also require that there be an “intimate relationship” between the perpetrator and the victim of the prior act. Id. at 652, 232 S.W.3d at 468-69.
Allen contends that the pedophile exception is not applicable here for several reasons. First, he points out that the abuse alleged by James Sweeny was never substantiated and that Allen was never charged for that conduct. Rule 404(b), however, makes no distinction between substantiated and unsubstantiated conduct, or between charged and uncharged conduct. This court has explicitly held that our application of the pedophile exception does not require that the prior act be charged or substantiated. Bell v. State, 371 Ark. 375, 385, 266 S.W.3d 696, 705 (2007).
Second, Allen asserts that the alleged prior bad acts and the conduct underlying the present charges were not sufficiently similar for application of the pedophile exception. Specifically, he notes that Sweeny was not a member of Allen’s family, nor did they reside in the same household at the time of the alleged abuse. This court has specifically rejected a requirement that the alleged victim of a prior bad act be a member of the defendant’s family or household for the evidence to be ruled admissible under the pedophile exception. Parish v. State, 357 Ark. 260, 270, 163 S.W.3d 843, 849 (2004); Berger v. State, 343 Ark. 413, 419-20, 36 S.W.3d 286, 290-91 (2001). Moreover, we hold that the State has successfully established the existence of an “intimate relationship” between Allen and Sweeny. See Thompson v. State, 322 Ark. 586, 589, 910 S.W.2d 694, 697 (1995). As previously noted, Sweeny testified that he viewed Allen as a role model and that they referred to each other as father and son. He also testified that Allen purchased things for him, took him out to eat, and gave him special attention. In addition, C.H. testified that Allen told her that Sweeny was his son. This evidence is sufficient to demonstrate a relationship “close in friendship or acquaintance, familiar, near, or confidential.” Parish v. State, 357 Ark. at 270, 163 S.W.3d at 849.
Third, Allen contends that the alleged prior bad acts were too remote in time to be relevant and admissible under the pedophile exception. He notes that Sweeny was between the ages of thirteen and eighteen when the abuse allegedly occurred, and that at the time of trial Sweeny was thirty years old. This court has allowed testimony regarding alleged prior sexual conduct “even when a significant time gap exists.” Flanery v. State, 362 Ark. at 315, 208 S.W.3d at 190. More specifically, we have permitted evidence of conduct occurring nearly twenty years prior to the charged conduct. Lamb v. State, 372 Ark. at 284-85, 275 S.W.3d at 144. We noted in Lamb that the circuit court is given sound discretion over the matter of remoteness and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the present case. Id. at 284, 275 S.W.3d at 150. We have generally upheld remoteness determinations when the similarities between the alleged prior act and the charged offense tend to show an intent to commit the charged offense. Id. at 284-85, 275 S.W.3d at 150 (citing Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006); Flanery v. State, supra). We hold that Sweeny’s testimony helped to demonstrate Allen’s intent as it relates to the present charges.
Finally, Allen points out that the evidence of the alleged prior bad acts was presented through the testimony of an admitted pedophile. He seems to suggest that a witness such as Sweeny should not have been deemed credible. It is well settled, however, that the credibility of witnesses is an issue for the jury and not the court. Price v. State, 373 Ark. 435, 284 S.W.3d 462 (2008). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. at 438-39, 284 S.W.3d at 465.
We likewise find no merit in Allen’s Rule 403 argument. Rule 403 provides that, “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2008). This court has noted that evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. Morris v. State, 367 Ark. 406, 414, 240 S.W.3d 593, 599 (2006). Therefore, the fact that the evidence would have inflamed the jury is insufficient to exclude it under Rule 403.
In cases involving evidence subject to the pedophile exception, we have looked to the similarities between the alleged prior conduct and the charged conduct to determine whether they make the evidence probative on the issue of the accused’s motive, intent, preparation, plan, and scheme. Id., 240 S.W.3d at 599. When the similarities are significant, we have permitted the evidence, despite the prejudice to the accused. Id., 240 S.W.3d at 599; Flanery v. State, 362 Ark. at 315-16, 208 S.W.3d at 191. We have also noted that the evidence is permissible when the similarities make it probative on the issue of the accused’s deviate sexual impulses. Flanery v. State, 362 Ark. at 316, 208 S.W.3d at 191. In the instant case, Allen is alleged to have fondled Sweeny and his step-grandchildren and to have forced them all to perform oral sex on him. In addition, Sweeny and the step-grandchildren were, to a certain degree, under Allen’s care at the time of the abuse. These similarities are significant and probative on the issue of Allen’s deviate sexual impulses. Accordingly, we cannot say that the probative value of the evidence at issue was substantially outweighed by any danger of unfair prejudice.
Finally, Allen argues that the circuit court erred in allowing Sweeny to testify that Allen was partially to blame for Sweeny’s subsequent sexual abuse of a child. According to Allen, Sweeny’s testimony allowed the jury to convict Allen for Sweeny’s criminal behavior. However, this argument is not preserved for our review, as Allen failed to make this objection below. It is a well-settled principle of appellate law that arguments not raised at trial will not be addressed for the first time on appeal. Tavron v. State, 372 Ark. 229, 231, 273 S.W.3d 501, 502 (2008). An appellant is limited by the scope and nature of the arguments and objections presented at trial and may not change the grounds for objection on appeal. Id. at 233, 273 S.W.3d at 503. Allen never objected to Sweeny’s testimony regarding his subsequent sexual abuse of a child and his belief that Allen was to blame. Accordingly, we are precluded from addressing this argument on appeal.
Pursuant to Rule 4-3 (h) of the Rules of the Supreme Court, the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Allen, and no prejudicial error has been found.
Affirmed.
Glaze, J., not participating. | [
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Per Curiam.
Appellant Jeremy Michael Richie, by and through his attorney, has filed a motion for belated appeal. His attorney, Lynn F. Plemmons, states in the motion that the Notice of Appeal was filed late due to a mistake on his part. The Judgment and Commitment Order entered on March 14, 2008, incorrectly listed Stephen Ralph as Appellant’s attorney. The Judgment and Commitment Order was not forwarded to Mr. Plemmons. Appellant communicated his desire to appeal his revocation to Mr. Plemmons by letter. The letter requesting appeal was mislaid in the attorney’s office. The Notice of Appeal was filed on April 16,2008. A Notice of Appeal is to'be filed within thirty (30) days from the date of entry of a judgment as required by Arkansas Rules of Appellate Procedure-—Rule 2(a)(1).
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 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 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., 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. Plemmons 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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Per Curiam.
Appellee, Tobacco Superstore, Inc. (TSI), has filed a motion to dismiss the appeal filed by Appellant Diane Darrough, contending that Darrough has failed to designate the entire record on appeal and continues to “refuse” to supply this court with any additional portions of the record.
The circuit court dismissed Darrough’s claims against TSI with prejudice by order entered February 15, 2008. On March 13, 2008, Darrough filed a timely notice of appeal in which she designated only certain portions of the record for appeal purposes. On March 20, 2008, TSI filed a “designation of additional record” in which it contended that Darrough’s notice of appeal did not comply with Ark. R. App. P. — Civ. 3(g), in that Darrough failed to disclose her points on appeal; in addition, TSI designated “the entire trial record, including all pleadings, exhibits, and proceedings, to be included in the appellate record.” On March 24, 2008, TSI filed a notice of cross-appeal in which it asserted that, due to Darrough’s notice of appeal and its own designation of additional record, the cross-appeal did not “require designation of any additional record or the ordering of any transcript.”
In response to TSI’s additional designation, Darrough wrote to TSI’s counsel on March 28, 2008, and stated that she would pay for the record that she designated, but TSI would be responsible for payment of any additional portions that it sought to have included. Darrough then filed an amended notice of appeal and designation of the record on April 21, 2008, in which she specified her point on appeal; however, her designation of the record continued to list only portions of the record. Following further correspondence in which TSI “disagreed” with Darrough’s conclusion that she was only responsible for paying for that portion of the record that she had designated, TSI filed an amended designation of additional record on April 28, 2008, in which it again named additional documents to be included and also sought inclusion of the transcript of a hearing held on January 3, 2008.
TSI filed its instant motion to dismiss Darrough’s appeal on May 15, 2008. In its motion, it complains that Darrough continues to refuse to supply or pay for the additional portions of the record that TSI designated. TSI acknowledges that it cross-appealed some of the circuit court’s orders and that “some parts of the record are relevant only to its cross-appeal.” However, it maintains that additional portions of the record are necessary for consideration of Darrough’s direct appeal. For example, it notes that Darrough did not designate TSI’s answers to her original and amended complaint, TSI’s memorandum in support of its motion for judgment on the pleadings, its reply to her response to its motion, or the transcript of the hearing on the motion.
Darrough responds that her sole argument on appeal is whether the circuit court erred in entering, as its order, a precedent prepared by TSI that was not consistent with the court’s ruling. She asserts that the only portions of the record necessary for a consideration of this question are the trial court’s ruling, the order proffered by TSI that was entered by the trial court, her objections to the order, and her motion to vacate or modify the order. In addition, her notice of appeal designated the complaint, the amended complaint, TSI’s motion for judgment on the pleadings or alternatively for summary judgment, and her reply to that motion. She contends that TSI’s requests to have her designate and supply the entire record is nothing more than an attempt to require her to “incur unnecessary and unreasonable expenses in preparing parts of the record that are not relevant to Darrough’s appeal, but are relevant only to its cross-appeal.”
Rule 6 of the Arkansas Rules of Appellate Procedure-Civil governs the record on appeal, providing in relevant part as follows:
(b) Transcript of proceedings. On or before filing the notice of appeal, the appellant shall order from the reporter a transcript of such parts of the proceedings as he has designated in the notice of appeal and make any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c). If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. If the appellant has designated less than the entire record or proceeding, the appellee, if he deems a transcript of other parts of the proceedings to be necessary, shall, within ten (10) days after the filing of the notice of appeal, file and serve upon the appellant (and upon the court reporter if additional testimony is designated) a designation of the additional parts to be included. The appellant shall then direct the reporter to include in the transcript all testimony designated by appellee.
(c) Record to be abbreviated. All matters not essential to the decision of the questions presented by the appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document shall be excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties.
(Emphasis added.)
The Reporter’s Notes to Rule 6(b) comment that the rule “makes no provision for adjustment of costs where the record is supplemented at the request of the appellee. Normally, appellant bears the initial expense and the Arkansas Supreme Court can thereafter make the proper adjustment of costs upon request of one of the parties.” Ark. R. App. P.-Civ. 6 (Reporter’s Notes (as modified by the Court) to Rule 6, ¶ 2). Here, Darrough designated those portions of the record that were relevant to the sole point she intends to raise on appeal. If TSI, as cross-appellant, felt that other portions of the record were necessary to its arguments on cross-appeal, it was incumbent on it to designate those portions and make any financial arrangements required by the court reporter. Rule 3(e) of the Rules of Appellate Procedure states that a notice of appeal or cross-appeal:
shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c).
Ark. R. App. P.-Civ. 3(e). Thus, it was TSI’s own burden to see to it that those portions of the record it felt were necessary to its cross-appeal were included in the record; it was not Darrough’s burden to anticipate TSI’s arguments on cross-appeal and prepare, at her expense, the record that TSI wanted.
TSI’s motion to dismiss is denied. | [
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Per Curiam.
On October 3,2008, the Sharp County Circuit Court set aside the local option election set for November 4, 2008, regarding the manufacture and sale of intoxicating liquors. The circuit court entered further orders including that no votes casts in the local option election on November 4, 2008, be counted. Petitioner and defendant below SAVE ENERGY REAP TAXES has moved for an expedited appeal of the circuit court’s decision in this case. The motion to expedite is granted. We order that the complete record in this case be filed as soon as possible but no later than 3:30 p.m. Friday, October 10, 2008. We further order that all parties file simultaneous opening briefs in the office of the Clerk of the Court no later than 3:30 p.m. Friday, October 10, 2008. Any responsive briefs must be filed in the office of the Clerk of the Court no later than 10:00 a.m. Monday, October 13, 2008. | [
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Per Curiam.
Appellant Erica Roper moves this court for an extension of time to supplement and file the record in this dependency-neglect case. Arkansas Supreme Court Rule 6-9 (g) discusses extensions for completion of the record in dependency-neglect cases:
Only one extension for completion of the record and only one extension per party for submission of the petition shall be granted upon a showing of manifest injustice and only for a period of no more than seven (7) days. If the request is based on the court reporter’s inability to complete the transcript, it must be supported by an affidavit of the reporter specifying why the transcript has not been completed.
In the present case, Roper requests an extension of forty-five days when an extension of no more than seven days is allowed and fails to include the required court reporter affidavit. The motion is denied. | [
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Jim Hannah, Chief Justice.
A Pulaski County jury convicted appellant Billy Joe Kelley, Jr., of the rape of nine-year-old M.W., and he was sentenced as a habitual offender to a term of life imprisonment. On appeal, he contends that the circuit court erred (1) in denying his motion for directed verdict; (2) in allowing the State to introduce into evidence that the victim testified positive for chlamydia, without the testimony of the technician who performed the test; and (3) in refusing to allow him to ask the victim’s mother if she had chlamydia. Because this is a criminal appeal in which a sentence of life imprisonment has been imposed, this court has jurisdiction pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2008). We affirm the circuit court.
Kelley first contends that the circuit court erred in denying his motion for directed verdict on the charge of rape. Specifically, he contends that there was no evidence that penetration occurred, and he asserts that the State provided no evidence that identified him as the person who raped M.W.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence supporting the verdict, to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The statute under which Kelley was convicted is Arkansas Code Annotated section 5-14-103(a) (3) (A) (Supp. 2007), which provides that a person commits rape “if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age.”
M.W. testified at trial that Kelley engaged in sexual contact with her in November and December 2006, while he was living in a house with her, her mother, and three brothers. M.W. testified that, during that time, Kelley touched her vagina with his penis. M W. stated that when Kelley touched her vagina with his penis, it was on “the inside.” M.W. related that some of the incidents occurred in the morning and others occurred during the evening while her mother was at work and her brothers were not home. M.W. stated that it “hurted” when Kelley did this to her, and that she eventually told her neighbor, Phyllis Gordon, about what had been happening because she was “tired of it” and wanted it to stop. MW. also testified that after the incidents occurred, she noticed a burning sensation when she went to the bathroom. M.W. stated that sometimes her stomach hurt “after he did it.”
Dr. Maria Esquivel examined M.W. at Arkansas Children’s Hospital on January 22, 2007. Dr. Esquivel testified that M.W., who was born on August 10, 1997, was about nine years old at the time of the examination. She stated that MW. had a very thin hymen, and that based on this finding, she suspected that there may have been penetration into the vagina. Dr. Esquivel stated that she did not find any acute, or fresh, injuries, but she explained that any injuries inflicted in November and December would have had time to heal. She also tested M.W. for sexually transmitted diseases and learned that a swab from M.W.’s rectum tested positive for chlamydia. Dr. Esquivel testified that chlamydia is spread either “by active intercourse or by very close genital to genital contact.” She stated that many women who have chlamydia may be asymptomatic but that some women experience burning upon urination.
Kelley contends that there is insufficient evidence to sustain a conviction for rape because M.W. provided contradictory testimony, with respect to when the incidents occurred and where in the house the incidents occurred. He states that the testimony of M.W.’s mother and brothers contradicted M.W.’s testimony as to when and where the incidents occurred. Generally, the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). This is particularly true with sexual crimes against children. See id. Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Id. Moreover, the duty of resolving conflicting testimony and determining the credibility of witnesses is left to the discretion of the jury. Hayes v. State, 374 Ark. 384, 288 S.W.3d 204 (2008). Here, it was for the jury to resolve any inconsistencies in testimony with respect to when and where the incidents occurred.
Kelley also contends that the State’s medical evidence contradicts M.W.’s testimony that he put his penis inside her vagina. He states that the only physical evidence that M.W. had sexual contact with another person was that a swab from her rectum tested positive for chlamydia.
A rape victim’s testimony may constitute substantial evidence to sustain a conviction for rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim’s testimony need not be corroborated, nor is scientific evidence required. Id. More particularly, this court has stated that the testimony of the victim which shows penetration is enough for conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Under the facts of this case, M.W.’s testimony constitutes substantial evidence that Kelley penetrated M.W.’s vagina with his penis. Moreover, Dr. Esquivel’s testimony established that M.W. was nine years old at the time the incidents occurred, and her testimony regarding the appearance of M.W.’s hymen was suggestive of a sexual assault. Finally, any inconsistencies in the testimony of witnesses is a matter for the jury to resolve. We hold that the circuit court did not err in denying Kelley’s motion for directed verdict as there was sufficient evidence to sustain a conviction for rape.
Prior to trial, Kelley stated that he would object to evidence that M.W. tested positive for chlamydia unless the laboratory technician who performed the test testified at trial. Kelley’s objection was based upon “rules of evidence,” chain-of-custody grounds, and the confrontation clause. The State indicated it would introduce the evidence through the testimony of Dr. Esquivel, who examined M.W., but did not perform the lab work for the chlamydia test. Prior to trial, the circuit court ruled that, while the lab report showing M.W.’s positive test for chlamydia was hearsay, Dr. Esquivel reasonably relied upon it in forming her opinion that M.W. had chlamydia. Accordingly, pursuant to Arkansas Rule of Evidence 703, the circuit court denied Kelley’s motion to exclude evidence about the disease. The record reflects that the circuit court did not address Kelley’s confrontation-clause or chain-of-custody claims.
The circuit court has wide discretion in making evidentiary rulings, and we will not reverse its ruling on the admissibility of evidence absent an abuse of discretion. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). The failure to obtain a ruling on an issue at the trial court level, including a constitutional one, precludes review on appeal. Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998). Because Kelley failed to obtain rulings on his confrontation-clause and chain-of-custody arguments, we will not consider those arguments on appeal.
We now turn to Kelley’s arguments that are preserved for appeal. At trial, Dr. Esquivel testified that cultures were taken from M.W. and sent to the lab. She testified that the lab later notified her clinic that M W.’s rectal culture had tested positive for chlamydia. Dr. Esquivel stated that she treated M.W. for chlamydia with an antibiotic.
Kelley claims that the circuit court erred when it allowed Dr. Esquivel to testify that M.W. tested positive for chlamydia because her testimony was hearsay. In support of his argument, Kelley cites Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982), where the court of appeals held that, pursuant to Arkansas Rule of Evidence 803(8), a drug-laboratory supervisor’s testimony was inadmissible hearsay because he was not present when the substance was delivered to the lab, and he had no personal knowledge of the receipt or testing of the substance. The court of appeals reversed and remanded in Llewellyn, and Kelley asserts that, based upon that holding, the instant case should be reversed. We disagree.
In Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997), the State called a doctor to testify about, and give an opinion regarding, DNA testing performed by another doctor. Goff relied on Llewellyn and contended that the DNA testimony at his trial was inadmissible under Rule 803(8) because it was not from the doctor who performed the test. This court noted factual distinctions between the two cases and went on to add that Llewellyn did not address Arkansas Rule ofEvidence 703. With respect to Rule 703, we stated:
[A]n expert can render an opinion based on facts and data otherwise inadmissible, including hearsay, as long as they are of a type reasonably relied upon by experts in the field. Eisenberg was qualified without objection as an expert in the field of DNA testing, and she testified that it was “quite common” for DNA experts to examine case files and protocols and decide whether the DNA testing in a particular case is accurate. She said that she did so in this case. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). In addition, when an expert’s testimony is based on hearsay, this court has held that the lack of personal knowledge on the part of the expert does not mandate the exclusion of the testimony, but instead it presents a jury question as to the weight of the testimony. See id.; Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994).
Goff, 329 Ark. at 521, 953 S.W.2d at 42-43.
The State contends that, in this case, even though Dr. Esquivel did not testify that she normally relies on tests performed by the laboratory, it is axiomatic that physicians routinely rely on the results of tests and others to diagnose and treat many injuries. We agree. Dr. Esquivel’s testimony regarding M.W.’s chlamydia diagnosis was based upon a lab report containing data reasonably relied upon by physicians when diagnosing and treating patients. This court does not reverse the circuit court’s ruling on a hearsay question absent an abuse of discretion. Goff, supra. We find no abuse of discretion.
Before leaving this point, we note that Kelley also asserts that he was denied his right to confront the witness who performed the test in violation of Arkansas Code Annotated section 12-12-313(b) (Repl. 2003). Although Kelley provided notice to the State that he intended to preserve all rights under Arkansas Code Annotated section 12-12-313(b), he did not make this argument to the circuit court and, consequently, he received no ruling on the issue. Accordingly, we will not consider this argument on appeal.
For his final point on appeal, Kelley contends that the circuit court abused its discretion when it refused to allow Kelley to ask M.W.’s mother, Kimberly Britt, if she had tested positive for chlamydia. A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Martin, supra. Britt testified that she and Kelley had engaged in sexual intercourse two or three times per week, without the use of condoms, around the time the incidents with M.W. occurred, and the record reveals that Britt tested negative for chlamydia. Kelley contended below, as he does on appeal, that Britt’s negative chlamydia test was relevant evidence, reasoning that ifBritt did not contract chlamydia from him, M.W. likely did not contract chlamydia from him. Thus, Kelley suggests that Britt’s negative test points to another perpetrator of M.W.
Kelley contends that a material issue in this case was whether M.W. contracted chlamydia from having sexual intercourse with him. He is mistaken. The issue in this case was whether Kelley had sexual intercourse with a person under fourteen years of age, or more specifically, whether Kelley penetrated the vagina of M.W. As the State points out, it is not required that the victim contract a sexually transmitted disease in order for the State to prove that rape occurred. Moreover, the jury never heard that Kelley did not have chlamydia or that he refused to be tested for it. Therefore, the question of whether Britt had a positive diagnosis for chlamydia had no relevance to any issue at trial. In addition, even assuming M.W. did contract chlamydia through sexual contact with another person, it does not foreclose a finding that she was raped by Kelley. See, e.g., Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002) (stating that evidence of sex with another man was not relevant because, unfortunately, the minor victim’s having sex with one older man did not prevent her from having sex with a second older man at the same time). The circuit court disallowed evidence that was collateral to the issue of whether Kelley penetrated the vagina of M.W. We hold that the circuit court did not abuse its discretion in refusing to allow Kelley to ask M.W.’s mother, Kimberly Britt, if she had tested positive for chlamydia.
4-3 (h) Review
The record in this case has been reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4-3 (h) (2008), and none has been found.
Affirmed. | [
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Jim Hannah, Chief Justice.
Appellant Harvie Anglin appeals the order of the Johnson County Circuit Court granting summary judgment in favor of appellee Johnson Regional Medical Center (JRMC). On appeal, he asserts that the circuit court erred in determining that JRMC was entitled to charitable immunity and in determining that it was not necessary to address the issue of governmental immunity. Mr. Anglin also contends that the circuit court erred in concluding that his amended complaint could not relate back to the date of the original complaint pursuant to Rule 15(c) of the Arkansas Rules of Civil Procedure. Finally, Mr. Anglin contends that the circuit court erred in declaring that Rule 56 of the Arkansas Rules of Civil Procedure is constitutional. We affirm the circuit court.
Harvie and Margie Anglin filed a lawsuit on February 6, 2003, as husband and wife, against JRMC and AIG Insurance Company (AIG), based upon allegations of medical injuries sustained by Mrs. Anglin as a result of the alleged negligence of JRMC that occurred on January 24, 2003. Mrs. Anglin later died, and Mr. Anglin filed a motion to revive the original action after being appointed special administrator of his wife’s estate. On April 14, 2003, the circuit court ordered the substitution of Mr. Anglin as the party of interest and granted the motion for revival. Mr. Anglin then pursued a wrongful death claim on behalf of his deceased wife. On April 22, 2003, Mr. Anglin nonsuited AIG, and an order dismissing AIG without prejudice was entered.
On December 5, 2003, Mr. Anglin filed a First Amended Complaint against JRMC and TIG Insurance Company (TIG). Mr. Anglin voluntarily nonsuited the action, dismissing it without prejudice, on August 1, 2005. On August 1, 2006, Mr. Anglin filed a complaint based on the same allegations, but he named only JRMC as a defendant.
On November 19, 2007, JRMC filed a motion for summary judgment, contending that JRMC was entitled to both governmental and charitable immunity. In addition, JRMC asserted that Mr. Anglin’s complaint, filed on August 1, 2006, in accordance with the savings statute, was a nullity because he failed to name the proper defendant, TIG, JRMC’s liability insurer.
Mr. Anglin responded to the motion for summary judgment and asserted that Rule 56 was unconstitutional and that JRMC was not entitled to either governmental or charitable immunity. After a hearing on the motion, the circuit court entered an order granting JRMC’s motion for summary judgment and dismissing with prejudice Mr. Anglin’s complaint against JRMC. The circuit court concluded that JRMC was entitled to charitable immunity and that because Mr. Anglin did not sue the liability insurer directly, his complaint was a nullity. Further, the circuit court determined that Rule 56 was constitutional. Mr. Anglin now brings this appeal.
Mr. Anglin asserts that the circuit court erred in granting summary judgment on the basis that JRJVIC was entitled to charitable immunity. The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 93 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.
“The essence of the [charitable-immunity] 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.” George v. Jefferson Hosp. Ass’n, 337 Ark. 206, 211, 987 S.W.2d 710, 712 (1999) (citing Crossett Health Ctr. v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953)). The doctrine favors charities and results in a limitation of potentially responsible persons whom an injured party may sue. Id. Therefore, we give the doctrine a very narrow construction. Id. (citing Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969)). To deter mine whether an organization is entitled to charitable immunity, courts consider the following factors:
(1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
Id. at 212, 987 S.W.2d at 713. These factors are illustrative, not exhaustive, and no single factor is dispositive of charitable status. Id.
In support of its motion for summary judgment, JRMC presented the affidavit of its administrator, Larry Morse. Mr. Morse stated that JRMC treats patients and provides medical services free of charge, without regard for the patients’ ability to pay. He also stated that JRMC’s charter limits it to charitable purposes and establishes it as a not-for-profit entity. Mr. Morse further explained that JRMC is exempt from the payments of federal and state income taxes because it is a 501(c)(3) corporation existing, organized, and operated for charitable purposes. Mr. Morse also stated that JRMC derives its funds primarily from Medicare, Medicaid, and individual patients or their private insurers.
Mr. Morse stated that, as of September 30, 2007, JRMC had provided approximately $849,043 in free medical services for the year. He also stated that JRMC currently experiences an operating margin of (9.78%), indicating a loss from operations.
Along with Mr. Morse’s affidavit, JRMC submitted its articles of incorporation, which state that JRMC shall provide health services on a charitable basis and not for profit, but that nothing shall be deemed to require JRMC to furnish services without charge to those able to pay the charges either directly or through third parties. In addition, the articles of incorporation state that no part of the net earnings of JRMC shall inure to the benefit of or be distributable to its members, trustees, officers, or other private persons, except that JRMC shall be authorized and empowered to pay reasonable compensation for services rendered.
In response to JRMC’s pleadings accompanying the motion for summary judgment, Mr. Anglin presented the deposition of Mr. Morse. Citing Mr. Morse’s deposition, Mr. Anglin claims that JRMC is not entitled to charitable immunity because it is not maintained exclusively for charity. He states that JRMC is a “big business,” and that, while the hospital did not make a profit in 2006, it made profits in excess of $1 million in years prior to 2006. Mr. Anglin also asserts that JRMC is not a charity because it sues patients to collect unpaid hospital bills. Finally, Mr. Anglin contends that, by virtue of the fact that JRMC carries liability insurance, it is a business and not a charity.
Of the eight factors listed in George, three are clearly established based upon evidence in the record. Those are: (1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; and (7) whether the organization provides its services free of charge to those unable to pay. The first and second are demonstrated byJRMC’s articles of incorporation, which state that the hospital provides health services on a charitable, not-for-profit basis. The seventh factor is established by Mr. Morse’s affidavit, wherein he stated that the hospital provides health services free of charge to those who cannot pay. As noted, in the first nine months of2007, JRMC provided $849,043 in free medical services.
As to the fourth factor, whether the organization earned a profit, the record shows that in some years, JRMC did earn a profit, and in others, it did not. Mr. Morse’s affidavit established that JRMC is currently operating at a loss. JRMC satisfies the fifth factor, whether any profit or surplus must be used for charitable or eleemosynary purposes, because Mr. Morse stated any surplus shall be used to fund the hospital to fully perpetuate its charitable community benefit of providing medical assistance to the public.
As for the third factor, whether the hospital’s goal is to break even, it appears from the record that JRMC’s goal is to not operate at a loss and to use any surplus to fund improvements for the hospital. As for the sixth factor, whether the organization depends on contributions and donations for its existence, it does not appear that JRMC depends on these types of funding for its existence, as the hospital services are paid for by insurance companies, whether governmental or private. As for the eighth factor, whether the directors and officers receive compensation, the articles of incorporation state that the directors and officers can receive reasonable compensation, but that they shall receive no part of the net earnings.
The circuit court found that Mr. Anglin’s response to JRMC’s motion for summary judgment did not refute JRMC’s overwhelming evidence supporting its contention that JRMC meets the standard governing charitable immunity under Arkansas law. We agree.
Mr. Anglin appears to suggest that JRMC is not a charity hospital because it has in some years earned a profit. Indeed, it is evident that JRMC anticipated that it might make a profit, as demonstrated by Mr. Morse’s statement that the hospital intended to use any surplus to perpetuate its purpose of providing healthcare for the benefit of the community. In George, we explained:
[TJrying to break even is only one factor and certainly not a dispositive one when applied to a hospital. Modem hospitals are complex and expensive, technological, economic and medical enterprises that can ill afford to come short of even in their financial integrity. Running a small surplus should not be seen as totally incompatible with charitable status in such cases.... The existence of profit is not determinative of charitable status.
337 Ark. at 213, 987 S.W.2d at 713.
Further, the fact that JRMC sued patients to collect unpaid medical bills is not determinative of its charitable status. Mr. Anglin failed to show that in filing suit to collect unpaid bills, JRMC was attempting to collect from patients unable to pay. This leaves only the evidence from JRMC that suit is instituted only against those able to pay but who refuse to do so. Based upon a review of the totality of the relevant facts and circumstances, we hold that the circuit court did not err in concluding that JRMC meets the requirements of a charitable entity for purposes of asserting the defense of the charitable-immunity doctrine. Because we affirm the circuit court’s determination that JRMC is charitably immune from suit, we need not address Mr. Anglin’s argument regarding governmental immunity.
Mr. Anglin asserts that even if JRMC is immune from tort liability, he may still sue JRMC’s liability insurer. He contends that the circuit court erred in concluding that his first amended complaint, which named TIG Insurance Company as a defendant, could not relate back to the date of the original complaint. The record reveals that Mr. Anglin filed his complaint against JRMC on August 1, 2006, exactly one year after he had nonsuited his first amended complaint, which he had filed on December 5, 2003. At the time Mr. Anglin refiled suit, on August 1, 2006, Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), was the law regarding the issue of charitable immunity, and the Low decision specifically required Mr. Anglin to file a direct cause of action against the insurer of an institution entitled to charitable immunity. Nevertheless, Mr. Anglin did not name the liability insurance carrier of JRMC in his complaint filed August 1, 2006, despite the fact that the Low decision was delivered on December 15, 2005, prior to the expiration ofMr. Anglin’s savings limitations period, which ran on August 1, 2006. In other words, Mr. Anglin had more than eight months in which to refile his claim against the liability insurance carrier, TIG, in accord with the law as stated in Low.
We have previously rejected an appellant’s argument that we apply our decision in Low prospectively in a case where the appellant had more than two months in which to refile a claim against a charitable defendant’s insurance company in accordance with the law in Low. See Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008). Mr. Anglin acknowledges the Felton decision; however, he claims his case is distinguishable from Felton, because in his case, the one-year savings statute expired before this court decided Low. Mr. Anglin is mistaken. As noted above, the one-year savings statute expired on August 1, 2006, some eight months after our decision in Low.
Mr. Anglin’s first amended complaint, filed on December 18, 2007, in an attempt to name the hospital’s liability insurance carrier as a defendant, is time-barred, and despite his suggestion to the contrary, the relation-back doctrine is inapplicable. Pursuant to our holding in Low, Mr. Anglin was required to file a direct cause of action against the insurer of an institution entitled to charitable immunity. The complaint filed on August 1, 2006, the day the savings statute expired, failed to include the insurer. Therefore, that complaint was a nullity. Where the complaint is a nullity, the relation-back doctrine is inapplicable because there is no pleading to amend and nothing to relate back. See Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). Accordingly, the circuit court did not err in concluding that the relation-back doctrine was inapplicable.
Finally, Mr. Anglin contends that Arkansas Rule of Civil Procedure 56 is unconstitutional because it denies him his right of trial by jury as guaranteed by the Arkansas Constitution. In this case, the circuit court determined that JRMC was entitled to summary judgment as matter of law because it was immune from suit due to its charitable immunity. Mr. Anglin asserts that Rule 56 “encroaches on the right to trial by jury because it requires a party to demonstrate that there are genuine issues of material fact, or the case will be decided by the trial judge without a jury trial.” He states that nothing in the Arkansas Constitution states that the right to a trial by jury extends only to those cases in which there are factual disputes. Further, Mr. Anglin contends that the issue of whether a hospital is entitled to a defense of governmental or charitable immunity is a question of fact for the jury to decide. Accordingly, Mr. Anglin asserts that the circuit court’s final judgment granting JRMC’s motion for summary judgment pursuant to Rule 56 was unconstitutional because he was not afforded the right to have these fact questions heard by a jury. Article 2, section 7 of the Arkansas Constitution provides in relevant part:
The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.
The right to a jury trial under this provision is a fundamental right. Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005); Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). This right extends to all cases that were triable at common law. Craven, supra; Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). That is, the constitutional right to trial by jury extends only to the trial of issues of fact in civil and criminal causes. Craven, supra; Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Thus, where there is no factual dispute, there is no constitutional right to a trial by jury.
Mr. Anglin maintains that the question of whether JRMC is entitled to charitable immunity is a question of material fact that entitles him to a jury trial. In support of this argument, he cites Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953). Croswell is distinguishable from the instant case because there were disputed facts concerning whether the hospital was a charity. In that case, there was evidence that the hospital had been given land, funds, and furnishings by a lumber company that had an interest in the hospital. Moreover, the articles of incorporation provided that, upon liquidation of the hospital, the assets could be distributed by the board of governors in any manner consistent with state laws. Here, Mr. Anglin claims that because JRMC earned a profit in some years and because JRMC sues to collect unpaid medical bills, he has the right to present to the jury the question of whether JRMC is a charity that is immune from suit.
Where there are disputed facts concerning an organization’s charitable status, those facts should be presented to the jury. See Croswell, supra. On the other hand, where there are no. disputed facts regarding a defendant’s charitable status, the determination of charitable status is a question of law for the court. In George, the appellant argued that there were factual issues with respect to the fourth, fifth, and eighth factors — whether the organization earned a profit, whether any profit or surplus must be used for charitable or eleemosynary purposes, and whether the directors and officers receive compensation. We disagreed, stating:
As to the fourth, fifth, and eighth, appellant contends that these are all questions of fact and must therefore be tried rather than resolved on summary judgment. We disagree. While there may be fact issues involved, they are not matters of disputed fact. Rather, they are differing legal interpretations of undisputed facts. In such cases, an appellate court should grant summary judgment where reasonable persons would not reach different conclusions based upon those undisputed facts. Leigh Winham, Inc. v. Reynolds Ins. Agency, 219 Ark. 317, 651 S.W.2d 74 (1983). When each of the remaining Masterson[ ] factors are analyzed with the relevant undisputed facts, JRMC’s charitable status is established.
George, 337 Ark. at 212-13, 987 S.W.2d at 713.
Here, the issues regarding JRMC’s profit and its practice of filing suit to collect unpaid medical bills are not matters of disputed fact, but rather they are differing legal interpretations of undisputed facts. See George, supra. There are no disputed facts, as was the case in Croswell. Therefore, in this case, because no disputed facts existed, the circuit court correctly determined, as a matter of law, that JRMC was a charity entitled to immunity. Because there were no genuine issues of material fact, the circuit court did not err in granting summary judgment. We hold that, because a person is entitled to a jury trial only in the event that there are factual issues, and none exist in this case, Mr. Anglin was not unconstitutionally denied his right to a jury trial.
Affirmed.
Brown, J., dissents.
While the order of dismissal does not specifically mention TIG, the order dismissed the entire action without prejudice, and there is nothing in the record indicating that TIG was dismissed prior to August 1,2005.
Mr. Anglin filed a first amended complaint naming TIG as a defendant on December 18,2007.
The December 5,2003 complaint named both JRMC and TIG as defendants.
In Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), the court adopted the eight-factor test to determine whether an organization is entitled to charitable immunity. | [
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Per Curiam.
Denny Hyslip and Julie C. Tolleson, full-time, state-salaried public defenders for the Fourth Judicial District, were appointed by the trial court to represent appellant, Gregory Christopher Decay. Following a jury trial, Decay was convicted of two counts of capital murder and sentenced to death as to both counts. A notice of appeal was timely filed and a request for the transcribed record was filed in this case.
Mr. Hyslip and Ms. Tolleson now ask to be relieved as counsel for appellant in this criminal appeal based on the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), where we held that full-time, state salaried public defenders were ineligible for compensation for their work on appeal. Since Rushing, the General Assembly passed Arkansas Code Annotated § 19-4-1604(b)(2)(B) (Supp. 2007), which states:
A person employed as full-time public defender who is not provided a state-funded secretary may also seek compensation for appellate work from the Arkansas Supreme Court or the Court of Appeals.
Mr. Hyslip and Ms. Tolleson’s motion states that they are provided with a full-time, state-funded secretary. Accordingly, we grant their motion to withdraw as attorneys. Mr. Dale Adams will be substituted as attorney for appellant in this matter. The clerk will establish a new briefing schedule. | [
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Per Curiam.
Appellant Ryan Whiteside appeals from the circuit court’s order granting summary judgment to appel-lees Russellville Newspapers, Inc.; Paxton Media Group, LLC; Neal Ronquist; Scott Perkins; and Janie Ginoccio. Mr. Whiteside further appeals from the circuit court’s order denying his motion for new trial. Because Mr. Whiteside submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides, in pertinent part:
Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.
Ark. Sup. Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup. Ct. R. 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup. Ct. R. 4-2(b)(3).
Here, Mr. Whiteside’s brief is deficient due to the fact that his addendum lacks relevant pleadings essential to an understanding of the case. While the appellees abstracted the hearing on the motion for summary judgment and provided their motion for summary judgment in their supplemental addendum, Mr. White-side’s addendum lacks certain pleadings, including, but not limited to, the appellees’ answer to his complaint, their brief in support of their motion for summary judgment, his response to their motion and brief in support, their reply to his response, and his response to their reply to his initial response.
Because Mr. Whiteside has failed to comply with our rules, we order him to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. If Mr. Whiteside fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, the appellees shall have an opportunity to revise or supplement their brief in the time prescribed by the clerk.
Rebriefing ordered.
We note that it was Mr. Whiteside’s responsibility, as the appellant, to abstract the summary-judgment hearing. See Ark. Sup. Ct. R. 4-2(a)(5). While the appellees did provide a supplemental abstract, we offer no opinion on the sufficiency of that abstract. | [
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Per Curiam.
Petitioner, Michael J. Bray, has filed a motion for rule on clerk. Based on the petition, however, it appears that petitioner is seeking a writ of certiorari to complete the record pursuant to Rule 3-5 of the Rules of the Supreme Court. But, in his partial record, filed November 21, 2008, petitioner has failed to include any documentation indicating that the transcript was ever ordered from the court reporter, nor has he included any notice of appeal, which is necessary to confer jurisdiction on this court. We therefore have no basis on which to issue the writ. See Ark. Sup. Ct. R. 3-5.
Motion denied. | [
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Per Curiam.
Appellant Victor Rasmussen, by and through his attorney, Justin B. Hurst, has filed a motion for rule on clerk. On March 21, 2008, a jury found Appellant Victor Rasmussen guilty of sexual assault in the first degree for which he was sentenced to 180 months, and sexual assault in the fourth degree, for which he was sentenced to 72 months. The judgment was entered on March 24, 2008. Appellant timely filed a notice of appeal on April 14, 2008. Pursuant to Ark. R. App. P.-Civ. 5(a), which is applicable pursuant to Ark. R. App. P.-Crim. 4(a), the deadline for filing the record on appeal was July 13, 2008.
Appellant timely filed a motion to extend the time within which to file the record in this court, on June 11, 2008, requesting an additional ninety (90) days. However, the order granting his motion was never filed with the circuit court clerk’s office and did not comply with Rule 5(b)(1)(C) of the Rules of Appellate Procedure-Civil in that it failed to show that all parties had an opportunity to be heard on the motion. Although the Appellant timely filed his motion for extension of time to file the record, the order granting his motion was never filed making the Appellant’s tender of the record on October 10, 2008, untimely.
Rasmussen moves this court to accept a belated appeal. Despite Appellant’s failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow the appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam). In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), we clarified our treatment of motions for rule on clerk and motions for belated appeals:
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. at 116, 146 S.W.3d at 891. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a. copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from Appellant’s motion that there was error on Mr. Hurst’s part. Mr. Hurst has also assumed responsibility for the error. Pursuant to McDonald v. State, supra, we grant Appellant’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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Jim Hannah, Chief Justice.
This case involves three questions of law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with Arkansas Supreme Court Rule 6-8 (2008) and accepted by this court on September 18, 2008. See Larry Hobbs Farm Equip., Inc. v. CNH Am., LLC, 374 Ark. 268, 287 S.W.3d 550 (2008) (per curiam). The questions certified are the following:
1.Under the facts of this case, whether the market withdrawal of a product or of a trademark and trade name for the product constitutes “good cause” to terminate a franchise under Arkansas Code Annotated § 4-72-204(a)(l).
2.Under the facts of this case, whether liability under Arkansas Code Annotated § 4-72-310(b)(4) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
3.Under the facts of this case, whether the sole remedies for a violation of the Arkansas Farm Equipment Retailer Franchise Protection Act (AFERFPA) are: (1) the requirement that the manufacturer repurchase inventory for a termination without good cause, and (2) damages, costs, and attorneys’ fees that result from the failure to purchase inventory as provided in Ark. Code Ann. § 4-72-309, or whether other remedies are also available.
As to the first question, we conclude that the answer is no. As to the second question, we also conclude that the answer is no. With respect to the third question, we conclude that other remedies are available.
The certified questions arise from an action filed in district court on April 17, 2008, by Hobbs Farm Equipment (Hobbs) after the termination of a dealer agreement between Hobbs and CNH America (CNH). CNH moved to dismiss the complaint, and the district court granted the motion to dismiss on all claims except the claims pertaining to the legal issues certified to this court. For purposes of CNH’s motion to dismiss and the district court’s certification order, the district court assumed the following facts to be true.
Hobbs and DMI, Inc., entered into an agreement enabling Hobbs to sell DMI products in June 1993. In early 1995, Hobbs executed a new dealer agreement with DMI, which enabled Hobbs to be a nonexclusive dealer of DMI products, specifically its tillage and soil management equipment, in its trade area.
In November 1998, Case Corporation, a predecessor of CNH, acquired DMI. Both Hobbs and each of DMI’s successors, including CNH, continued to perform under the 1995 agreement until August 2007.
According to the complaint, in late 2004 or 2005, CNH began to supply Hobbs’s competitor, Heartland Equipment, Inc., of East Arkansas (Heartland), with the DMI tillage and soil management equipment that Hobbs Farm Equipment had distributed since 1993. However, instead of bearing the DMI trademark and trade name, the equipment supplied to Heartland bore the Case IH trademark and name. Case IH is a trademark owned by and the name of a division of CNH. The equipment supplied to Heartland was painted red like other Case IH products, whereas DMI products were painted blue. Stated differently, CNH engaged in dual branding of identical tillage and soil management equipment originally distributed in blue paint under the DMI brand name but, beginning in 2004 or 2005, also distributed in red paint under the Case IH brand name.
On August 14, 2007, Hobbs received a letter from CNH that included the following:
CNH America LLC (“The Company”) wishes to provide you with advance notice of its decision to withdraw from the DMI-branded tillage business effective in 2008. As a result, Hobbs Farm Equipment Co. Inc.’s last ordering period for wholegoods will mn through August 31, 2007. After that date, the Company will no longer accept orders for any DMI-branded tillage wholegoods products. However, Hobbs Farm Equipment Co. Inc. will be able to continue to purchase DMI-branded replacement parts through August 31, 2008.
The Company will continue to provide you with retail programs throughout 2007 and the first half of 2008 to assist you in retailing [sic] these products prior to August 31, 2008. If any DMI-branded wholegoods remain at your dealership by that date, the Company will repurchase those products in accordance with the terms of your dealer agreement and company policy, or state law. The Company will also repurchase your remaining DMI replacement parts according to state law or company policy.
CNH decided that effective August 31, 2008, it would no longer sell equipment bearing the DMI trademark and trade name but would do so under the Case IH trademark and trade name.
Good Cause
In its brief before us, Hobbs contends that, under the plain language of the Arkansas Franchise Practices Act (AFPA), specifically, Arkansas Code Annotated section 4-72-204(a)(l) (Repl. 2001), neither the market withdrawal of a product nor the withdrawal of a trademark or trade name for a product constitutes “good cause” to terminate a franchise. For its part, CNH contends that the AFPA’s requirement of “good cause” for terminating an Arkansas franchise does not prevent market withdrawal. CNH states that, while the AFPA prohibits discriminatory termination of a franchise, the Act does not prohibit nationwide discontinuation of a product line or brand.
The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (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.
Arkansas Code Annotated section 4-72-204(a)(l) provides that “[i]t shall be a violation of [the AFPA] to terminate or cancel a franchise without good cause.” Pursuant to Arkansas Code Annotated section 4-72-202(7) (Repl. 2001), “good cause” is defined in the AFPA as:
(A) Failure by a franchisee to comply substantially with the requirements imposed upon him or her by the franchisor, or sought to be imposed by the franchisor, which requirements are not discriminatory as compared with the requirements imposed on other similarly situated franchisees, either by their terms or in the manner of their enforcement; or
(B) The failure by the franchisee to act in good faith and in a commercially reasonable manner in carrying out the terms of the franchise; or
(C) Voluntary abandonment of the franchise; or
(D) Conviction of the franchisee in a court of competent jurisdiction of an offense, punishable by a term of imprisonment in excess of one (1) year, substantially related to the business conducted pursuant to the franchise; or
(E) Any act by a franchisee which substantially impairs the franchisor’s trademark or trade name; or
(F) The institution of insolvency or bankruptcy proceedings by or against a franchisee, or any assignment or attempted assignment by a franchisee of the franchise or the assets of the franchise for the benefit of the creditors; or
(G) Loss of the franchisor’s or franchisee’s right to occupy the premises from which the franchise business is operated; or
(H) Failure of the franchisee to pay to the franchisor within ten (10) days after receipt of notice of any sums past due the franchisor and relating to the franchise.
Hobbs points out that the franchise was not terminated for any of these reasons and that the plain language of the statute, coupled with the canon of statutory construction expressio unius est exclusio alterius, prohibits an interpretation of the AFPA’s list of circumstances constituting “good cause” for termination that includes circumstances not specifically listed in section 4-72-202. The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may be properly construed to mean the exclusion of another. MacSteel v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).
Hobbs’s argument is well taken. “Good cause” is clearly defined by the plain language of section 4-72-202(7). In that section, the General Assembly listed several examples of good cause for termination, and market withdrawal was not included as an example of good cause. Had the legislature intended to include market withdrawal as good cause for termination, it could have done so.
We also note that the United States Court of Appeals for the Fourth Circuit construed section 4-72-202(7) in Volvo Trademark Holding Aktiebolaget v. Clark Machinery Co., 510 F.3d 474 (2007). In Volvo, the Fourth Circuit held that the enumerated occurrences in section 4-72-202 are the exclusive means by which a franchisor can terminate a franchise for “good cause.” Decisions of the federal circuit courts are not binding on this court; however, we find the Fourth Circuit’s interpretation of section 4-72-202 to be persuasive. The Volvo court wrote:
The Arkansas Act includes a list of eight occurrences that constitute “good cause” for termination or cancellation of a franchise. See Ark. Code Ann. § 4-72-202 (West 2007). The district court held, adopting Clark’s position, that this list constituted the exclusive means by which a franchisor may terminate a franchise for good cause under the Arkansas Act. Volvo acknowledges that it did not terminate Clark’s Dealer Agreement for any of the specific reasons provided for in the Arkansas Act, but contends that those eight occurrences are not an exclusive list of what constitutes good cause for termination of a franchise. Appurtenant to this contention,Volvo maintains that its reasons for termination, i.e.,“Volvoization” and “Dealer Rationalization,” also constitute good cause for a franchise termination under the Arkansas Act.
As the district court aptly recognized, Volvo’s contention presents an issue of statutory constmction, and a federal court sitting in diversity is obliged to apply state law principles to resolve such a question, utilizing such principles as enunciated and applied by the state’s highest court. See Volvo Trademark, 416 F. Supp. 2d at 410 (citing Cooper Distrib. Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 274 (3d Cir. 1995)). The Arkansas Supreme Court has not resolved the statutory issue raised by Volvo, and we are therefore obliged to interpret the Arkansas Act by applying the principles of statutory construction that would guide an Arkansas court in making such a decision. See CTI/DC, Inc. v. Selective Ins. Co. of Am., 392 F.3d 114, 118 (4th Cir. 2004).
The district court made a thorough explanation of its ruling on this issue. According to the applicable Arkansas legal principles, if a statute is clear, it is to be given its plain meaning, and courts are not to search for any legislative intent. See Volvo Trademark, 416 F. Supp. 2d at 411 (citing Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987)). Arkansas also subscribes to the legal principle of expressio unius est exclusio alterius, meaning “ ‘that the express designation of one thing may properly be construed to mean the exclusion of another.’ ” Id. (quoting Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233, 236 (1993)).
Applying these controlling principles to the Arkansas Act, the district court concluded that good cause for termination of a franchise under the Act is limited to the eight occurrences specifically enumerated therein. See Volvo Trademark, 416 F. Supp. 2d at 412. The court deemed the Arkansas Act to be clear on its face, and determined that the express designation of those eight occurrences precluded any other circumstance from constituting good cause for a franchise termination. Id. at 411. As a result, the court concluded that the Arkansas Supreme Court would have held that the “circumstances constituting ‘good cause’ for termination under the [Arkansas Act] are limited to those expressly designated in” the Act and, because Volvo’s actions did not fall under one of the enumerated occurrences, it had terminated Clark’s Dealer Agreement in violation of the Arkansas Act. Id. at 412, 416-17.
Volvo, 510 F.3d at 482-83 (footnote omitted).
We agree with the reasoning set forth in the Volvo decision. We hold that the plain language of the statute, along with the canon of statutory construction expressio unius est exclusio alterius, prohibits an interpretation of the AFPA’s list of circumstances constituting “good cause” for termination that includes circumstances not specifically listed in section 4-72-202. Accordingly, we answer the first certified question in the negative. The market withdrawal of a product or of a trademark and a trade name for the product does not constitute “good cause” to terminate a franchise under Arkansas Code Annotated section 4-72-204(a)(l).
Before leaving this point, we note that in its brief before this court, CNH claims that by interpreting the statutory prohibition against termination of a franchise without “good cause” as not applying to market withdrawals, this court can avoid the prospect of a state-imposed “exit toll” that would raise Commerce Clause concerns. At our discretion, we answer questions of law certified to us by order of a federal court of the United States. See Ark. Sup. Ct. R. 6-8. The “exit toll” issue is not within the question of law we accepted, and we decline to address it.
Liability Under Arkansas Code Annotated section 4-72-310(b)(4)
The second question certified to this court is whether, under the facts of this case, liability under Arkansas Code Annotated § 4-72-310 (b)(4) (Repl. 2001) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
Section 4-72-310 (b)(4) provides that it is a violation of the Farm Equipment Retailer Franchise Protection Act for a manufacturer to:
Attempt or threaten to terminate, cancel, fail to renew, or substantially change the competitive circumstances of the dealership agreement based on the result of a natural disaster, including a sustained drought in the dealership market area, labor dispute, or other circumstances beyond the dealer’s control.
(Emphasis added.)
Thus, it is clear that section 4-72-310(b)(4) proscribes only attempts or threats to terminate, cancel, fail to renew, or substantially change the competitive circumstances of the dealership agreement. Actual termination, cancellation, failure to renew, or substantially changing the circumstances of the dealership agreement are not addressed in this section; therefore, no liability is created for those actions under section 4-72-310 (b)(4). Accordingly, we answer the second certified question in the negative and hold that no liability under section 4-72-310 (b)(4) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
Remedies Under the AFERFPA
The final question this court must consider is whether, under the facts of this case, the sole remedies for a violation of the AFERFPA are: (1) the requirement that the manufacturer repurchase inventory for a termination without good cause, and (2) damages, costs, and attorneys’ fees that result from the failure to purchase inventory as provided in Arkansas Code Annotated section 4-72-309 (Repl. 2001), or whether other remedies are also available.
Section 4-72-309 provides:
If any wholesaler, manufacturer, or distributor fails or refuses to repurchase any inventory covered under the provisions of this subchapter within sixty (60) days after shipment of the inventory, he or she shall be civilly liable for one hundred percent (100%) of the current net price of the inventory, plus any freight charges paid by the retailer, the retailer’s attorney’s fees, court costs, and interest on the current net price computed at the legal interest rate from the sixty-first day after shipment.
Hobbs states that the 1991 amendments to the AFERFPA, adding section 4-72-310, created new rights not tied to a manufacturer’s inventory repurchase rights. Hobbs avers that the AFERFPA contains two sets of rights for dealers —- rights that exist during or after the term of the dealership agreement and rights that exist only upon termination of the dealership agreement. Hobbs further states that, while the legislature provided farm equipment dealers with new rights, the legislature failed to specify any particular remedy for violation of these new rights. Still, Hobbs asserts that it is not without a remedy because article 2, section 13 of the Arkansas Constitution requires that there be a remedy for every right created by the legislature. That section provides:
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.
Ark. Const, art. 2, § 13.
Hobbs correctly states the law, but it appears to suggest that this constitutional provision means that it is entitled to money damages. Article 2, section 13 provides that one wronged is entitled to a “certain remedy,” but it does not state that the remedy must be in the form of money damages. “In the absence of a statutory provision expressly authorizing it, damages cannot be recovered by either party.” White River Land & Timber Co. v. Hawkins, 128 Ark. 277, 279, 194 S.W. 9, 10 (1917). There is no language in section 4-72-310 authorizing money damages. Therefore, the remedies available under that section are limited to remedies other than money damages, such as injunctive relief and declaratory relief. As such, we answer the third question in the negative. The sole remedies for a violation of the AFERFPA are not those provided in section 4-72-309; parties may also seek remedies other than money damages.
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Jim Hannah, Chief Justice.
This is an appeal of an adoption decree granted to the appellees, Wendell Ray Lane and Davelynn Felkel Lane, permitting Wendell to adopt Davelynn’s minor son, D.P., whom she conceived with appellant Jason Powell. The court of appeals reversed and remanded to the circuit court in a 5-4 decision. See Powell v. Lane, 101 Ark. App. 295, 275 S.W.3d 666 (2008). The Lanes petitioned this court for review, which we granted pursuant to Arkansas Supreme Court Rule 2-4 (2008). Because this appeal is before us on a petition for review, our jurisdiction of the case is pursuant to Arkansas Supreme Court Rule l-2(e) (2008). Upon the grant of a petition for review, we consider the case as though it had been originally filed in this court. See, e.g., Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). We affirm the circuit court’s order granting the petition for adoption, and we reverse the court of appeals.
It is undisputed that on December 31, 1996, Davelynn and Jason went to the First Baptist Church in Pencil Bluff where they were married by Reverend Bruce Tidwell. The ceremony was traditional in that Jason stood at the head of the church and Davelynn walked down the aisle in a creme-colored dress. When Davelynn reached the front of the church, she and Jason exchanged marriage vows while family and friends witnessed the ceremony. Davelynn’s mother was among those present. Dave- lynn was pregnant with Jason’s child at the time of the ceremony and later gave birth to a son, D.P., on July 9, 1997. She and Jason lived together as husband and wife, from the date of the ceremony until their separation in the spring of2004, almost eight years later.
It is also undisputed that Davelynn and Powell obtained a marriage license before the ceremony. The marriage license was not signed by Reverend Tidwell and was never returned to the county clerk for filing. Davelynn and Jason have never obtained a divorce.
On June 9, 2004, Davelynn petitioned the Montgomery County Circuit Court to establish paternity of her son, D.P. Davelynn alleged that Jason was the natural father ofD.P., a minor child who was born out of wedlock to her on July 9, 1997. In addition, she averred that she and Jason were not married to each other or any other persons at the time of the conception and birth ofD.P. The petition and summons were served on Jason, but he failed to answer and a default judgment was entered on July 23, 2004. In the order, the circuit court found that Jason was the natural father of D.P., and that Davelynn and Jason were not married to each other or any other persons at the time of the conception and birth ofD.P. The order set a visitation schedule, required Jason to pay child support in the amount of seventy-five dollars per week, and required Jason to pay one-half of D.P.’s medical expenses. Jason did not appeal the default order. Subsequently, Jason moved to set aside the default judgment, but that motion was denied.
Davelynn and Wendell were married on September 4, 2004. On March 28, 2006, they petitioned the Polk County Circuit Court for a decree allowing Wendell to adopt D.P. without the consent of Jason. Davelynn consented to the adoption and alleged that Jason had failed significantly without justifiable cause to communicate with or support D.P. for at least one year. Jason answered, denying the allegations and refusing to consent to the adoption.
On May 12, 2006, Jason filed a petition for divorce against Davelynn in Montgomery County Circuit Court in the same cause of action as the paternity action. Davelynn moved to dismiss the petition, asserting that the issue of the validity of the marriage had already been resolved. The cases were consolidated in the Polk County Circuit Court and heard on July 5, 2006.
At the hearing, Davelynn testified that she was pregnant at the time of the wedding. She stated that she and Jason were not married; rather, she testified that they “went through a ceremony.” Davelynn added: “You do lots of things of play acting that’s not legal and it’s my understanding that that wasn’t legal.” She claimed that, at the time, Jason did not want to be married because he felt “trapped,” but that they had already gotten the marriage license, her grandfather was dying, and she was an overwhelmed pregnant teenager who did not know what to do. Davelynn testified that she and Jason never intended to file the license and that the preacher never saw the marriage license. In addition, Davelynn stated that she “made a very bad decision,” and that she and Jason were never married.
Davelynn also provided testimony regarding her marriage to Wendell. She stated that they were married on September 4, 2004, in Branson, Missouri. She further stated that Jason had not paid child support since December 2004 and that he had not paid any portion of D.P.’s medical bills.
Jason testified that D.P. had been diagnosed with aseptic optic dysplasia with hypopanpituitarism. Jason stated that he was his son’s “primary shot-giver” and “primary medication-giver” during the first eight years of his son’s life. Jason admitted that he stopped paying support to Davelynn through the Child Support Clearinghouse, but he denied that he quit paying support, stating that, instead, he deposited payments into a fund that he was maintaining for D.P. Jason said that he stopped paying money to the clearinghouse because he knew that doing so would cause the Child Support Enforcement Office to bring him into court. Jason stated that he believed that once he was brought into court, he could resolve all of the other issues with Davelynn.
Jason’s sister-in-law, Melissa Powell, testified that she witnessed the marriage ceremony in which Jason and Davelynn were married. She stated: “We had a wedding, they kissed, they went down the aisle, they said, I do. That’s what I seen.”
Wendell testified that he and Davelynn were married on September 4, 2004, and have one child together. He further testified that D.P. had resided with him and Davelynn since they were married. Wendell stated that he wanted to adopt D.P. because he loved him and because he felt like D.P. was his son. Wendell also testified that he and Davelynn had received no financial support for D.P. from Jason since their marriage.
The circuit court dismissed Jason’s divorce petition. In doing so, the circuit court ruled that Davelynn and Jason were never married because they failed to have the preacher who performed their marriage ceremony sign the marriage license and because they also failed to file the license with the county clerk.
The circuit court then granted the adoption petition of Davelynn and Wendell. In its order granting the petition, the circuit court found that Jason and Davelynn were not married at the time D.P. was conceived or at any time thereafter. The circuit court further concluded that, while there was much testimony and conflict over whether Jason had attempted to communicate with D.P., there was no dispute that, in excess of one year, Jason had failed significantly, without justifiable cause, to pay child support for D.P. Accordingly, the circuit court determined that Jason’s consent to the adoption was not necessary. Jason filed a motion for reconsideration, which was denied by the circuit court. Jason appealed to the court of appeals, which reversed and remanded the circuit court. The court of appeals held that Davelynn and Jason were validly married and that the circuit court erred in finding otherwise. See Powell, 101 Ark. App. at 296, 275 S.W.3d at 667. Further, the court of appeals held: “In that the trial court’s finding that [Jason] and Davelynn were never married was the determi-nating factor regarding the remaining issues, we reverse and remand all issues presented.” Id., 275 S.W.3d at 667. Davelynn and Wendell now petition for review.
The Validity of the Marriage
Jason first contends that the circuit court erred in concluding that he and Davelynn were not validly married. Davelynn claims that the issue of the validity of the marriage was decided in the circuit court’s July 23, 2004 default order. She points out that Jason took no appeal from that order and that he did not raise the issue of the validity of the marriage until nearly two years after the entry of the order, in a petition for divorce. Accordingly, Davelynn contends that Jason’s arguments regarding the validity of the marriage are barred by res judicata. For his part, Jason asserts that Davelynn’s paternity complaint did not address the validity of the marriage and, therefore, the default order could not have resolved the issue.
Res judicata bars relitigation of a claim in a subsequent suit when five factors are present. These include: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). Furthermore, res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Id. The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id. This court has applied the doctrine of res judicata in the context of family law. Id.
While Davelynn couches her argument in terms of res judicata, it appears that she is asserting that Jason’s challenge to the validity of the marriage is barred by collateral estoppel, or issue preclusion. Collateral estoppel requires four elements before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). The party against whom collateral estoppel is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding. See id. Unlike res judicata, which acts to bar issues that merely could have been litigated in the first action, collateral estoppel requires actual litigation in the first instance. Id.
The default judgment states that Jason was properly served, and that Davelynn and Jason “were not married to each other or any other persons at the time of the conception and birth.” The paternity petition asserted that Jason and Davelynn “were not married to each other or any other persons at the time of the conception and birth” of D.P. Thus, Jason was on notice that the issue of the validity of this marriage was to be decided, and he had a full and fair opportunity to be heard. He chose not to be heard.
However, the dissent states that collateral estoppel does not apply to default judgments. In Arkansas, a default judgment is just as binding and enforceable as a judgment on the merits. See State v. $258, 035 U.S. Currency, 352 Ark. 117, 98 S.W.3d 818 (2003). Nonetheless, the dissent asserts that collateral estoppel does not apply to default judgments because a default does not actually litigate the issues. The dissent errs in its definition of “actually litigated.” In the context of collateral estoppel, “actually litigated” means that the issue was raised in pleadings, or otherwise, that the defendant had a full and fair opportunity to be heard, and that a decision was rendered on the issue. For example, in Bradley Ventures v. Farm Bureau Mutual Insurance Co. of Arkansas, 371 Ark. 229, 237, 264 S.W.3d 485, 492 (2007), taking the guilty plea decided guilt to a charge of reckless burning, but taking the guilty plea did not decide the issue of Bradley’s intent to commit arson with which he was originally charged. While this case does not concern a default judgment, it is similar in that it involved a plea that resolved the case without a full trial. To the argument of collateral estoppel, this court stated:
The doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that issue was essential to the judgment.
Bradley, 371 Ark. at 234-35, 264 S.W.3d at 490. A guilty plea or a default judgment may satisfy the requirement of collateral estoppel where the issue was essential to the judgment and was properly raised and decided by the action. Both a guilty plea and a default judgment may provide a full and fair opportunity to heard, as in the present case. Jason chose not to avail himself of the opportunity to be heard. A default judgment determines the parties’ rights just as any conventional judgment or decree. See Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (1980).
However, as the dissent notes, some courts in foreign jurisdictions hold that default judgments are not subject to collateral estoppel because default judgments do not arise from actual litigation. But see, e.g., Gottlieb v. Kest, 46 Cal. Rptr. 3d 7, 34 (Cal. Ct. App. 2006) (“California, on the other hand, accords collateral estoppel effect to default judgments, at least where the judgment contains an express finding on the allegations.”). The courts holding that collateral estoppel does not apply to default judgments also err, as the dissent does, in the definition of “actually litigated.” The citation of an Iowa case serves as an example of how the error arises. In Blea v. Sandoval, 761 P.2d 432, 435 (N.M. Ct. App. 1988), cited by the dissent, the New Mexico Supreme Court relied, among other cases, on Lynch v. Lynch, 94 N.W.2d 105 (Iowa 1959), for the proposition that a default judgment has no collateral estoppel effect. In Lynch, the Iowa Supreme Court stated, “Collateral estoppel is usually not available in default cases.” 94 N.W.2d at 108 (emphasis added). This appears to support the dissent’s position; however, upon further analysis, it is clear that Lynch does not hold that all default judgments fail to satisfy the requirements of collateral estoppel. In making the statement about collateral estoppel not usually applying to default judgments, the Iowa Supreme Court cited to Matson v. Poncin, 132 N.W. 970 (Iowa 1911). Matson does not state that collateral estoppel does not apply to default judgments. Rather, there we find that “it must appear that the particular matter was considered and passed on in the former suit, or the adjudication will not operate as a bar to subsequent action.” Matson, 132 N.W. at 972. The court in Matson went on to state that “a matter, not embraced in the pleadings, and which was not necessarily determined in entering judgment could not have been directly in issue.” Id. Thus, the phrase “collateral estoppel is usually not available in default cases,” really meant that collateral estoppel is not available unless the matter was raised in the pleadings, or otherwise, and directly decided. Default judgments may or may not satisfy the requirements of collateral estoppel. The question must be considered on a case-by-case basis.
The issue of collateral estoppel and default judgments was also discussed in Lane v. Farmers Union Insurance, 989 P.2d 309 (Mont. 1999) (also cited by the dissent). There, the court considered the question of whether a default judgment served as a final judgment on the merits. To decide this, the court concluded it had to determine whether the issue was actually litigated and stated a test:
This analysis requires two things: first, that the issue was effectively raised in the pleadings, or through development of the evidence, and argument at trial or on motion; and, second, that the losing party had a full and fair opportunity procedurally, substantively, and evidentially to contest the issue in a prior proceeding.
Lane, 989 P.2d at 317. Again, as in Lynch, supra, the question is whether the issue was properly raised and whether there was a full and fair opportunity to be heard.
Other courts have held that the requirement of actual litigation was met in a default judgment:
A judgment taken by default is conclusive by way of estoppel in respect to all such matters and facts as are well pleaded and properly raised, and material to the case made by declaration or other pleadings, and such issues cannot be relitigated in any subsequent action between the parties and their privies. [ ]
In re Bursack, 65 F.3d 51, 54 (6th Cir. 1995) (quoting Lawhorn v. Wellford, 168 S.W.2d 790, 792 (Tenn. 1943)). Still other jurisdictions bear out this conclusion that “actually litigated” means notice and a full and fair opportunity to be heard rather than litigation where a matter is decided only after development and introduction of evidence by both sides. A discussion in Overseas Motors, Inc. v. Import Motors, Ltd., 375 F. Supp. 499 (D.C. Mich. 1974), is helpful:
Default Judgment — Collateral estoppel applies only to those issues which were ‘actually’ or ‘fully litigated’ in the prior action. However, this rule does not refer to the quality or quantity of argument or evidence addressed to an issue. It requires only two things: first, that the issue has been effectively raised in the prior action, either in the pleadings or through development of the evidence and argument at trial or on motion; and second, that the losing party has had ‘a fair opportunity procedural!/, substantively, and evidentially’ to contest the issue. The general rule therefore is that subject to these restrictions default judgments do constitute res judicata for purposes of both claim preclusion and issue preclusion (collateral estoppel).
Overseas Motors, Inc., 375 Supp. at 516, quoted in In re Bush, 62 F.3d 1319, 1323 (11th Cir. 1995); In re Houston, 305 B.R. 111, 118 (Bankr. M.D. Fla. 2003); In re Foster, 280 B.R. 193, 205 (Bankr. S.D. Ohio 2002).
In the present case, the issue of the validity of the marriage was decided in the default judgment after personal notice and a full and fair opportunity to be heard. The determination of Davelynn’s marital status was essential to the judgment in the paternity action. Davelynn asserted in the paternity action that she was not married at the time of D.P.’s conception and birth. Jason did not offer any evidence to the contrary, although he had the opportunity to do so. The circuit court declared that Davelynn was not married to Jason at the time of D.P.’s conception and birth. Thus, the issue of marital status was “actually litigated.” The decision of paternity was conclusive, and Jason is bound by that decision. Collateral estoppel applies in this case. To hold otherwise would undermine the finality of judgments. There is no bright-line rule. Each judgment, taken by default, or otherwise, must be examined to determine what was finally decided and whether it meets the requirements of collateral estoppel.
In connection with his argument that his marriage to Davelynn was valid, Jason asserts that the adoption should be void because no home study was conducted of Davelynn and Wendell’s home. Arkansas Code Annotated section 9-9-212(b)(l)(A) (Supp. 2005) states: “Before placement of the child in the home of the petitioner, a home study shall be conducted by any child welfare agency licensed under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., or any licensed certified social worker.” Pursuant to Arkansas Code Annotated section 9-9-212(c), “[t]he court may also waive the requirement for a home study when a stepparent is the petitioner.” Jason asserts that because he and Davelynn never obtained a divorce, Davelynn’s marriage to Wendell is void; therefore, Wendell is not D.P.’s stepparent, and a home study could not be waived.
There is a longstanding presumption against deliberate bigamy, Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953), and there is a common law presumption of the validity of the second marriage, Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971). The burden of disproving the validity of a marriage is on the one attacking it. Bruno, supra. Here, the only argument advanced by Jason is that the second marriage is void because he and Davelynn were still validly married, an argument that he is collaterally estopped from asserting. Jason has failed to overcome the presumption of the validity of the marriage between Davelynn and Wendell. It follows that he has failed to prove that Wendell was not D.P.’s stepparent at the time of the adoption and that a home study was required in this case.
Consent to Adoption
Jason contends that the circuit court erred in granting the petition for adoption because there was insufficient evidence that he had failed significantly without justifiable cause to communicate with D.P. and to support D.P. Adoption statutes are strictly construed, and a person who wishes to adopt a child must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007). A circuit court’s finding that consent is unnecessary because of a failure to support or communicate with the child will not be reversed unless clearly erroneous. Id.
Arkansas Code Annotated section 9-9-206 (a) (2) (Supp. 2005) provides in relevant part:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter ....
Arkansas Code Annotated section 9-9-207(a)(2) (Supp. 2005) provides:
(a) Consent to adoption is not required of:
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree[.]
The circuit court concluded that, while there was much testimony and conflict over whether Jason had attempted to communicate with D.P., there was no dispute that the last child support was paid in December 2004. Therefore, the circuit court found that consent was not necessary. The failure to pay child support, standing alone, justifies the finding that consent is unnecessary. At the July 5, 2006 hearing, Jason admitted that he had “quit paying child support to [Davelynn].” He claimed that he had child support “sitting over here in a fund.” The record reveals that Jason’s last payment of child support to the clearinghouse was recorded on December 6, 2004. There was no evidence that he had otherwise paid child support. Thus, it is clear that Jason failed to pay support in excess of one year. Failure to pay support without justifiable cause means a failure that is voluntary, willful, arbitrary, and without adequate excuse. See In re Adoption of K.F.H. & K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993) (citing Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980)). Jason voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year. Jason’s reason for not paying support — that it was an attempt to get Davelynn back into court — is not justifiable cause for failing to support his child. The circuit court did not err in finding that consent to the adoption was unnecessary because Jason failed to pay child support in excess of one year.
Opportunity to Cure
Jason contends that the circuit court erred in granting the adoption and terminating his parental rights under the provisions of Arkansas Code Annotated section 9-9-207 (Supp. 2005) be cause he was not given the opportunity to cure as provided by Arkansas Code Annotated section 9-9-220(c)(l) (Supp. 2005), which provides:
In any addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(1) Abandonment.
(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the noncustodial parent.
(B) If the notification clause required by subdivision (c)(1)(A) of this section is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.
(C)(i) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.
(ii) Once the requirements under subdivision (c)(1) (C)(i) of this section are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.
(iii) The court may terminate parental rights of the non-custodial parent upon a showing that:
(a) Child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1) (C)(i) of this section; and
(b) It would be in the best interest of the child to terminate the parental relationship.
The record reveals that Jason had the opportunity to “cure” his failure to pay child support, pursuant to section 9-9-220(c)(l)(C), but he chose not to do so. The petition in this case was filed on March 28, 2006. Under section 9-9-220(c)(l)(C), Jason had three months from that date, or until June 28, 2006, to pay a substantial amount of past due payments owed and to establish a relationship with his child. No payments were made. Although Jason contended, at the hearing on July 5, 2006, that he paid the funds into a separate account, he never deposited those funds into the registry of the court nor did he pay any of those funds to the mother. Even after receiving notice that an adoption petition was filed, he still refused to comply with the court order regarding child support. By his own actions, Jason did nothing to enforce any right he might have had to “cure” his failure to pay child support.
In sum, the circuit court found that Jason’s consent was not necessary for the adoption and that it would be in D.P.’s best interest to grant the petition for adoption. We recognize that the circuit court did not conclude, as we do, that Jason is collaterally estopped from challenging the validity of the marriage. It is axiomatic that this court can affirm a circuit court if the right result is reached even if it is for a different reason. See, e.g., Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). We affirm the circuit court’s granting of the petition for adoption.
Court of appeals reversed; circuit court affirmed.
Brown and Wills, JJ., dissent.
The record shows that Jason was personally served.
It appears that the confusion over the meaning of“actuaIly litigated” may arise from the distinction between claim preclusion under res judicata and issue preclusion, or collateral estoppel. Under claim preclusion or res judicata, the entire claim is precluded, including any and all issues that were or might have been raised; however, under issue preclusion, or collateral estoppel, only those issues that were directly and necessarily adjudicated (actually litigated) are precluded. See Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). From this distinction comes the requirement under collateral estoppel that the issue to be precluded must have been “actually litigated.” Thus, “actually litigated” has nothing to do with whether the judgment was obtained by default, summary adjudication, trial, or otherwise; rather, the question is whether the issue to be precluded was adjudicated in the judgment at issue.
As the dissent notes in citing In re Cantrell, 329 F.3d 1119 (9th Cir. 2003), California does not follow the courts that hold there is a blanket rule against applying collateral estoppel to default judgments. This dates back some time as the authority cited by the court in Cantrell indicates. “The fact that the judgment was secured by default does not warrant the application of a special rule. ‘A default judgment is an estoppel as to all issues necessarily litigated therein and determined thereby exacdy like any other judgment.’ ” In re Harmon, 250 F.3d 1240, 1246 (2001) (quoting Horton v. Horton, 116 P.2d 605, 608 (Cal. 1941)). The complete quote, which is found in Harvey v. Griffiths, 23 P.2d 532, 534 (Cal. Ct. App. 1933), is as follows:
It is immaterial that the judgment which is assailed was procured by default. The defendants in that action had an opportunity to appear and protect their interest. They deliberately waived the right to their day in court by failing to appear and answer the complaint. A default judgment is an estoppel as to all issues necessarily litigated therein and determined thereby exactly like any other judgment provided the court acquired jurisdiction of the parties and subject-matter involved in the suit.
Harvey, 23 P.2d at 534 (citing 3 A.C. Freeman, A Treatise of the Law of Judgments § 1296, at 2690 (5th ed. 1925)).
This language appears to have originated in 1 Henry Campbell Black, A Treatise on the Law of Judgments § 87, at 126-27 (1891), where the above-quoted language is found. Black goes on to state that “while a default judgment is conclusive of all that is properly alleged in the complaint, it is conclusive of nothing more, and as a general rule it binds the defendant only in the character in which he is sued.” Id. | [
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Per Curiam.
Appellant Rodney Pankau, by and through his attorney, Kenneth R. Shemin, has filed the instant motion for belated appeal. The circuit court entered a judgment and commitment order on September 30, 2008. The notice of appeal was due to be filed on October 30, 2008, but was not filed until October 31, 2008.
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 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.
356 Ark. 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 or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
In accordance with McDonald, Mr. Shemin 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.
R.M.W. appeals an order of the Pulaski County Circuit Court, Criminal Division, deny ing his motion to transfer his case to the circuit court, juvenile division, pursuant to Arkansas Code Annotated § 9-27-318 (Supp. 2005). He argues that the circuit court’s decision to try him as an adult is clearly erroneous in that the decision is not supported by clear and convincing evidence. We hold that the trial court was not clearly erroneous and that the decision is supported by clear and convincing evidence. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2 (b)(4).
Facts
On July 17, 2007, Tom & Jean’s Grocery was robbed. Store owner Ghazi Hammad suffered multiple gunshot wounds and later died. His wife Khadijah Awwad suffered a gunshot wound and survived. R.M.W. and M. B. were charged as adults with capital murder, attempted capital murder, and aggravated robbery. At the time of the robbery, R.M.W. was fifteen years old, and M.B. was seventeen years old.
R.M.W. moved to transfer the criminal action against him to the juvenile division. At the hearing on the motion, evidence was presented to show that while he was fifteen, he functioned at the level of a twelve- to thirteen-year-old. Family, teachers, and a psychologist testified that R.M.W. was childlike and immature. They noted that he prefers the company of children who are younger than he is because he enjoys their interests. Evidence was presented to show that R.M.W. still plays cars with younger boys and that he plays juvenile games that others his age long ago abandoned. Evidence was also presented to show that R.M.W. had never been violent or showed any tendencies toward aggressiveness or violence. There was additional evidence that R.M.W. was always respectful and mannerly in his dealings with teachers and others and that he was helpful and kind. A deputy sheriff who works with R.M.W. in detention testified that he is very obedient and respectful, and does not seem to understand why he is being held. She further noted that he is easily intimidated by the other inmates. Several witnesses testified that R.M.W. is a follower. They stated further that he does not plan in life, and that he acts impulsively without foreseeing consequences.
R.M.W.’s account of what happened was introduced through his testimony and the testimony of his mother. R.M.W. was permitted to return to his old neighborhood and stay overnight on July 17 with his friend M.B. M.B. asked R.M.W. if he wanted to go buy candy, and R.M.W. agreed. On the way to the store, M.B. stated, “I’m tired of this shit.” R.M.W. asked, “Tired of what?” M.B. responded, “I’m tired of being broke. I am fixing to rob a store. Are you down?” R.M.W. testified that he told M.B. “No.” R.M.W. states that at this point, M.B. pulled out a gun and put it to R.M.W.’s head saying if he “didn’t do it, he was going to kill me.” R.M.W. further stated:
He told me to go in there and act like I was getting some candy and stuff like that. ... I went in the store and acted like I was getting some candy. I was walking around. And I didn’t know what to do. I was just walking around. I went on the other side of the rack, and he came behind me and said if I didn’t do it he was going to kill
R.M.W. stated that he then pulled out his gun and pointed it at Hammad and Awwad, telling them to raise their hands. R.M.W. further stated that he kept his gun on Hammad and Awwad for a while, and in trying to get out of the robbery, he handed his gun to M.B., who took it, but handed it back to R.M.W. requiring him to go on. Hammad then began to walk toward him and M.B., and R.M.W. stated that he dropped his pistol because he did not want to go through with the robbery. Hammad attacked them, and M.B. shot Hammad. They escaped to the woods, and when M.B. fell asleep, R.M.W. fled. He called his mother the next morning and turned himself into the police.
M.B. testified that he and R.M.W. planned the robbery together. He also testified that R.M.W. wanted to be armed so they stole a pistol for R.M.W. to use in the robbery. M.B. testified that R.M.W. was a willing participant in the robbery.
A video surveillance tape in the store recorded the robbery. The video quality is sufficient to easily identify the people and see the events. There is audio, but the quality is low. The gunshots can be heard, and voices can be heard, but the voices cannot be understood. The robbery occurred shortly after 10:00 p.m. after the store had been closed for the day. The videotape shows Hammad step out of view where he apparently unlocks the door to let R.M.W. enter the store. R.M.W. goes to an aisle of merchandise to look around and Hammad leans on a nearby rack while he talks with him. M.B. did not enter with R.M.W. After speaking with R.M.W. for a few moments, Hammad returns to the front of the store and M.B. enters. M.B. walks around one aisle to encounter R.M.W. from behind in what appears to be an attempt to conceal communication with R.M.W. M.B. walks close to R.M.W. and does appear to communicate with R.M.W. in some way. They then proceed together toward Hammad and Awwad who are near the door.
They approach Hammad and Awwad with drawn pistols. R.M.W. has a black pistol, and M.B. has a silver pistol. R.M.W. confronts Hammad with his pistol. There is physical contact between the two, and Hammad brushes R.M.W. aside. R.M.W. backs off while still holding his pistol on Hammad. Gunshots are heard and Hammad touches his mouth, apparently indicating an injury. M.B. is not visible at this point. M.B. steps out in front of Hammad holding a silver pistol on Hammad. R.M.W. is off to the right and in one camera view can be seen holding his gun on Hammad. R.M.W. then hands his pistol to M.B. Nothing on the tapes makes clear why this transfer of the gun occurred; however, the gun is soon handed back to R.M.W. R.M.W. is then seen again holding his pistol on Hammad and Awwad. M.B. makes two trips behind the counter. Hammad then approaches R.M.W. and M.B. They both back away. A scuffle between the three occurs, and R.M.W.’s black pistol falls to the floor. R.M.W. escapes and moves out of the scene toward the front of the store. A few moments later, he returns to the fight in an apparent attempt to free M.B. from Hammad by striking Hammad at least twice. As R.M.W. strikes Hammad, he is drawn back into the fray. M.B. escapes the fight and grabs the black pistol off the floor. Awwad comes to Hammad’s aid and holds R.M.W. down. Hammad leaves to pursue M.B. M.B. shoots multiple times and returns to free R.M.W. from Awwad. R.M.W. moves toward the front of the store where he remains while M.B. threatens Awwad. The boys then leave the store.
At some point during the robbery, Awwad suffers a gunshot wound to the hip; however, the videotape does not reveal when that occurred. Awwad was unable to say when she was injured. The parties agreed that all shots were fired by M.B.
Motion to Transfer to Juvenile Division
R.M.W. moved under Arkansas Code Annotated § 9-27-318(e) to transfer his case to the juvenile division. He argued that he was intimidated and manipulated into participating in the robbery. In deciding the motion, the circuit court is to consider the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated ajuvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). R.M.W. appeals from the denial of a motion to transfer his case to juvenile court. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). Section 9-27-318(e) permits any party to move to transfer, and an order on a motion to transfer may be appealed by any party. See Ark. Code Ann. § 9-27-318(1).
On August 29, 2007, the State filed criminal charges against R.M.W. in the criminal division of the circuit court. Pursuant to Arkansas Code Annotated § 9-27-318 (c)(2), the State could charge R.M.W. in either the criminal division of the circuit court or the juvenile division of the circuit court because at the time of the crime R.M.W. was fifteen and charged with capital murder and aggravated robbery. Upon a finding by clear and convincing evidence that a case should be transferred to another division of the circuit court, the circuit court may do so. See Ark. Code Ann. § 9-27-318 (h)(2); Otis, supra.
Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Otis, supra. This court will not reverse the circuit court’s decision unless it was clearly erroneous. Id. 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. See Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
The critical question in this case was whether, as R.M.W. alleged, he was forced or manipulated into participating in the robbery, or whether he willingly participated. The circuit court found that R.M.W. “has not matured, given his age.” The circuit court also went on to find, as R.M.W.’s expert psychologist Dr. Nicholaus Paul testified, that it is unlikely a person would behave as an innocent child for fifteen years and then commit such a robbery at gunpoint. However, in weighing all the evidence, the circuit court concluded that R.M.W. was lying about the nature of his involvement in the robbery, and that regardless of his background, he was a willing participant in the robbery.
The circuit court found that several facts in this case and several events shown on the videotape contradicted R.M.W.’s story. We agree. R.M.W. entered the store first, while M.B. remained outside. That is inconsistent with a desire to avoid participating. Once inside, R.M.W. had an opportunity to warn Hammad and Awwad and provide for his safety had he wished to do so. He did not do so.
Further, R.M.W. walked in calmly and looked at goods on the shelves. Nothing on the videotape shows that R.M.W. was nervous or cowering in the moments before M.B. entered the store. Rather, he seems to be waiting for M.B.
Additionally, R.M.W. was the first to confront Hammad, and he did so by pointing a pistol at him. In this first confrontation, R.M.W. came in physical contact with Hammad. That is not consistent with a desire to withdraw or not participate. After M.B. shot Hammad in the face, R.M.W. continued to hold his pistol on Hammad.
Soon afterward, R.M.W. handed his pistol to M.B., however, why that was done is not revealed by the videotape. It is only a few more moments until R.M.W. is again pointing his pistol at both Hammad and Awwad. Shortly after this, we see Hammad approach R.M.W. and M.B. They back away. Hammad presses forward and a fight ensues. As this fight begins, R.M.W.’s black pistol falls to the floor. R.M.W. states that he threw down the pistol because he wished to stop participating in the robbery; however, the videotape shows that he dropped it during the fight. Hammad then pursued and grabbed M.B. R.M.W., who by this point is several feet away, returns to strike Hammad at least twice in an attempt to free M.B. from Hammad’s attack. Coming to the robber’s assistance hardly serves as evidence R.M.W. did not want the robbery to take place. Finally, once M.B. freed R.M.W. from Awwad, R.M.W. waited for M.B. and only left the store with him.
We note that R.M.W. argues that he should be tried as a juvenile because he turned himself in, because he was developmentally delayed, because he was in special education for some subjects, and because he was diagnosed with attention deficit hyperactivity disorder. We note that he produced credible witnesses who testified to his quiet, kind, and respectful demeanor. He was by most accounts a gentle boy who would have been thought incapable of such an act as armed robbery; however, the videotape and Awwad’s testimony tell a different story.
We also note that contrary to R.M.W.’s assertion in his brief, the circuit court did not find that he was guilty of the charged crimes. Rather, the circuit court concluded that it “did not believe that a gun was put to his head before he went in the store.” To decide whether transfer to the juvenile court was appropriate, the circuit court had to decide whether the clear and convincing evidence supported R.M.W.’s story that he was a manipulated or an unwilling participant in the robbery. At the close of evidence in the hearing, the circuit court told R.M.W. that the court would take a break and upon its return he would be asked if “his story really happened or not.” That question was asked, and the circuit court could not find his answer, his prior testimony, or his story credible. In this hearing, the circuit judge sat as the finder of fact. Credibility of witnesses is an issue for the finder of fact. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). On appeal, we have no means to assess witness credibility and may not act as the finder of fact. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). R.M.W. has not borne his burden of proving that the circuit court was clearly erroneous. We are not left with the definite and firm conviction that a mistake has been committed.
Affirmed. | [
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Per Curiam.
Attorney Teresa Bloodman filed a motion for rule on clerk, and amended motion for rule on clerk, on behalf of her client Jonathon Laprese Stevenson seeking an order of this court that the clerk lodge and docket the appeal in this case. The clerk refused to docket the appeal based on an untimely notice of appeal. We treat this as a motion for belated appeal and grant the motion.
Stevenson’s judgment and commitment order was filed on December 13, 2007. Stevenson filed a motion for new trial on January 7, 2008, an amended motion for new trial on January 14, 2008, and a second amended motion for new trial on May 14, 2008. His initial motion filed January 7, 2008, and the amended motion filed January 14, 2008, were timely under Arkansas Rule of Criminal Procedure 33.3(b) as posttrial motions filed within thirty days after the date of entry of judgment. The second amended motion for new trial was not timely as it was not filed within thirty days after the date of entry of judgment.
Under Arkansas Rule of Criminal Procedure Rule 33.3(c), a posttrial motion is deemed denied thirty days after the motion is filed if the circuit court neither grants nor denies the motion. Because it was untimely, the second amended motion for new trial did not extend the thirty days of Rule 33.3(c) after which the motion for new trial was deemed denied. The January 14, 2008 amended motion, as the last timely motion, was deemed denied on February 13, 2008. Pursuant to Arkansas Rule of Appellate Procedure-Criminal 2(a) (3), Stevenson had thirty days from the February 13, 2008 date on which his amended motion for new trial was deemed denied within which to file his notice of appeal. No notice of appeal was ever filed on the judgment and commitment order.
On November 12, 2008, an Amended Judgment and Commitment Order was entered and Stevenson filed a notice of appeal from that amended judgment on November 18, 2008. Assuming there was a motion to amend the judgment, it would have been a posttrial motion for relief, and if by filing it Stevenson wished to extend the time within which to file his notice of appeal, it had to be filed within thirty days of entry of the judgment and commitment order. See Hadley v. State, 321 Ark. 499, 902 S.W.2d 231 (1995). Nothing in the record reflects that a motion to amend the judgment was filed or that it was timely filed. It is the appellant’s duty to bring before this court a record sufficient to decide the issue presented. See, e.g., Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). If there was a motion to amend the judgment, it was not a timely posttrial motion. Pursuant to Arkansas Rule of Appellate Procedure — Civil 5, the record was untimely when there was no timely notice of appeal to the judgment and commitment order. The notice of appeal filed on November 18, 2008, was a nullity.
Stevenson filed a motion for rule on clerk; however, counsel’s failure to comply with the rules of this court and file a timely notice of appeal is apparent. As we have noted, 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.” See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). As we further noted in McDonald, there is no advantage in declining to admit fault where fault exists and when it is plain from the motion, affidavits, and record that relief is proper under either error or good reason, the relief will be granted. Id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. Id. Pursuant to McDonald, supra, we grant this as a motion for belated appeal. We also forward a copy of this opinion to the Committee on Professional Conduct. | [
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Robert L. Brown, Justice.
Appellants, Michael Bibbs, L.D. Mason, and MJ Construction Company, Inc., appeal from the circuit judge’s judgment granting summary judgment and dismissal in favor of appellee Community Bank. The appellants assert three points on appeal. We affirm the judgment.
This dispute arises from a loan agreement between Community Bank and Bibbs, Mason, and MJ Construction. Bibbs and Mason are shareholders of MJ Construction — a dirt moving and development business. In 2000, Bibbs, Mason, and MJ Construction purchased 120 acres in Lonoke County with the intent to develop a subdivision. The purchase was financed with a three-year, $375,000 loan from Community Bank, with Community Bank taking a mortgage on the property as security. The loan agreement provided that a final balloon payment for the unpaid balance of the loan was due on April 25, 2003. According to Bibbs, he did not expect to pay off the loan on its due date because he believed that Community Bank would allow him to “roll over” the unpaid balance into a new loan. Bibbs, Mason, and MJ Construction failed to pay off the loan on its due date, and Community Bank made demand for the final balloon payment. When the final payment went unpaid, Community Bank sued for foreclosure on August 1, 2003. On August 25, 2003, Bibbs filed for Chapter 7 bankruptcy. On February 8, 2005, Mason also filed for Chapter 7 bankruptcy, and in doing so, he scheduled a potential lender-liability lawsuit against Community Bank as an asset of the estate. About four months later, Mason terminated his Chapter 7 bankruptcy and filed a Chapter 13 bankruptcy petition.
On August 8, 2005, Bibbs, Mason, and MJ Construction filed suit against Community Bank and alleged breach of the covenant of good faith, breach of fiduciary duty, fraudulent concealment, constructive fraud, conversion, unjust enrichment, and intentional infliction of emotional distress (“lender-liability lawsuit”). On August 30, 2005, Community Bank filed an answer in which it asserted that Bibbs, Mason, and MJ Construction lacked standing to bring this suit.
On February 13, 2007, Community Bank moved for summary judgment, arguing that the appellants lacked standing because Bibbs’s and Mason’s Chapter 7 bankruptcy trustees had the exclusive right to prosecute the action, and they were not parties plaintiff. On March 22, 2007, the appellants filed an amended complaint in which Bibbs’s and Mason’s bankruptcy trustees were added as plaintiffs. On that same date, Bibbs and Mason filed a response to Community Bank’s motion for summary judgment in which they argued that they were the proper parties before the court but that “the claims have been, and continue to be pursued on behalf of the estate.” Attached to their response to Community Bank’s motion for summary judgment was a February 20, 2007 affidavit from James Dowden, Bibbs’s bankruptcy trustee. Mr. Dowden’s affidavit said that during his tenure as trustee he became “aware of [appellants’] assertion that they had a cause of action against Community Bank”; that appellants hired an attorney, James Penick, to pursue the claim on a contingent fee basis; that Mr. Dowden obtained the bankruptcy court’s approval of the lawsuit (in September 2005, after the lawsuit had been filed) and recorded the suit as a potential asset of the estate on December 31, 2005; that appellants’ claims were “being pursued on behalf of the Chapter 7 bankruptcy estate by Mr. Penick as special counsel to the Trustee,” as was “the proper way of handling such litigation”; and that any funds obtained from a settlement or a verdict in favor of the appellants would be payable to the bankruptcy estate. Additionally, appellants argued that MJ Construction had standing to bring the lawsuit, even if Bibbs and Mason did not.
On April 12, 2007, Community Bank moved to dismiss the appellants’ amended complaint because it was filed after the three-year statute of limitations had expired. Community Bank asserted, in addition, that MJ Construction lacked standing because it was not a corporation in good standing at the time either the original complaint or the amended complaint was filed. This assertion was supported by a certificate from the Arkansas Secretary of State, showing that MJ Construction’s corporate charter had been revoked on December 31, 2003, and was not reinstated until April 9, 2007.
On May 7, 2007, the circuit judge sent a letter to both parties stating that a hearing on Community Bank’s summary-judgment motion regarding standing and motion to dismiss regarding the statute of limitations would not be scheduled until the parties had completed mediation. The next day, on May 8, 2007, the judge sent a second letter to the attorneys setting a hearing on the motions for May 21, 2007. On that same date, counsel for Community Bank sent a letter to appellants’ counsel erroneously stating that the hearing had been scheduled for July 10, 2007.
On May 21, 2007, the circuit judge held a hearing on Community Bank’s motions. Counsel for the appellants was not present. The circuit judge noted for the record that he had sent a letter fixing the date and time of the hearing to all parties. Because of appellants’ counsel’s absence, the circuit judge stated that he would not hear oral argument from Community Bank’s attorney and would instead decide the issues based on the pleadings and briefs of the parties. The circuit judge then ruled from the bench that he was granting Community Bank’s motion for summary judgment because of appellants’ lack of standing and was dismissing the suit as outside the limitations period.
On May 31, 2007, appellants moved for reconsideration, arguing that the circuit judge had erred by conducting the hearing without appellants’ counsel being present and also arguing why appellants did not lack standing. On June 4, 2007, the circuit judge entered a written order memorializing his ruling from the bench and granting Community Bank’s motion for summary judgment and motion to dismiss. In that order, the circuit judge found that neither Bibbs nor Mason had standing to file the original complaint on August 8, 2005, because both had filed for Chapter 7 bankruptcy prior to that date, and, thus, their bankruptcy trustees had the exclusive right to prosecute the cause of action against Community Bank and had not abandoned that right. The judge further concluded that the three-year statute of limitations had run by the time of the filing of the amended complaint and that the amended complaint did not relate back to the date of the filing of the original complaint because the original complaint was void ab initio. As a final point, he concluded that MJ Construction lacked standing at the time the original complaint was filed due to the revocation of its corporate charter. The circuit judge dismissed the original complaint and amended complaint with prejudice.
Appellants Bibbs and Mason appealed to the court of appeals, and the court of appeals affirmed. Bibbs v. Community Bank, 101 Ark. App. 462, 278 S.W.3d 564 (2008). The appellants petitioned this court for review, which this court granted. When we grant review, we treat the appeal as if it were originally filed in this court. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
I. Appellants’ Standing
For their first point on appeal, Bibbs and Mason claim that the circuit judge erred in finding that they lacked standing to file the original.lender-liability complaint on August 8, 2005. They assert that their cause of action accrued after Bibbs filed bankruptcy on August 25, 2003 and that, because of this, his cause of action was not the “property of the estate,” as defined in the Bankruptcy Code. Next, they contend that Mason had standing because he filed Chapter 13 bankruptcy four months after he filed for Chapter 7 in 2005, and under the Bankruptcy Code, a trustee is not granted the exclusive right to prosecute the debtor’s cause of action in a Chapter 13 bankruptcy. As an additional point, Mason seeks to distinguish Fields v. Byrd, 96 Ark. App. 174, 239 S.W.3d 543 (2006), a case the circuit judge relied on in his ruling, because Mason scheduled his lender-liability suit against Community Bank as part of his Chapter 7 bankruptcy and did not conceal it as the debtor had done in Fields. Finally, Bibbs maintains he had standing because Mr. Dowden, his bankruptcy trustee, ratified the filing of the original complaint.
The question of standing is a matter of law for this court to decide, and this court reviews questions of law de novo. Pulaski County v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007).
A debtor’s commencement of a Chapter 7 bankruptcy creates an estate consisting of all of the debtor’s legal and equitable interests in property. 11 U.S.C. § 541(a)(1) (2008). Once a bankruptcy trustee is appointed to administer the debtor’s estate, the trustee has the exclusive right to prosecute causes of action that are the property of that estate. 11 U.S.C. §§ 323, 704(1). Causes of action that accrue prior to the filing of a petition for relief under the Bankruptcy Code are property of the estate. See Bratton v. Mitchell, Williams, Selig, Jackson & Tucker, 302 Ark. 308, 788 S.W.2d 955 (1990) (citing Vreugdenhil v. Hoekstra, 773 F.2d 213 (8th Cir. 1985)). A debtor lacks standing to maintain, on his or her own behalf, a suit belonging to the estate unless that cause of action has been abandoned by the trustee. Id.
a. Bibbs’s standing.
We first address the appellants’ contention that Bibbs’s claim accrued after he filed for Chapter 7 bankruptcy. If true, his cause of action would not be the property of the bankruptcy estate and, thus, Bibbs would have standing to file his complaint against Community Bank on August 8, 2005.
The crux of Bibbs ’s lender-liability complaint is that Community Bank’s actions concerning the repayment of the $375,000 loan forced him to declare bankruptcy. This necessarily implicates pre-bankruptcy conduct on Community Bank’s part. Bibbs, moreover, admits as much in both his complaint and his deposition testimony. As one example, during his deposition, Bibbs testified: “It is my belief that the bank forced me into bankruptcy. If the bank would not have done all the things I complain of in my lawsuit, I would not have had to file bankruptcy.”
Bibbs’s assertion that some of Community Bank’s alleged misconduct occurred after he filed bankruptcy does not change this conclusion. It is well established that a cause of action accrues the moment the right to commence an action comes into being. Quality Optical of Jonesboro, Inc. v. Trusty Optical, L.L.C., 365 Ark. 106, 225 S.W.3d 369 (2006). It is clear to this court that Bibbs’s cause of action arose out of the alleged misconduct of Community Bank concerning its strict enforcement of the loan agreement’s April 25, 2003 due date, which, by his own assertion, forced Bibbs into bankruptcy. In short, because his cause of action accrued before Bibbs’s bankruptcy filing, the cause of action is the property of his bankruptcy estate. We hold that, as a result, Bibbs lacked standing to file the lender-liability lawsuit.
The appellants also contend that Bibbs had standing to sue because the filing of the suit against Community Bank was “ratified for administrative purposes” by his trustee, Mr. Dowden, as set forth in his affidavit, and through the filing of the amended complaint joining the trustees as plaintiffs on March 22, 2007. Appellants’ authority for this point is the following language from Bratton: “In this case, there is no evidence that the bankruptcy trustee abandoned this claim or that the trustee joined in or ratified Bratton’s filing of this complaint in circuit court. In fact, the evidence in the record indicates the contrary.” 302 Ark. at 309, 788 S.W.2d at 956 (emphasis added). The appellants also cite Rule 17(a) of the Arkansas Rules of Civil Procedure, which reads in part that no action shall be dismissed until a reasonable time has been given for the real party in interest to ratify commencement of the action.
We first address ratification by the trustee under the Bankruptcy Code. As already noted, the Bankruptcy Code provides that the trustee has the exclusive right to prosecute lawsuits belonging to the estate in a Chapter 7 bankruptcy. See 11 U.S.C. §§ 323, 704(a)(1). The only exception exists in cases of abandonment by the trustee in a Chapter 7 bankruptcy after a potential claim has been scheduled as an asset. See 11 U.S.C. § 554; Bratton, supra. The appellants point to no provision in the Bankruptcy Code supporting ratification by the trustee in an amended complaint after an original complaint is filed by the debtor and the statute of limitations has passed. Hence, we hold that any subsequent ratification of Bibbs’s lender-liability suit under these facts did not cure the standing deficiency under the Bankruptcy Code.
There is another reason why the ratification argument fails. This court has held that a complaint filed by a party without standing in a wrongful-death action is a nullity. See Hubbard v. Nat’l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007) (wrongful death complaint filed by administratrix two weeks before her appointment was a nullity because administratrix did not have standing to pursue the claim prior to appointment); St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002)(a survival complaint filed by patient’s family was a nullity where the family lacked standing to pursue the survival action after administrator had been appointed). At the time the lawsuit against Community Bank was filed on August 8, 2005, Bibbs lacked standing under the Bankruptcy Code and the complaint, under the reasoning of Hubbard and St. Paul Mercury Insurance Company, was therefore a nullity with no legal force or effect. It is illogical to conclude that a trustee can ratify something that, as far as the law is concerned, is void and never existed.
We are mindful of the fact that Rule 17(a) of the Arkansas Rules of Civil Procedure, which provides for suits being prosecuted in the name of the real party in interest, contemplates ratification. Rule 17(a) provides in pertinent part:
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Ark. R. Civ. P. 17(a) (emphasis added). Yet, even if the original complaint was not deemed to be a nullity for lack of the debtors’ standing, we disagree that Mr. Dowden, as trustee, could ratify Bibbs’s original complaint after the fact and thereby legitimize his debtors’ standing under these facts.
Because the Arkansas Rule of Civil Procedure 17(a) mirrors Federal Rule 17(a), we turn to the Federal Advisory Committee’s notes for guidance. According to the Advisory Committee Note to Fed. R. Civ. P. 17, Rule 17(a) “should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed. R. Civ. P. 17, Advisory Committee’s Notes to the 1966 Amendments (emphasis added). Accordingly, most courts have applied this part of Rule 17(a) only when the plaintiff brought the action in his or her own name because determination of the real party in interest was difficult or when an understandable mistake was made. See, e.g., Crowder v. Gordons Transps., Inc., 387 F.2d 413 (8th Cir. 1967) (plaintiffs mistake was “understandable and excusable” where case involved a conflicts-of-law question with respect to whether Arkansas or Missouri law applied, and each state’s wrongful-death statute designated a different person as the real party in interest). See also Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11 (2d Cir. 1997) (holding district court erred in failing to permit substitution of plaintiffs to relate back under Rule 15(c) and 17(a) where Advanced Magnetics was mistaken about the legal effect of a shareholder assignment). This court has recognized the “understandable mistake” requirement of Rule 17(a) by inference. See Rhuland v. Fahr, 356 Ark. 382, 392, 155 S.W.3d 2, 9 (2004) (Rules 15 and 17 were inapplicable where “no such understandable mistake occurred”).
In the instant case, when the original complaint was filed on August 8, 2005, the real parties in interest were Bibbs’s and Mason’s bankruptcy trustees. We have held in this opinion that the Bankruptcy Code clearly provides that a trustee, and only a trustee, has standing to prosecute causes of action that are property of the Chapter 7 bankruptcy estate. 11 U.S.C. §§ 323, 701(1). The determination of the real party in interest was not difficult for the appellants in this case; nor was there an understandable or excusable mistake by Bibbs and Mason in this regard. See Rhuland, supra (not understandable mistake when wrongful-death statute specifically detailed who may bring suit). Accordingly, ratification by Bibbs’s trustee did not cure Bibbs’s standing deficiency under Rule 17(a) or breathe new life into his defunct pleading. We conclude for this additional reason that Bibbs clearly lacked standing at the time the original complaint was filed.
b. Mason’s standing.
In the appellants’ reply brief, they claim that the lender-liability lawsuit was abandoned to Mason, because Mason scheduled the lawsuit as an asset in his Chapter 7 filing on February 8, 2005, and the bankruptcy estate was closed on May 24, 2005, without the lawsuit being administered. They emphasize that, unless otherwise ordered by the court, any scheduled property that is not administered at the time of the closing of the estate is considered abandoned to the debtor. They direct this court to 11 U.S.C. § 554(c), which reads:
(c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
As the lender-liability lawsuit was abandoned to Mason, he contends he had standing to prosecute the litigation.
We refuse to address this argument for two reasons. Our initial reason is that Mason makes the argument for the first time in his reply brief on appeal. This is too late. See Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001) (“We do not consider arguments raised for the first time in a reply brief because the appellee is not given a chance to rebut the argument.”). Secondly, though the circuit judge made a finding in his judgment of no abandonment, appellants did not argue section 554(c) to the circuit judge in either their brief opposing summary judgment or in their motion for reconsideration. See Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006) (“[W]e will not consider an argument raised for the first time on appeal.”). The appellants’ argument to the circuit judge in their response brief solely regarded judicial estoppel and did not address abandonment under section 554(c) and its effect on Mason’s standing.
In their petition for review, appellants contend that they did not have the opportunity to argue the abandonment/standing point under section 554(c) before the circuit judge due to the circuit judge’s decision to proceed with the summary-judgment hearing without their counsel being present. What occurred at the hearing, however, does not change the fact that appellants raised the abandonment argument for the first time in their reply brief on appeal, thus precluding Community Bank from responding. See Maddox, supra. As already mentioned, appellants could have raised the abandonment argument in their brief to the circuit judge in support of their response to the summary-judgment and dismissal motions or in their motion for reconsideration, and they failed to do so.
We are aware that Mason reopened his Chapter 7 bankruptcy estate on July 25, 2006, which might suggest that any previous abandonment by Mason’s trustee was revoked by the new filing. Courts are generally in agreement that unadministered assets that are abandoned to a debtor under section 554(c) are not automatically “reeled back into the estate” by reopening the case. See, e.g., In re Menk, 241 B.R. 896 (1999); 9E Am. Jur. 2d Bankruptcy § 3748, p. 23 (2006).
Nor do we agree that filing a Chapter 13 bankruptcy in 2005 four months after filing the original Chapter 7 bankruptcy gave Mason standing to prosecute a scheduled lender-liability suit on August 8, 2005. This, again, is in the nature of an abandonment argument under section 554(c), which was not made to the circuit judge or made to this court until the reply brief.
II. Relation Back of Amended Complaint
For their second point on appeal, Bibbs and Mason contend that the circuit judge erred in finding that their amended complaint did not relate back to the filing of their original complaint under Rule 15(c) of the Arkansas Rules of Civil Procedure. Community Bank responds that because Bibbs and Mason lacked standing to sue, their original complaint was a nullity and therefore the amended complaint adding the trustees as plaintiffs cannot relate back to a void complaint. They cite Rhuland v. Fahr, supra.
This court has held that for the relation-back doctrine to apply there must be valid pleadings to amend. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, supra. Bibbs and Mason lacked standing when they filed their original complaint; thus, the original complaint was a nullity. See Hubbard v. Nat’l Healthcare of Pocahontas, 371 Ark. at 452, 267 S.W.3d at 578 (“[a]ppellant’s complaint was a nullity because she did not have standing” at the time it was filed). Accordingly, when appellants filed their amended complaint in 2007, there was not a valid original complaint to amend and, thus, nothing to which the amended complaint could relate back.
Moreover, this court held in St. Paul that an amended complaint that substitutes out the original plaintiffs and replaces them with entirely new plaintiffs does not constitute an amendment to the original complaint but rather is the filing of a new lawsuit. 348 Ark. at 206, 73 S.W.3d at 589. Here, the appellants attempted to cure the deficiency of their original complaint by joining their bankruptcy trustees as parties plaintiff in their amended complaint. However, because the appellants were not the real parties in interest at the time of either the filing of the original complaint or the filing of the amended complaint under Rule 17(a), as discussed above, the joinder of the bankruptcy-trustees in the amended complaint had the effect of substituting entirely new plaintiffs. This was in the nature of filing a new action and is barred by the statute of limitations. We affirm the circuit judge on this point.
III. Appellants’ Motion for Reconsideration
For their final point on appeal, Bibbs and Mason urge that the circuit judge erred by denying their motion for reconsideration following the summary-judgment and dismissal hearing when appellants’ counsel was not present. Appellants urge that the circuit judge’s decision to continue with the summary-judgment and dismissal hearing in the absence of appellants’ counsel and despite conflicting correspondence from the circuit judge and opposing counsel regarding the hearing date constitutes reversible error.
We first note that this court has held that a lawyer and litigant must exercise reasonable diligence in keeping up with the progress of a case. Francis v. Protective Life Ins. Co., 371 Ark. 285, 265 S.W.3d 117 (2007); Arnold v. Camden News Publ’g Co., 353 Ark. 522, 110 S.W.3d 268 (2003). In a letter dated May 8, 2007, the circuit judge notified all counsel that the summary-judgment and dismissal hearing was scheduled for May 21, 2007. To be sure, Community Bank’s counsel erroneously notified appellants’ counsel that the hearing was set for July 10, 2007, which confused matters. But if any confusion arose from the circuit judge’s conflicting orders or by an inconsistent date in opposing counsel’s confirmation letter, appellants’ counsel should have inquired to determine the correct date and time of the hearing from the circuit judge. Furthermore, at the hearing on May 21, 2007, the circuit judge refused to hear oral argument from Community Bank’s lawyer on the motions due to the absence of appellants’ counsel and stated that he would rely solely on the pleadings and the parties’ briefs in making his decision. The judge concluded the hearing by orally granting summary judgment and dismissal in favor of Community Bank.
Appellants next filed a motion for reconsideration on May 31, 2007, in which they contested the holding of the hearing and raised their standing arguments. It was only after this motion that the circuit judge entered his order granting summary judgment and dismissal.
Although, admittedly, conducting a hearing without the presence of counsel for a party is an irregular and questionable procedure, the circuit judge took pains to assure that Community Bank would not receive an unfair advantage due to the absence of appellants’ counsel. In addition to that, appellants’ counsel had the opportunity to raise any pertinent arguments in the motion for reconsideration filed before the entry of the order.
As a final matter, appellants have not shown this court how they were specifically prejudiced by their counsel’s absence at the hearing. Rule 56 of the Arkansas Rules of Civil Procedure does not give the parties an automatic right to a summary-judgment hearing. It is discretionary with the circuit judge. Moreover, as we have noted, the circuit judge took steps to assure no unfair prejudice to appellants occurred. Without unfair prejudice, we are hard pressed to reverse the circuit judge’s judgment. See Villanueva v. CNA Ins. Co., 868 F.2d 684 (5th Cir. 1989) (though the court viewed with suspicion a summary-judgment conference which terminated the litigation without plaintiffs counsel being present, the record reveals no unfair prejudice to the plaintiff). Taking all the factors together, we conclude there was no abuse of discretion by the circuit judge in going forward with the hearing.
Affirmed.
Appellants do not challenge the circuit judge’s finding that the statute oflimitations had run at the time the amended complaint was filed.
Appellants do not deny receiving this letter.
MJ Construction did not challenge on appeal the circuit judge’s standing ruling regarding its revoked charter.
Appellants also argue on appeal that the circuit judge “may have” erroneously applied the doctrine of judicial estoppel. It is not apparent to this court that the circuit judge ever discussed the issue of judicial estoppel. Accordingly, we decline to address it.
Appellants take issue with the circuit judge’s statement that he had not read all the documents “exhaustively.” Again, appellants have not illuminated this court on how this specifically resulted in prejudice to them. They also refer to “evidence” submitted at the hearing. The only “evidence” was a marked exhibit of the judge’s letter setting the hearing date and Community Bank’s counsel’s reference to the revoked charter of MJ Construction Company. Again, we fail to see how this prejudiced the appellants. | [
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Jim Hannah, Chief Justice.
This appeal involves a dispute J over the ownership of church property located at 2311 Bailey Road, in Little Rock. Appellants Arkansas Annual Conference of the African Methodist Episcopal Church, Inc. (Arkansas AME) and African Methodist Episcopal Church, Inc. (National AME), collectively referred to as AME, appeal the judgment of the Pulaski County Circuit Court granting a petition to quiet title in appellee New Direction Praise and Worship Center (New Direction) and ordering the return of personal property, including a 1999 Dodge van. AME also appeals the circuit court’s denial of its motion for supersedeas bond. We affirm the circuit court.
The real property that is the subject of this dispute is described as follows:
Starting at the existing NW comer of the NE 1/4 of the NW 1/4, Section 21, Township 1 South, Range 12 West, Pulaski County, Arkansas, and ran thence East 158.7 feet to the point of beginning; from the point thus established run thence South 208.7 feet; thence East 158.7 feet; thence North 208.7 feet; thence West 158.7 feet to the point of beginning, containing 3/4 acres, more or less.
On December 27, 1969, Will Bailey, the owner of the real property, contracted to sell the real property to the Sand Hill AME Church (Sand Hill) for the price of $750, of which $500 was paid at the time of the contract of sale and $250 was payable in three years. Onjuly 15, 1971, Geraldine Jones, as the administratrix of the Estate of Will Bailey, Deceased, conveyed by deed the real property to “George Bailey, Fred Jones, and Harris Bailey as Trustees of the Sand Hill AME Church, and to their successors in office.”
In 1971, the membership of Sand Hill consisted of members of the Bailey family. Will Bailey was the uncle of Geraldine Jones, the administratrix of his estate. Two of the trustees named as grantees in the administratrix deed, George Bailey and Harris Bailey, were nephews of Will Bailey and brothers of Geraldine Jones. The remaining trustee named as grantee in the administra-trix deed, Fred Jones, was the husband of Geraldine Jones.
Between 1971 and 1981, the members of Sand Hill saved to build a meeting house on the real property. Through the volunteer labor of relatives of the Bailey family, a concrete block meeting house was constructed in 1981. Vivian Nooner and Brenda Kay Webb, who were members of the congregation between 1971 and 1981, both testified that they could not recall any financial assistance from the Arkansas AME or the National AME for the purchase of the real property or the construction of the meeting house. Revered Eugene Brannon, the presiding elder of the Little Rock District of the AME, testified that he recalled a rally of area congregations of AME churches to raise funds for the purchase of the real property at issue and a second rally for the construction of the meeting house. Reverend Brannon stated that he could not, however, recall the amount of funds raised for the benefit of Sand Hill.
In 1981, the membership of Sand Hill still consisted of members of the Bailey family. According to Nooner, of the trustees of Sand Hill shown on the cornerstone of the meeting house constructed in 1981, all were members of the Bailey family. Nooner stated that of the stewards listed on the cornerstone, all but one, the pastor’s wife, were members of the Bailey family.
No testimony or documents were introduced by any party regarding the formation of Sand Hill or its initial connection with the National AME. Nooner testified that, while Sand Hill accepted pastors from Arkansas AME, it did not associate exclusively or even primarily with other AME churches. She stated that many of the churches with which Sand Hill associated were Baptist churches.
Between 1971 and 1995, the membership of Sand Hill numbered approximately ten to twelve members. Beginning in 1995 and continuing until 2004, the presence of a new pastor, Reverend Bowers, significantly increased the membership, and the number of members eventually grew to between fifty and sixty. When Reverend Bowers left Sand Hill in 2004, the membership again decreased to approximately ten to twelve members.
By August 2005, Sand Hill was encountering financial difficulties. AME policy requires AME churches to pay assessments on a quarterly basis, with the amount of assessments based on the number of members. Although its membership had decreased following Reverend Bowers’s departure, the Arkansas AME did not reduce Sand Hill’s quarterly financial obligations. By August 31, 2005, Sand Hill had only $1.26 left in its bank account.
On October 9, 2005, ten members of Sand Hill met and voted unanimously to disassociate from the AME. Thereafter, the members continued to meet for worship service in the meeting house on the real property. The members also met again to organize a new church and voted unanimously to incorporate a new church. The trustees of the congregation incorporated New Direction Praise and Worship Center, Inc., on November 15, 2005. The members also voted unanimously to deed to New Direction title to the real property and to transfer title in a 1999 Dodge van to New Direction. A quitclaim deed was prepared by the trustees of New Direction on November 17, 2005, and the deed was filed of record on November 18, 2005. The members were unable to find the title to the Dodge van, so title was not then transferred to New Direction.
On November 26, 2005, the members of New Direction invited Reverend Brannon, the presiding elder of the Little Rock District of the AME, to meet with them at the property. They delivered a written notice to Reverend Brannon, informing him that the members of the congregation formerly known as Sand Hill AME Church were no longer affiliated or associated with AME. Reverend Brannon asked for a key to the building, and one of the members gave him a key. Other members retained their keys, but when they later returned to the meeting house, they found that their keys no longer opened the door. Arkansas AME subsequently sent an AME minister in training to conduct services in the meeting house. New Direction then brought a civil action for ejectment, quiet title, and replevin. The circuit court found in New Direction’s favor, and AME now brings this appeal.
Subject-Matter Jurisdiction and the Neutral-Principles Approach
The first issue that must be decided is whether the circuit court had subject-matter jurisdiction to resolve this dispute over church property. AME claims that the circuit court was without subject-matter jurisdiction because this matter could not be decided by neutral principles of law without resort to interpretation of church religious beliefs, practices, customs, organization, and polity. AME contends that the circuit court’s decision is in violation of the Establishment Clause of the United States Constitution, as well as the similar guarantees of article 2, sections 24 and 25 of the Arkansas Constitution. New Direction asserts that the circuit court properly exercised jurisdiction over this dispute about church property because the dispute could be decided by applying neutral principles of law.
Where the existence of subject-matter jurisdiction is a question of constitutional interpretation, the standard of review is de novo. Viravonga v. Wat Buddha Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008); Weiss v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007). In Viravonga, we stated:
Both the United States Constitution and the Arkansas Constitution prohibit the courts from becoming involved in disputes between members of a religious organization that are “essentially religious in nature,” because the resolution of such disputes “is more properly reserved to the church.” Gipson v. Brown, 295 Ark. 371, 374, 749 S.W.2d 297, 298 (1988).
Nonetheless, “[i]t is unquestionably the duty of the courts to decide legal questions involving the ownership and control of church property.” Holiman v. Dovers, 236 Ark. 211, 219, 366 S.W.2d 197, 204 (1963) (supplemental opinion denying rehearing). As the United States Supreme Court has noted,“[t]he State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively.” Jones v. Wolf, 443 U.S. 595, 602 (1979). Yet, even when a property dispute is involved, courts must refrain from settling the dispute “on the basis of religious doctrine and practice” and instead apply only “neutral principles of law.” Id. at 602-03; see also Ark. Presbytery of Cumberland Presbyterian Church v. Hudson, 344 Ark. 332, 339, 40 S.W.3d 301, 306 (2001) (expressly adopting the United States Supreme Court’s neutral-principles approach); Gipson, 295 Ark. at 377, 749 S.W.2d at 300 (applying the neutral-principles-of-law analysis to determine whether there was jurisdiction over an internal church dispute).
While “it is impermissible for the civil courts to substitute their own interpretation of the doctrine of a religious organization for the interpretation of the religious organization,” Belin, 315 Ark. at 67, 864 S.W.2d at 841, a court may nonetheless have to examine documents of a partially religious nature, such as church constitutions, in resolving a property dispute. Jones, 443 U.S. at 604. For example, a court can look at “(1) the language of the deeds; (2) the terms of the local church charters; (3) the state statutes governing the holding of church property; and (4) the provisions in the constitution of the general church concerning the ownership and control of church property” in determining whether a local church or one of its governing bodies holds title to church property. Hudson, 344 Ark. at 338, 40 S.W.3d at 306 (citing Jones, 443 U.S. 595).
The United States Supreme Court has acknowledged that applying the neutral-principles approach to an examination of documents relating to a religious institution is not “wholly free of difficulty.” Jones, 443 U.S. at 604. In performing its examination, the court must be careful to scrutinize such documents in “purely secular terms,” deferring to the religious institution itself for the resolution of doctrinal issues. Id.; see Hudson, 344 Ark. at 339, 40 S.W.3d at 306-07.
Viravonga, 372 Ark. at 568-71, 279 S.W.3d at 49-50 (footnotes omitted).
While it is clear that civil courts have subject-matter jurisdiction to hear cases involving church property disputes, courts must settle the dispute by applying neutral principles of law. We must now determine whether the circuit court did so in this case.
The first element of the neutral-principles approach is to review the language of the deed. When we are called upon to construe deeds and other writings, we are concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed. Hudson, supra. In reviewing instruments, our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when its language is ambiguous, uncertain, or doubtful. Id. Here, the language of the deed indicates that the local trustees of Sand Hill hold title to the property. As previously stated, on July 15, 1971, Geraldine Jones, as the administratrix of the Estate of Will Bailey, Deceased, conveyed by deed the real property to “George Bailey, Fred Jones, and Harris Bailey as Trustees of the Sand Hill AME Church, and to their successors in office.” (Emphasis added.) Nothing in the language of the deed reflects that Sand Hill was held in trust for Arkansas AME or National AME.
As to the second element, the terms of local church charters, AME states that the 1968 edition of The Doctrine and Discipline of the African Methodist Episcopal Church (Book of Discipline) functions as both its charter and its general church constitution; therefore, our review of the second element will also serve as our review of the fourth element. Section 2 of the Book of Discipline, titled General Church Property, provides, in relevant part:
1. For the security of our meeting houses and the premises belonging thereunto, let the following plan of a deed of settlement be brought into effect in all possible cases wherever the law will permit it in a State.
2. If necessary, each Annual Conference may make such modifications in the deed as may be required by the laws of any State, so as to firmly secure the premises to the African Methodist Episcopal Church.
3. No personal or real property whatsoever of the A.M.E. Church in any foreign district or parts thereof shall be purchased, disposed of, sold, or otherwise encumbered except by the written consent of the presiding bishop and trustees elected by the Annual Conference in which the property is located.
4. The incorporation of all our churches, where the law will permit it, should be attended to as soon as possible. And in every corporation of the A.M.E. Church the pastor shall be president of the corporation and of the board of trustees, and the method of electing trustees shall be the same as prescribed in the Book of Discipline. Every pastor shall see that the provision is a part of the articles of incorporation.
Also included in Section 2 is a form for a trust deed for local church property that provided the property was to be held in trust for the use of the members of the National AME under the rules of the Book of Discipline. In addition, the form for a trust deed provided:
Whereas some of the states and territories (and countries) have special acts on their statue [sic] book governing religious bodies, therefore the meaning and intent of this chapter wherever it refers to the law of the State or Territory is to be subject to the said state law and not to any individual church corporation that is now or may be incorporated.
The record reveals that Sand Hill was not incorporated. National AME did not introduce any evidence that it was involved in the purchase of the property. Arkansas AME did not introduce any evidence that it approved Sand Hill’s purchase of the real property in 1969, at the time of the contract of sale, or in 1971, at the time of the delivery of the administratrix deed. In addition, the administratrix deed did not follow the form of the trust deed included in the Book of Discipline.
We next consider the third element, Arkansas statutes governing the holding of church property. Arkansas Code Annotated section 18-11-201 (Repl. 2003) provides:
All lands and tenements, not exceeding forty (40) acres, that have been, or hereafter may be, conveyed by purchase to any person as trastee in trust for the use of any religious society within this state, either for a meeting house, burying ground, campground, or residence for their preacher, shall descend with the improvements and appurtenances in perpetual succession in trust to the trustee or trustees as shall, from time to time, be elected or appointed by any religious society, according to the rales and regulations of the society.
Likewise, Arkansas Code Annotated section 18-11-202 (Repl. 2003) provides:
The trustee or trustees of any religious society shall have the same power to defend and prosecute suits at law or in equity and do all other acts for the protection, improvement, and preservation of trust property as individuals may do in relation to their individual property.
New Direction points to statutory law regarding trusts. Pursuant to Arkansas Code Annotated section 28-73-402 (a) (Supp. 2007), a trust is created only if:
(1) the settlor has capacity to create a trust;
(2) the settlor indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:
(A) a charitable trust;
(B) a trust for the care of an animal, as provided in § 28-73-408; or
(C) a trust for a noncharitable purpose, as provided in § 28-73-409;
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.
The language of the 1971 deed indicates that Will Bailey intended to create a trust for Sand Hill AME Church, see Arkansas Code Annotated section 28-73-402(a), which he was authorized to do pursuant to Arkansas Code Annotated section 18-11-201 (Repl. 2003). Nothing in the language of the deed suggests that Will Bailey had the intention of creating a trust in favor of either the National AME or the Arkansas AME. Neither the National AME nor the Arkansas AME had an ownership interest in the property at the time of the conveyance, and neither was a party to the transaction.
Based upon the application of our neutral-principles approach and based upon our de novo review of the language of the 1971 deed, the provisions in the Book of Discipline, and Arkansas statutory law governing property and trusts, we hold that the circuit court did not err in quieting title in favor of New Direction, ordering AME’s ejectment, and concluding that New Direction was entitled to replevin of the personal property located on the real property and the 1999 Dodge van.
Validity of the 2005 Deed
AME next contends that, even assuming that the trustees of Sand Hill had the authority to convey the property to New Direction, the conveyance must fail because the deed was invalid. The circuit court concluded, and we agree, that AME had no right, title, or interest in the real property at issue. Accordingly, AME lacks standing to challenge the November 2005 conveyance of the property to New Direction. As such, we do not address AME’s arguments on this point.
Supersedeas Bond
AME contends that the circuit court erred in denying AME’s posttrial motion for setting of a supersedeas bond to stay proceeding pending appeal. Because we affirm the circuit court’s judgment in favor of New Direction, AME’s argument regarding the setting of a supersedeas bond is moot.
Motions for Award of Costs and Attorneys’ Fees on Appeal
New Direction filed a Motion for Award of Costs and Attorneys’ Fees Incurred By Reason of Appellants’ Insufficient Abstract and Addendum. AME filed a response and, additionally, it filed a Motion for Award of Costs and Attorneys’ Fees Incurred by Reason of Appellee’s Insufficient Abstract and Addendum. Pursuant to Arkansas Supreme Court Rule 4-2(b)(l) (2008), “[w]hen the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party’s noncompliance with this Rule.” After considering the merits of this case, we do not believe that either of the parties’ abstracts and addendums are insufficient to the extent that costs should be imposed by this court. Accordingly, we deny both motions.
Affirmed.
The 1968 edition was in effect at the time of the 1971 conveyance to Sand Hill. According to the testimony of Reverend Brannon, National AME’s plan of tide and governance of property of the local AME congregations was essentially carried forward without change in the editions of the Book of Discipline that were published every four years after 1968. At oral argument, counsel for AME stated that, while the 1968 edition of the Book of Discipline may have governed the original transaction, the Book of Discipline was later amended to include a provision stating that all local church property would be held in trust for the National AME. Counsel asserted that the members of Sand Hill “consented to the amendment” by their silence. Nevertheless, counsel conceded that AME did not make this argument before the circuit court. | [
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Per Curiam.
Appellants Roger and Ruth Anderson, owners of Anderson Auto Salvage, appeal from an order entered by the Craighead County Circuit Court that vacated a decision by the Arkansas State Highway Commission (Commission). Because the Andersons submitted a brief without a proper abstract in violation of Ark. Sup. Ct. R. 4-2(a)(5), we order rebriefing.
Rule 4-2(a)(5) provides, in pertinent part:
The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.
The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup. Ct. R. 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the fifing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficien cies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
The Andersons’ brief in this case is deficient for multiple reasons. The Andersons failed to abstract key portions of a hearing before the Commission held on January 23, 2007; specifically, the Andersons did not abstract arguments presented on the issue of preemption by federal law. Further, the Andersons failed to adequately abstract arguments on preemption and the Commission’s alleged procedural errors that were presented to the circuit court at a hearing held on October 5, 2007. Finally, the Ander-sons’ addendum omits relevant material, including requests for a hearing before the Commission, notice of hearings, BSNF’s petition for review filed in the circuit court, and the parties’ briefs filed in the circuit court. The appellee submitted a supplemental abstract and addendum, which would normally cure the appellant’s deficiencies. See Cortinez v. Ark. Supreme Court Comm. on Prof'l Conduct, 353 Ark. 104, 111 S.W.3d 369 (2003). However, BSNF’s supplemental abstract is also deficient in that it does not condense arguments and testimony presented at hearings held before the Commission and the circuit court; instead, BSNF essentially reproduced the transcript.
Because the Andersons have failed to comply with Rule 4-2 (a) (5), we order them to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. If the Andersons fail to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, BSNF shall have an opportunity to revise or supplement its brief in the time prescribed by the Court.
Rebriefing ordered.
The Appellants incorrectly labeled this hearing as “Hearing Before the Arkansas Highway Commission of November 05, 2007” in their briefs Table of Contents. The record shows that this hearing was before the circuit court, and that it was held on October 5,2007. | [
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Per Curiam.
In the mid-1990s, appellees Patrie Brosh, Mark Lunsford, and Mel Anderson started a business, New Century Auto Sales (“New Century”), another appellee to this action, to sell used cars from Wal-Mart parking lots. After developing a business plan, and entering into a lease agreement with Wal-Mart, New Century decided to market its plan. It approached Asbury Automotive Used Car Center, L.L.C. (“Asbury”), the appellant in this action, about purchasing the plan. Asbury expressed interest and ultimately the parties signed the contracts that are the center of this dispute — the Purchase Agreement, whereby Asbury agreed to purchase the business plan from New Century and to enter into the leases with Wal-Mart, and three separate Employment Agreements, whereby Asbury agreed to employ Brosh, Lunsford, and Anderson for an annual base salary of $300,000 per year.
By August 2003, the parties were in dispute, and Asbury terminated its leases with Wal-Mart and its employment contracts with Brosh, Lunsford, and Anderson. As a result, the appellees filed suit against Asbury in Washington County Circuit Court on a breach of contract claim. Asbury answered and filed a motion for a stay of proceedings and to compel arbitration pursuant to arbitration provisions in the disputed contracts. The circuit court held a hearing on the matter, and determined that the arbitration agreements lacked mutuality of obligation and, as a result, denied Asbury’s motion. Asbury filed an interlocutory appeal, and this court affirmed the circuit court, agreeing that the provisions lacked mutuality of obligation. Asbury Auto. Used Car Ctr., L.L.C. v. Brosh, 364 Ark. 386, 220 S.W.3d 637 (2005).
The case was then tried before a jury, which rendered a verdict in favor of Asbury. Following the verdict, appellant filed a motion for attorneys’ fees, pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999), requesting attorneys’ fees and costs from the appellees. The circuit court entered an order denying the appellant’s motion. The order specifically held that section 16-22-308 did not apply because “the parties intended and anticipated that in the event there was a controversy or dispute arising out of or relating to the Agreements, or any breach thereof, then each party would bear their own costs and attorneys’ fees.” The appellant filed a timely notice of appeal.
We are unable to consider appellant’s appeal at this time because its brief is not in compliance with Arkansas Supreme Court Rule 4-2(a). Ark. R. Sup. Ct. 4-2(a) (2008). Our rules require that the appellant include all relevant pleadings, documents, or exhibits, essential to an understanding of the case on appeal, in the addendum portion of the brief. Id. R. 4-2(a)(8). Furthermore, our rules state that:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a) (5) and (8).
Ark. R. Sup. Ct. 4-2(b)(3) (2008). Finally, the rules make clear that an appellee may prepare a supplemental addendum if material on which it relies is not in the appellant’s addendum. Id. R. 4-2(a)(8).
In this case, the appellant failed to include photocopies of the complete Purchase Agreement and Employment Agreement in its addendum. These contracts form the basis of the dispute and are essential to this court’s understanding of the case on appeal. Furthermore, the appellees’ brief relies heavily on the severability provisions of the contracts; however, the appellees did not prepare a supplemental addendum including a copy of the provisions. We note that the complete contracts are not included in the record filed in the instant appeal. However, the appellant may use the pertinent portions of the first record in order to bring its addendum in compliance with Rule 4-2(a)(8). See id. R. 4-2(a)(5) (on a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the transcript filed on any prior appeal); Drymon v. State, 327 Ark. 375, 378, 938 S.W.2d 825, 826-27 (1997) (the relevant portions of the first record do not need to be included in the record filed in the second appeal; the record of the first trial was already filed with the appellate court in the earlier appeal and is a public record that need not be incorporated on the second appeal).
Accordingly, we order appellant to file a substituted brief, curing the deficiencies in the addendum, within fifteen days from the date of entry of this order. After service of the substituted brief, the appellees shall have an opportunity to file a responsive brief in the time prescribed by the supreme court clerk, or to rely on the brief filed in this appeal.
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Per Curiam.
Appellant James Munson, an inmate incarcerated in the Arkansas Department of Correction (“ADC”), filed a petition in Pulaski County Circuit Court for judicial review under Arkansas Code Annotated § 25-15-212 (Repl. 2002) to challenge a disciplinary action against him by the appellee ADC. Appellee moved to dismiss for failure to state a claim upon which relief could be granted under Arkansas Rule of Civil Procedure 12(b)(6). The circuit court granted the motion and appellant has lodged an appeal of that order in this court.
Appellant argues on appeal that the court erred in dismissing the petition, that his petition stated a claim for violation of due process, and that the ADC did not follow its own procedures. In his petition, appellant alleged that, as a result of appellee’s failure to follow its procedures, he had lost class status and certain privileges, and was subjected to isolation for a period of time. Appellant further alleged that the disciplinary action resulted from an ADC officer’s failure to act and that the other inmate involved was not subjected to disciplinary action.
In reviewing the circuit court’s decision on the motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. A trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000).
Here, the appellee first argues that we should affirm dismissal of the petition by the circuit court because judicial review was not available to appellant as an inmate. Appellee urges us to overrule our decision in Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991), holding that Act 709 of 1989, amending the Arkansas Administrative Procedure Act by excluding prison inmates from judicial review of administrative adjudications, unconstitutionally deprives inmates of review of constitutional questions. This court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). It is necessary to uphold prior decisions unless a great injury or injustice would result. Id. at 418, 125 S.W.3d at 157. The court only breaks with precedent when the result is patently wrong and so manifestly unjust that a break becomes unavoidable. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
Here, it is not necessary to consider whether our holding in Clinton v. Bonds is still valid, because it is evident that appellant’s petition did not raise a constitutional question so as to permit judicial review. Appellee also contends that the ADC’s disposition of the matter here did not constitute an order for purposes of section 25-15-212, and, as appellant’s petition did not raise a constitutional question, we agree that it did not.
Appellant contends that his right to due process was violated because the ADC did not follow its own procedures and that issue was raised in his petition. He essentially claims a liberty interest in having the ADC officials follow the procedures. But, appellant does not have a liberty interest in the actual procedures to be administered. See Kennedy v. Blankenship, 100 F.3d 640 (8th Cir. 1996).
Nor can appellant show a substantive due process violation as a result of the sanctions that were imposed by the ADC in the proceeding. To state a case for a substantive due process violation, appellant must have shown an atypical and substantive deprivation that was a dramatic departure from the basic conditions of his confinement. Id.; Sandin v. Conner, 515 U.S. 472 (1995). Appellant’s petition did not set forth any conditions resulting from the proceedings that would show such an atypical and substantive deprivation.
Appellant’s petition alleged the sanctions imposed resulted in a loss of class status and certain privileges, and that he was subjected to isolation for a period of time. Under Kennedy v. Blankenship, claims of segregation from the general prison population do not indicate a dramatic departure from the basic conditions of appellant’s confinement. In Arkansas, there is no liberty interest in good time under the analysis in Wolff v. McDonnell, 418 U.S. 539 (1974). McKinnon v. Norris, 366 Ark. 404, 231 S.W.3d 725 (2006) (per curiam). A loss of class status and privileges such as appellant cited, even if impacting good time, would not compromise a liberty interest.
Appellant’s petition for review did not state that sanctions were imposed that were sufficient to compromise a liberty interest, and unless such sanctions may be imposed, the ADC’s disciplinary proceedings did not invoke due process so as to mandate notice and hearing. Appellant’s petition did not, therefore, show that the ADC’s disposition of the matter did conform to the requirements of the definition of “order” in Arkansas Code Annotated § 25-15-202(5) (Supp. 2007). The proceedings did not therefore result in an order for purposes of judicial review under section 25-15-212.
Considering the facts alleged in the petition as true and viewing those facts in a light most favorable to the plaintiff, appellant failed to allege facts that would support a claim for judicial review under the statute. He did not allege that the ADC imposed sanctions sufficient to raise a liberty interest or due process, and without such a liberty interest at stake, the ADC’s actions did not constitute an order subject to judicial review.
Affirmed.
Brown, J., not participating. | [
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Robert L. Brown, Justice.
Appellant Katie Zimmereb-ner Stehle (“Katie”) appealed the order of the circuit judge denying her motion for change of custody of her daughter, KZ, to the court of appeals. That court reversed the circuit judge’s decision and held that Katie should have primary custody of KZ based on a material change of circumstances. The appellee, KZ’s father, Ernest William (“Billy”) Zimmerebner, petitioned this court for review, and we granted his petition. We affirm the circuit judge’s order, and we reverse the decision of the court of appeals.
On October 4, 2001, Katie and Billy divorced, and Katie was awarded primary custody of KZ. On August 27, 2003, the circuit judge held a hearing on Billy’s motion to change custody of KZ to him. That motion was granted by an order entered on November 10, 2003, which gave Billy primary custody of KZ, subject to visitation by Katie. On July 25, 2006, Katie moved to change custody back to her and asserted that there had been a material change of circumstances. Those circumstances, she contended, were based on these alleged facts: (1) Billy and his then-wife, now Amber Robertson (“Amber”), had been in a physical altercation, and Amber had filed for divorce; (2) KZ and her stepbrother had to “lay on top of’ Amber to “get [Billy] to stop attacking her”; (3) Billy and KZ had been living in Billy’s parents’ home since March 2006, and the sleeping arrangements were inadequate because KZ and Billy shared a room; (4) Billy did not have his own transportation, but used his employer’s vehicle to transport KZ; (5) KZ had been in four different schools since 2003; and (6) on July 2, 2006, Billy dropped KZ at Katie’s house for summer visitation with insufficient asthma medication and failed to respond to Katie’s calls regarding the matter.
The circuit judge heard Katie’s motion on March 20, 2007, and, on March 23, 2007, he issued a letter opinion, giving his reasons for denying it. On April 16, 2007, an order was entered to the same effect. Katie appealed, and on May 21, 2008, a three-judge panel of the court of appeals, in three separate opinions, reversed the circuit judge’s order and held that Katie should have primary custody of KZ.
The following facts in the instant case are undisputed. When Billy and Katie divorced in 2001, KZ was age three and under school age. After custody was awarded to Katie, KZ lived with her in Conway. When Billy was awarded custody of KZ in 2003, he enrolled KZ in school in Greenbrier. Toward the end of the school year in 2004, Billy enrolled KZ in a magnet school in Maumelle, where she completed kindergarten and first grade. Shortly after she started the second grade, Billy and Amber moved to Cabot, and KZ attended public school there for the remainder of her second-grade year. KZ returned with her father to Maumelle, after Billy and Amber’s marriage dissolved in 2006. KZ was enrolled in the third grade at Academics Plus Charter School in Maumelle, the school she attended at the time of the hearing on the change-of-custody petition.
At the hearing before the circuit judge on March 20, 2007, regarding her motion to change custody, Katie testified to the following:
• Despite her many efforts, she was unable to communicate with Billy about KZ because he would not answer her telephone calls or share information with her regarding KZ’s educational or medical issues.
• She attended KZ’s parent-teacher conferences, class parties, and field trips when she was able and regularly visited KZ at school during lunchtime; Billy did not attend KZ’s school functions; rather, Amber had handled those matters.
• KZ was on the honor roll and got As and Bs at school.
• She had often been delinquent in paying Billy court-ordered child support but had paid her arrearages and was current at the time of the hearing.
• On one occasion, Billy dropped KZ off for visitation with inadequate medication, and she had to pay to have it refilled because KZ was no longer receiving medical insurance through the state-funded AR Kids program.
• When she filed the motion, Billy only had one vehicle, insured for work purposes, and, therefore, lacked adequate means to transport KZ.
• After Billy and Amber separated, KZ remained with Amber for six weeks, and Katie was not notified.
• She had remarried and had another child since custody was awarded to Billy.
• She and her husband had recently purchased a newly-constructed house in Vilorda, where KZ had her own room.
• KZ had bonded with her younger half-sister.
• If granted custody, Katie would allow KZ to finish the current school year at the charter school in Maumelle and would consider transferring her to public schools in Vilorda the following year.
• She worked two blocks from the Maumelle charter school, and it would be convenient for KZ to remain enrolled there.
• KZ would attend daycare after school and would return with Katie to Vilonia when she finished work.
• If granted custody, she would keep Billy updated regarding KZ’s school and health information.
Amber testified at the same hearing as follows:
• When she and Billy were married, she provided the day-to-day care for KZ and her other children.
• She went to KZ’s parent-teacher conferences and other school events without Billy.
• She was responsible for communicating with Katie.
• Billy and his parents, but especially his mother, said bad things about Katie in KZ’s presence.
• During the marriage, Billy was abusive to her, and KZ witnessed these acts of violence.
• KZ would sometimes “throw a fit” before going to Katie’s house, and once returned “with a large part of her hair missing.”
• She had previously testified against Katie and had since changed her mind about Katie’s fitness as a mother.
Billy also took the stand and testified as follows:
• He worked as a plumbing contractor and lived with his parents in their three-bedroom house, in which KZ had her own room.
• His mother took KZ to school each morning, and his father picked her up from school every afternoon.
• He returned most evenings about 30 minutes after KZ got home from school, and then the two of them worked on her homework and read together.
• KZ had always been an honor roll student.
• After finishing her school work, KZ had chores and then often played with her best friend who lived across the street.
• He played on the trampoline with KZ and was teaching her to ride a bike.
• He often did not answer the phone when Katie called because she would call as many as “30 times” in a row and would “threaten” him when he answered.
• He had not said bad things about Katie in KZ’s presence and had admonished Amber when she had done so.
• KZ returned many times from Katie’s house without having brushed her teeth.
• KZ had “resisted” going to Katie’s house and had acted unhappy when she returned from visitation.
• Amber “gets pretty crazy when she gets mad,” and he was never violent toward Amber except as necessary to defend himself.
• He owned a vehicle in addition to his work truck and was insured to use both for personal use.
• When he told Amber he would request custody of their two children, she told him she would testify on Katie’s behalf in the instant custody proceeding.
Billy’s mother, Debbie Zimmerebner, testified that:
• Billy was very active with KZ and his other two children; KZ and Billy read together every night, played on the trampoline together, and went bike riding.
• Billy made sure KZ was clean and that she had brushed her teeth.
• She had never heard Billy make negative remarks about Katie in front of KZ and he had stopped Amber from doing so.
• Katie called her house “non-stop,” after Amber and Billy separated.
• On one occasion, she met Katie in a parking lot to retrieve something KZ needed, and Katie screamed foul language at her.
• Sometimes she referred to Katie as “the witch” but never in KZ’s presence.
• KZ had her own bedroom at their house, decorated in “all pink cause that’s [KZ’s] favorite color.”
Finally, Billy’s father, David Zimmerebner, told the court under oath that:
• He picked KZ up after work each day, and she would change her clothes, get a snack, and start working on her homework.
• He would help her occasionally with her assignments, but sometimes she would “save[ ] it” for when Billy returned from work because “she wanted him to work with her.”
• Billy provided the day-to-day necessities for KZ.
• Billy tucked KZ in at night.
After hearing all the testimony, the circuit judge observed from the bench that he was concerned about the lack of stability in KZ’s life. He said that it bothered him that Billy had moved with KZ so often and “always seems to find his way back to his mamma and daddy’s.” He also expressed concern that Katie only paid her child support when she “decided to bring somebody back to court.” He concluded the hearing by telling the parties that he was going to “weigh some of this credibility and some of the testimony” and would then make a decision regarding the motion for change of custody.
On March 23, 2007, the circuit judge filed his letter order, outlining his decision to deny Katie’s motion. The judge said that he “had an opportunity to review [his] notes, the exhibits, and to reflect” about the best interest of the child in the instant case. He noted his concern that, despite the fact that there are times when Billy does engage and assist with the care of KZ, “if there is somebody else who will do it he is more than willing to turn that task over.” The judge commented on Billy’s tendency to “abdicate his responsibility as a parent.” He made it clear that “there is no question that while the child has been in his custody she has continued to thrive, is a good student, and in spite of the conflicts that have arisen not only between her mother and father but her extended family she has continued to do well.”
With respect to Katie, the judge said that she “has stepped up to the plate” and paid the court-ordered child support “when she was in a position to seek relief from the Court.” He found that Katie is engaged in KZ’s life, attends school functions when she knows of them, and meets KZ for lunch on a frequent and consistent basis. The judge also noted that he was “proud to see that she has since our last hearing taken on a regular job.” He found that Katie and her husband had improved their financial situation, bought a house, and made “a home for themselves and” their other child.
The circuit judge next addressed each of the issues Katie raised in her motion for change of custody. With respect to the allegations of violence between Billy and Amber, he said that, while it was “absolutely not” a good situation at the time, there was no testimony that any violence was directed toward KZ, and the “situation has been diffused in that the ex-wife [Amber] is no longer involved.” He found that KZ’s sleeping arrangements were adequate at Billy’s parents’ house, and the only concern he had regarding Billy and KZ’s living situation was Billy’s “tendency to disengage.” The judge found Katie’s complaint regarding Billy’s automobile to be a “nonissue” and was similarly unconcerned with Katie’s allegations that Billy brought KZ to her house with inadequate medicine.
The judge noted that “another significant issue in [his] mind” was how many times KZ had moved with Billy since the last order. He observed that when he awarded custody to Billy, “the motivating factor in [his] decision to change custody was the stability Billy seemed to show over Katie.” He then said that Billy’s “advantage” had “disappeared” due to the frequent moves. Nevertheless, he concluded that “the child seems to have adjusted and is currently doing well in the Academic’s Plus charter school in Maumelle,” and that “her grades seem to speak well of her family’s commitment to her education.” The judge also noted that the school was close to where KZ was living and to where Katie was working. After laying out his findings, the judge concluded that while he was “not terribly impressed with the parenting skills of either party,” it was his “determination that [Katie] has failed to prove that a change of circumstances exists which would justify changing custody of the minor child at this point.” Following that, the judge filed an order to that effect on April 16, 2007.
When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See, e.g., Hamilton v. Barrett, 337 Ark. 460, 462, 989 S.W.2d 520, 521 (1999). It is well settled in Arkansas that a judicial award of custody will not be modified unless it is shown that the circumstances have changed such that a modification of the decree would be in the best interest of the child. See, e.g., Campbell v. Campbell, 336 Ark. 379, 383, 985 S.W.2d 724, 727 (1999). In order to avoid the relitigation of factual issues already decided, the courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. Id. at 384, S.W.2d at 727. This court has stated that courts generally impose more stringent standards for modification in custody than for initial determinations of custody in order to promote stability and continuity in the life of the child. See Alphin v. Alphin, 364 Ark. 332, 340, 219 S.W.3d 160, 165 (2005). The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id.
We have summarized our standard of review for equity cases, and specifically child custody cases, with regard to de novo review and the clearly erroneous standard:
We review chancery cases de novo, but will only reverse if the chancellor’s findings were clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. We give due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. In cases involving child custody, great deference is given to the findings of the chancellor. This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children. The best interest of the child is the polestar in every child custody case; all other considerations are secondary.
See Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002) (citations omitted).
We take this opportunity to clarify further our standard of review for child custody cases, as well as other equity cases, and to dispel any confusion that may exist concerning de novo review and our clearly erroneous standard.
Equity cases are reviewed de novo. See ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). This means the whole case is open for review. Id. This does not mean, however, and we emphasize this point, that findings of fact by the circuit judge in equity cases are simply dismissed. They are not. The clearly erroneous standard, cited above and set out in our rules of civil procedure, governs if the circuit judge has made findings of fact. As Rule 52(a) states:
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of witnesses.
Ark. R. Civ. P. 52(a) (2008).
In determining whether the circuit judge clearly erred in a finding, the appellate court may look to the whole record to reach that decision. See ConAgra, 342 Ark. at 674, 30 S.W.3d at 727 (on de novo review of record, court held chancery court clearly erred in finding information at issue qualified as a trade secret); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979) (chancery court reached erroneous conclusion based on de novo review of entire record). But, to reiterate, to reverse a finding of fact by a circuit judge, that judge must have clearly erred in making that finding of fact, which means the reviewing court, based on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Ford, 347 Ark. at 491, 655 S.W.3d at 436.
To summarize, de novo review does not mean that the findings of fact of the circuit judge are dismissed out of hand and that the appellate court becomes the surrogate trial judge. What it does mean is that a complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so.
In the instant case, it is abundantly clear to this court that the circuit judge’s findings, supporting his denial of Katie’s motion for change of custody, were not clearly erroneous. We acknowledge, and it is beyond dispute, that some circumstances have changed since Billy was awarded custody. Billy moved frequently with KZ, he and Amber divorced following alleged physical conflict in their marriage, and Katie remarried and improved her financial situation. Despite these facts, the circuit judge found that they did not constitute a material change in circumstances so as to militate a grant of physical custody of KZ to Katie. To repeat, the judge specifically found that, while the parenting skills of both Katie and Billy needed improvement, KZ “has continued to thrive” in Billy’s custody and was “adjusted and is currently doing well” in school. He also observed that the school is “close to where the child is living and is also close to where the child’s mother works.”
What is particularly meaningful to this court is that the circuit judge has had these parties before him for many years, going back to Katie and Billy’s divorce in 2001. He has heard from the various witnesses on multiple occasions and was in a much better position than this court to observe their demeanor and assess their credibility. See Ford, 347 Ark. at 491, 65 S.W.3d at 436 (in custody cases it is especially important to give great weight to the trial court’s superior position to observe the parties). In the instant case, the judge dutifully took the matter under advisement in order to review his notes, the exhibits, and to reflect on the testimony in order to determine whether the motion should be granted. The resulting letter order specifically responded to each of Katie’s concerns and directed the parties to take various actions to “improve the situation.”
In sum, we hold that the circuit judge did not clearly err in finding that Katie failed to prove a material change of circumstances so as to justify a change of custody for KZ. We are particularly swayed by the circuit judge’s finding that KZ has continued to thrive in Billy’s custody and is a good student despite conflicts between Billy and Katie.
We affirm the order of the circuit judge and reverse the court of appeals.
Affirmed. Court of appeals reversed.
KZ was born on September 9,1998, and was eight-and-a-half years old when the judge’s order was entered.
Billy married Amber on October 19, 2001, and they divorced on December 20, 2006. Billy and Amber separated in March 2006.
Two of KZ’s previous teachers testified that Katie was involved with them in KZ’s education, and that Billy was not.
Katie initially said that KZ’s grades were “mediocre” and then acknowledged during cross-examination that she had made honor roll.
On cross-examination, Katie testified that she lacked personal knowledge that Billy’s work vehicle was insured only for work purposes.
Amber recounted one specific incident in which Billy allegedly threw her against the wall, after which KZ and her step brother “threw themselves over” her, and KZ said “don’t hurt my mamma anymore.”
He testified that he responded to her by saying, “After all the times you’ve bad mouthed [Katie] in court and bad mouthed her to teachers?” According to Billy, her response was, “You’re right. The gloves are off.”
The judge specifically found that it was an “isolated event” and it was not “threatening to the child, so long as Katie took action and spent money.”
In addition to denying Katie’s motion, the judge ordered that both Billy and Katie enroll in and complete a parenting class within six months. He also directed them to attend an anger management class within six months and ordered that a mutual retraining order, prohibiting the parties from calling each other names and degrading each other, be continued. The judge ordered that the parties must “communicate regarding the needs of this child in writing, preferably by email” and the emails should be “short and to the point.” | [
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Paul Danielson, Justice.
In this third appeal of this matter, appellant Scipio Johnson appeals from the order of the Workers’ Compensation Commission, which found that he was performing employment services for both appellee Bonds Fertilizer, Inc. and the Bonds Brothers Trust, also known as the Farm, at the time of his accident on June 28, 1995. See Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753 (2006) (Johnson II); Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003) (Johnson I). Mr. Johnson asserts four points on appeal: (1) that the Commission’s finding that he was performing work for Bonds Fertilizer on the date of his injury was not supported by substantial evidence; (2) that the Administrative Law Judge (ALJ) and the Commission erroneously exceeded this court’s mandate in Johnson II; (3) that the ALJ and the Commission erred by applying the doctrines of dual employment, loaned employee, simultaneous employment, and joint employment; and (4) that the ALJ and the Commission erred in denying his motion to dismiss appellee Bonds Brothers, Inc., and in failing to strike its motions and briefs. We affirm the Commission’s order.
As set forth in both Johnson I and Johnson II, this matter arises from an accident in which a train collided with a truck near Tamo, Arkansas, on June 28, 1995. Mr. Johnson was a passenger in the truck and was seriously injured when he was thrown from the vehicle upon impact. Mr. Johnson and his wife, Bessie Johnson, filed suit in the Jefferson County Circuit Court against Union Pacific Railroad, Bonds Fertilizer, Inc., and Bonds Brothers, Inc., alleging negligence and a loss of consortium. The circuit court granted summary judgment to both Bonds Fertilizer, Inc. and Bonds Brothers, Inc. and granted partial summary judgment to Union Pacific, on the issue of inadequate warning devices. Following a jury trial against Union Pacific on the remaining issue of negligence, the jury returned a verdict in favor of Union Pacific. Mr. Johnson appealed to this court, and we affirmed the grant of partial summary judgment to Union Pacific, but reversed the grant of summary judgment to Bonds Fertilizer, remanding the matter to the circuit court with leave for Mr. Johnson to pursue a determination before the Commission as to whether he was performing employment services for Bonds Fertilizer or for the Farm on the date of the accident. See Johnson I, supra.
Following our remand, Mr. Johnson sought a determination from the Commission; however, the ALJ and the Commission, in a 2-1 decision, agreed with the argument of Bonds Fertilizer and the Farm that since the statute of limitations had run, the Commission had no further jurisdiction in the matter and was without authority to issue an advisory opinion. See Johnson II, supra. On appeal, this court held that the Commission erred in both of its conclusions and reversed and remanded the matter to the Commission for a determination “as to whether Johnson was performing employment services for Bonds Fertilizer or the Farm on the date of the accident.” 365 Ark. at 137, 226 S.W.3d at 756.
Since our remand in Johnson II, a hearing was held before the ALJ on July 21, 2006, and on January 10, 2007, the ALJ issued its order. In that order, the ALJ quoted the facts from our opinion in Johnson I, stating:
The record reflects, that, on the date of the accident,Johnson was an employee of both the Farm and Bonds Fertilizer. Both companies, along with Bonds Brothers, were either owned or controlled by Kenny Bonds and Brian Bonds. Kenny and Brian each owned fifty percent of Bonds Brothers. Bonds Brothers is the sole shareholder of Bonds Fertilizer. The Farm is a partnership comprised of Kenny Bonds Farms, Brian A. Bonds Trust, and Bonds Brothers. When Johnson performed work for either the Farm or Bonds Fertilizer, he reported to the same supervisor, Allan Maxey. Some weeks, Johnson would perform tasks for both employers, but he would receive only one paycheck, from the company that he did the most work for that week. The week before the accident and the week of the accident, Johnson was paid by Bonds Fertilizer.
On the morning of the accident, Johnson was performing work for the Farm, because one of the Farm’s employees was out sick. That afternoon, Johnson was supposed to deliver a load of fertilizer that was coming in at 3:00 p.m. for Bonds Fertilizer. In the meantime, around 1:00 p.m., Maxey instructed Johnson to pick up a tractor for the Farm and begin laying irrigation pipe. Maxey instructed Johnson to ride with Frances Birmingham, an employee of Bonds Fertilizer. Alyston Luster, an employee of the Farm, also rode with them. The truck they were riding in was owned by Bonds Brothers, and it had a 1,000-gallon water tank hooked to the back. f
Following the accident, Kenny Bonds reported Johnson’s accident to the insurance carrier for Bonds Fertilizer. The insurance carrier approved the claim and paid approximately $61,000 in medical and temporary total disability benefits to or on behalf of Johnson. Johnson accepted these benefits for over nine months, from July 1995 to .April 1996. Subsequently, in February 1998, Johnson made a claim for additional benefits, fisting as his employer: “Bonds Fertilizer, Inc. or Bonds Brothers Farms, Inc.” That claim was later withdrawn by Johnson, in favor of the civil suit.
352 Ark. at 539-40, 104 S.W.3d at 746-47. In addition, the ALJ’s order set forth the relationship between Bonds Brothers Trust, Bonds Brothers, Inc., and Bonds Fertilizer:
In the deposition of Kenny Bonds,Jr., the relationship between the Bonds entities is explained. Bonds Brothers Trust is the operating partnership that runs the farm and was composed of Kenny Bonds, Kenny Bonds’ Farm, Brian Bonds’ Trust, and Bonds Brothers, Inc. It was commonly known as “The Farm.” Bonds Brothers, Inc. is a corporation which is a partner in the Trust and owns the equipment and buildings leased and used by the Farm. Bonds Fertilizer, Inc. is a wholly owned subsidiary of Bonds Brothers, Inc. and operates a separate fertilizer business. Kenny Bonds, Jr. is the general partner of Bonds Brothers Trust, president of Bonds Brothers, Inc., and president of Bonds Fertilizer, Inc.
The ALJ determined that the preponderance of the evidence demonstrated that Mr. Johnson was paid by both Bonds Fertilizer and the Farm, “although he would get a check from only one of them for any particular pay period.” The ALJ further determined, based on the evidence, that at the time of. the accident, both Mr. Johnson and the driver of the truck were paid by Bonds Fertilizer and that Mr. Johnson was paid by Bonds Fertilizer both the week before and the week of the accident. Accordingly, the ALJ concluded, because Bonds Fertilizer paid Mr. Johnson and was not reimbursed, there was strong evidence that Bonds Fertilizer was Mr. Johnson’s employer at the time of the accident.
The ALJ then discussed the doctrines of joint employment and dual employment, concluding that the credible evidence in the case “demonstrate [d] that Johnson was under the control of both employers at the same time when he was directed by his supervisor to ride with Birmingham to help retrieve a tractor on the Farm while waiting for the next load of fertilizer.” In addition, the ALJ found that all three factors for dual employment were “plainly satisfied when the undisputed facts [were] examined.”
In reviewing the loaned-employee doctrine, the ALJ noted that, even assuming Mr. Johnson was performing work for the Farm at the time of his accident, “there was no question but that he was loaned by Bonds Fertilizer to the Farm .at that time.” It further found that it was clear from the evidence that Mr. Johnson “worked for both the fertilizer business and the farm on a regular basis and shifted from one to the other on an as-needed basis.”
Finally, the ALJ considered the simultaneous-employment doctrine and concluded that
Johnson was performing a duty for the common benefit of both the Farm and Bonds Fertilizer. He was traveling from one place of business to that of the other, as he was required to do in order to perform properly his assigned duties for the day — which included both fertilizer and farm work. Therefore, based on the credible evidence, I find that Johnson was the joint employee of both the Farm and Bonds Fertilizer and was performing employment services for the benefit of both employers at the time of the accident.
Accordingly, the ALJ’s order set forth the following findings of fact and conclusions of law:
1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2. The preponderance of the evidence demonstrates that claimant was simultaneously employed by Bonds Brothers Trust a/k/a The Farm and Bonds Fertilizer, Inc. on June 28, 1995.
3. The preponderance of the evidence demonstrates that claimant was performing employment related services for both employers at the time of the accident on June 28, 1995.
Mr. Johnson appealed the ALJ’s decision to the full Commission, which affirmed and adopted the decision of the ALJ, including all findings and conclusions, in a 2-1 decision. Mr. Johnson now appeals the Commission’s decision.
I. Substantial Evidence
For his first point on appeal, Mr. Johnson asserts that there was not substantial evidence to support the Commission’s finding that he was performing work for Bonds Fertilizer at the time of the accident. Mr. Johnson avers that the evidence militated against the finding by the Commission and established that he was performing employment services solely for the Farm at the time of his injuries.
Bonds responds that Mr. Johnson was a dual employee for both Bonds Fertilizer and the Farm on the date of the accident. Nonetheless, Bonds avers, even if Mr. Johnson was an employee of the Farm at the time, he was a loaned employee by Bonds Fertilizer to the Farm. In addition, Bonds asserts, Mr. Johnson was a simultaneous employee of Bonds Fertilizer and the Farm.
Our standard of review for decisions by the Commission is well established:
On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirms that decision when it is supported by substantial evidence. It is for the Commission to determine where the preponderance of the evidence lies; upon appellate review, we consider the evidence in the light most favorable to the Commission’s decision and uphold that decision if it is supported by substantial evidence. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. It is exclusively within the province of the Commission to determine the credibility and the weight to be accorded to each witness’s testimony. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission.
Arbaugh v. AG Processing, Inc., 360 Ark. 491, 493-94, 202 S.W.3d 519, 521 (2005) (internal citations omitted).
It is well settled that the ALJ’s findings are irrelevant for purposes of appeal, as this court is required by precedent to review only the findings of the Commission and ignore those of the ALJ. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). However, here, as in Freeman, we must review the findings of the ALJ because the Commission made absolutely no independent findings of its own; rather, it simply adopted each of the findings made by the ALJ. See id. In the instant case, the ALJ determined that Mr. Johnson was performing employment-related services for both Bonds Fertilizer and the Farm at the time of the accident. We, then, must determine whether that decision was supported by substantial evidence.
This court has previously acknowledged the doctrines of lent employees and dual employment, quoting from Larson’s Workmen’s Compensation Law:
§ 48.00 When a general employer lends an employee to a special employer, the special employer becomes Hable for workmen’s compensation only if
(a) The employee has made a contract for hire, express or implied, with the special employer;
(b) The work being done is essentially that of the special employer; and
(c) The special employer has the right to control the details of the work.
South Arkansas Feed Mills, Inc. v. Roberts, 234 Ark. 1035, 1038, 356 S.W.2d 645, 647 (1962) (quoting 1 Larson, Workmen’s Compensation Law§ 48.00, at710)). In Daniels v. Riley’s Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), we noted that the section further provided: “When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.” 310 Ark. at 759, 840 S.W.2d at 178.
Here, the ALJ’s order specifically found that all three factors for dual employment were satisfied, stating:
(a) at the time of the accident, Johnson worked for both Bonds Fertilizer and “the Farm.”
(b) the work being done on the day of the accident was essentially that of the Farm, although by his own testimony Johnson was also working for Bonds Fertilizer.
(c) both Bonds Fertilizer and the Farm had the right to control the details of Johnson’s work, depending on what Johnson was doing.
In Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993), we examined whether the appellant was a loaned employee of appel-lee’s construction company. In doing so, this court relied on the dual-employment doctrine, as set forth in Daniels, supra, and observed that the most significant question regarding a loaned employee is which company has direction and control of the employee. See Cash, supra. With respect to this doctrine, the ALJ found as follows:
It is undisputed that on the day of the accident, Johnson was taking the place of a sick employee of the Farm. It is likewise undisputed that before the accident, Johnson had returned from lunch and was waiting to haul a load of fertilizer for Bonds Fertilizer, when he was told by his supervisor that the load had been cancelled. Johnson was told that he would not have any fertilizer to haul until 3 p.m., and directed to go pick up a tractor with poly-pipe on it to put out at the Farm. Under these undisputed facts, Johnson was a “loaned” or “temporary” employee of the Farm at the time of the accident, and the same analysis applies as under the “dual employment” doctrine. See Cash v. Carter, 312 Ark. 41, 45-46, 847 S.W.2d 18 (1993).
We hold that the Commission’s decision was supported by substantial evidence. The evidence demonstrates that Mr. Johnson worked for both Bonds Fertilizer and the Farm and that on weeks in which he worked for both, he received only one paycheck from the company for which he did the most work. Both the week before the accident and the week of the accident, Bonds Fertilizer paid Mr. Johnson. On the morning in question, Mr. Johnson worked for the Farm, and that afternoon, at 3:00 p.m., he was to deliver a load of fertilizer for Bonds Fertilizer. However, at 1:00 p.m., his supervisor, who supervised his work for both Bonds Fertilizer and the Farm, directed Mr. Johnson to pick up a tractor for the Farm and to begin laying irrigation pipe. While riding with an employee of Bonds Fertilizer and an employee of the Farm, Mr. Johnson was injured when the truck in which he was riding was struck by a train. This evidence, viewed in the light most favorable to the Commission, was substantial evidence supporting the Commission’s finding that Mr. Johnson was performing employment services for both Bonds Fertilizer and the Farm as a dual employee and a loaned employee. Accordingly, we affirm the Commission’s decision.
II. Law of the Case
Mr. Johnson argues, for his second point on appeal, that the law-of-the-case doctrine barred the Commission from determining any issues other than for whom he was employed at the time of the accident. He contends that the ALJ and the Commission exceeded this court’s mandate by examining the four doctrines of dual employment, joint employment, loaned employee, and simultaneous employment. Bonds counters that the ALJ merely conducted the necessary proceedings to answer this court’s question and made its conclusions based upon a preponderance of the evidence, which the Commission then adopted.
Mr. Johnson’s argument is without merit. We have long held that the trial court, upon remand, must execute the mandate. See Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, 356 Ark. 494, 156 S.W.3d 249 (2004). In Wal-Mart, we reviewed the history of the mandate rule, stating:
The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated, by the Supreme Court.
356 Ark. at 497, 156 S.W.3d at 252 (quoting Fortenberry v. Frazier, 5 Ark. 200, 202 (1843)). Citing to the Third Circuit Court of Appeals, we noted that the mandate rule “binds every court to honor rulings in the case by superior courts.” Id. at 497-98, 156 S.W.3d at 252 (quoting Casey v. Planned Parenthood, 14 F.3d 848, 856 (3d Cir. 1994)). Accordingly, “[a] trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.” Id. at 498, 156 S.W.3d at 252 (quoting Casey, supra (quoting Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985))).
Here, Mr. Johnson avers that the ALJ and the Commission somehow exceeded this court’s mandate in Johnson II. In Johnson II, we specifically reversed and remanded the case “to the Commission to make a determination as to whether Johnson was performing employment services for Bonds Fertilizer or the Farm on the date of the accident.” 365 Ark. at 137, 226 S.W.3d at 756. In turn, the record reflects that the Commission then remanded the matter to an ALJ “to conduct any and all necessary proceedings deemed appropriate to determine the employment relationship between the parties and to determine for whom the claimant was performing employment services at the time of his injury.”
It is clear to this court that the Commission, as well as the ALJ, merely executed this court’s mandate upon remand. Directions by an appellate court to the trial court, here, the Commission, as expressed by the opinion and mandate must be followed exactly and placed into execution. See Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998). Following Johnson I, the Commission did not consider whether Mr. Johnson was working for Bonds Fertilizer, Inc. or the Farm at the time of the accident. Instead, it declared that the statute of limitations had run and that it was without jurisdiction. In Johnson II, we specifically directed the Commission to determine for which employer Mr. Johnson was working at the time of the accident. It was, therefore, necessary for the Commission and the ALJ to consider the doctrines examined in making that determination, and they in no way exceeded our mandate. For these reasons, we affirm this point as well.
III. Misapplication oj the Doctrines
Relying on language in Cash, supra, Mr. Johnson urges that his activities for the Farm were separate from those for Bonds Fertilizer and that, on the day of the accident, his activities could be separately identified with the Farm. For that reason, he claims, none of the four doctrines examined by the ALJ were applicable to the facts of his case. Bonds urges that under the undisputed facts of the case, Mr. Johnson was a loaned or temporary employee of the Farm at the time of the accident.
In Cash, supra, quoting Daniels, supra, we said:
Employment may also be “dual” in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer or the other. When this separate identification can clearly be made, the particular employer whose work was being done at the time of injury will be held exclusively liable.
312 Ark. at 46, 847 S.W.2d at 20 (quoting Daniels, 310 Ark. at 759, 840 S.W.2d at 178)). In this case, the ALJ found that
it [was] clear from the evidence that Johnson worked for both the fertilizer business and the farm on a regular basis and shifted from one to the other on an as-needed basis. . . . The instant case is clearly distinguishable from the cases in which the court has found that the claimant was an employee of two employers, but the work was separable.
Again, a review of the evidence in the light most favorable to the Commission, as already set forth above, reveals that there was substantial evidence to support the Commission’s decision that Mr. Johnson’s activities at the time of the accident were not separately identifiable for either employer. Mr. Johnson had the same supervisor for both jobs; was working for the Farm, but was also to work on fertilizer jobs that day; and was paid by Bonds Fertilizer for his work that week. Hence, we affirm the Commission on this point.
IV Denial of Motions to Dismiss and to Strike Britfs
For his final point on appeal, Mr. Johnson maintains that the Commission and the ALJ erroneously denied his motions to dismiss Bonds Brothers, Inc. and to strike its briefs. He contends that Bonds Brothers, Inc. had no interest in the litigation and that merely because it owned stock in Bonds Fertilizer, Inc. did not entitle it to appear as a party. Bonds maintains that the ALJ and the Commission acted within their discretion by denying Mr. Johnson’s motions to ensure a full adjudication of all issues properly before the Commission.
Following the ALJ’s order of January 10, 2007, but prior to its order of December 6, 2007, the Commission issued a separate order in which it denied Mr. Johnson’s motions to dismiss and to strike. We hold that the Commission did not err in doing so.
In the affidavit of Kenny Bonds, which is a part of the record and was before the Commission, Mr. Bonds stated that
Bonds Brothers, Inc. is the sole shareholder of Bonds Fertilizer, Inc. Bonds Brothers, Inc. owns all of the equipment, including vehicles, used by Bonds Fertilizer, Inc. and Bonds Brothers Trust. Bonds Brothers Trust, a partnership of Kenny M. Bonds, Jr., Bryan A. Bonds Tmst, and Bonds Brothers, Inc., is the operating entity for the farming operation as required by Farm Service Agency.
Moreover, Mr. Johnson, at the time he originally filed his suit in Jefferson County Circuit Court, saw fit to bring suit against Bonds Brothers, Inc., as well as Bonds Fertilizer. Following Mr. Johnson’s appeal of the circuit court’s order in Johnson I, we determined that the Commission had exclusive, original jurisdiction to determine whether Mr. Johnson’s injuries were covered by the Workers’ Compensation Act and that for which employer Mr. Johnson was working at the time of the accident was an issue of fact for the Commission to resolve. To resolve that issue of fact, the Commission determined that the participation of Bonds Brothers, Inc. was necessary as Bonds Brothers, Inc. “[was] and continue[d] to be a necessary party” in the matter. We, therefore, cannot say that the Commission’s decision was erroneous. Accordingly, we affirm the Commission on this point as well.
Affirmed.
In addition to Bonds Fertilizer, the following are also appellees, in accord with the pleadings filed before, and the decisions by, the Commission: Bonds Brothers, Inc., AGRI Group-Comp SI Fund, and CNA Insurance Company. For the sake of clarity, the appellees will be jointly referred to as Bonds unless it is necessary to distinguish the parties.
Bonds Brothers, Inc. was not a party to the first appeal. See Johnson Í, supra.
This court’s opinion further observed that it was not disputed that Mr. Johnson’s injuries occurred while he was performing employment services. See Johnson I, supra.
In his brief, Mr. Johnson acknowledges that this court’s recitation of the facts in Johnson I “is correct and in accordance with the testimony of witnesses.”
Because we hold that there was substantial evidence to support the Commission’s decision on the bases of both the dual-employment and loaned-employee doctrines, we need not reach the additional bases relied upon by the ALJ and affirmed by the Commission. We, therefore, offer no comment on the doctrines of joint employment or'simultaneous employment.
In addition, we note that along with the arguments already set forth within this first point, Mr. Johnson further asserted within his substantial-evidence challenge that: (1) the representations of Kenny Bonds, Jr., President of Bonds Fertilizer, Inc., and Michelle Miller, its attorney, were binding pivotal admissions on the ultimate issue; (2) Bonds Fertilizer, Inc. was prohibited from now taking the position that Mr. Johnson was not performing work for the Farm at the time of his injuries under the doctrines of judicial estoppel and the doctrine against taking inconsistent positions; and (3) Bonds Fertilizer, Inc., the Farm, and Bonds Brothers, Inc. are separate and distinct legal entities. In Johnson if, we remanded the matter to the Commission solely to determine “whether Johnson was performing employment services for Bonds Fertilizer or the Farm on the date of the accident.” 365 Ark. at 137, 226 S.W.3d at 756. A review of the ALJ’s order reveals no specific rulings on these arguments. Therefore, we decline to address them. | [
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Jim Hannah, Chief Justice.
The City of Centerton appeals an October 11, 2007 order declaring the City’s annexation ordinance invalid. We lack jurisdiction to hear this appeal.
The order appealed from was entered on October 11, 2007. Centerton filed a posttrial motion to amend the judgment on October 14, 2007. A posttrial motion extends the time within which to file the notice of appeal to thirty days from the date the posttrial motion is decided. See Ark. R. App. P.-Civ. 4(b)(1). However, if the circuit court fails to decide the motion within thirty days, the motion is deemed denied as of the thirtieth day. Id.
The thirty days within which the circuit court had to decide the motion ran November 23, 2007, and the court did not decide the motion until November 30, 2007. Thus, the motion was deemed denied on November 23, 2007. Centerton had thirty days from November 23, 2007, or until December 26, 2007, to file the notice of appeal. It was filed on December 28, 2007. Pursuant to Ark. R. App. P. — Civ. 4(a), the notice of appeal had to be filed within thirty days of entry of the judgment appealed from. See Murchison v. Safeco, 367 Ark. 166, 238 S.W.3d 11 (2006). This court may not hear the appeal. It is dismissed.
No briefs filed. | [
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Jim Gunter, Justice.
This appeal arises from a decision of the Conway County Circuit Court denying Appellant Linda Stokes’s motion to suppress. We reverse and remand.
On July 31, 2007, Appellant and a passenger, Amy Howard, were traveling along Interstate 40 when Officer Eric Lee noticed that the vehicle was traveling below the speed limit at 60 miles per hour. Officer Lee testified that once he got behind the vehicle, it made a hasty exit off of the interstate into Plumerville. Officer Lee could see Appellant and the passenger watching him out of the mirrors. According to Lee, “the vehicle turned left and went North on Highway 92 to Plumerville.” He followed the vehicle and it eventually came to a complete stop in the road. He testified that it seemed like they were looking for a place to turn, which piqued his interest. The vehicle continued on Highway 92 and turned left on Ballpark Road. Lee’s interest was piqued again because Ballpark Road is an all-black neighborhood with a dead-end street and the occupants of the vehicle were two white females. He ran the vehicle’s tag, and discovered that it was registered in Arizona. He continued down Highway 92 past Ballpark Road and observed in his mirror that the vehicle was backing down Ballpark Road. He turned around and the vehicle began driving down the road again. Lee then got behind the vehicle and initiated a traffic stop.
Lee testified that he stopped Appellant’s vehicle for careless driving because the vehicle had backed down a city street. When Lee approached the vehicle, he observed that Appellant was “visibly shaking” and did not have identification on her. She told Lee that she did not have identification because her license was suspended. Lee returned to his vehicle and discovered that Appellant had a suspended driver’s license out of Arizona and an expired license out of California. Lee then approached the vehicle again and asked Appellant to step out of the vehicle. He began asking her questions about where they were going and what they were doing in the area. He also asked Howard questions and testified that “the stories they were giving me were not matching up and I didn’t feel comfortable with both of them out there at that point.” He placed Appellant under arrest for driving on a suspended license. As he was placing her in the back of his car, he asked her if they were transporting anything illegal. He testified that Appellant would not make eye contact with him and looked away when he asked her if there were any drugs in the car. He then began speaking to Howard, who had the same reaction as Appellant.
Lee called a tow truck to tow the vehicle because neither Appellant nor Howard had driver’s licenses. Another officer arrived and contacted the rental company about the vehicle. According to the rental company, the vehicle was not supposed to be taken out of Arizona, and neither Appellant nor Howard was listed as the actual renter of the vehicle. Lee then conducted an inven tory of the vehicle and found marijuana in the trunk. Lee did not issue a citation for careless driving.
Appellant was charged with possession of marijuana with intent to deliver. On September 13, 2007, Appellant filed a motion to suppress the evidence found in the rental vehicle. The circuit court denied the motion to suppress. Appellant entered a guilty plea conditioned on the appeal of the motion to suppress. Appellant now brings this appeal.
This case was certified to us from the Arkansas Court of Appeals because it involves a perceived inconsistency in the decisions of the Arkansas Supreme Court, issues needing clarification or development of the law or overruling of precedent, and issues of substantial public interest pursuant to Arkansas Supreme Court Rule l-2(b)(2), (4), and (5) (2008).
For her sole point on appeal, Appellant asserts that the circuit court erred in denying Appellant’s motion to suppress. Specifically, Appellant contends that (1) the evidence was obtained during an unlawful stop of Appellant’s vehicle and (2) even if there was probable cause to initiate the traffic stop, “the evidence obtained as a result of Appellant’s arrest for a misdemeanor, rather than the issuance of a summons, was in direct violation of Arkansas Rules of Criminal Procedure 7.1 andshouldbe deemed fruit of the poisonous tree.”
The State responds, asserting that Appellant lacks standing to challenge the suppression of the evidence. In the alternative, the State contends that (1) there was probable cause to initiate the traffic stop; (2) Appellant did not obtain a ruling regarding her argument that a summons was not issued for her arrest; (3) even if there were a ruling, Rule 7.1(b) has no application here; and (4) the circuit court correctly refused to suppress the evidence seized from the car because the marijuana would have inevitably been discovered through the inventory search even if there were no arrest.
In her reply brief, Appellant asserts that the State cannot raise its standing argument for the first time on appeal. In the alternative, Appellant contends that she does have standing, citing Brendlin v. California, 551 U.S. 249 (2007).
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2007). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.
I. Standing
We must first address whether the State’s standing argument can be raised for the first time on appeal. We have held that the issue of standing to challenge the legality of a search and seizure is not a jurisdictional issue that can be raised for the first time on appeal. See State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). In Houpt, however, the State, as appellant, raised the issue of the appellee’s standing to challenge the legality of a search and seizure in order to obtain a reversal. We have never held that an appellee cannot raise an issue for the first time on appeal in an effort to obtain an affirmance. See Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). We have a long-standing rule that we may affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. See Mamo Transp., Inc. v. Williams, 375 Ark. 97, 289 S.W.3d 79 (2008). Here, the State is asking us to affirm the circuit court’s denial of Appellant’s motion to suppress, therefore, we hold that the State can raise the issue of standing for the first time on appeal.
We now turn to the issue of whether Appellant has standing to contest the legality of the search and seizure. We have held that an appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. State v. Bowers, 334 Ark. 447, 976 S.W.2d 379 (1998); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognized that expectation as reasonable. Littlepage, supra.
In Littlepage, the appellant was driving a rental vehicle when he was stopped by police. We said that in order for the appellant to assert his Fourth Amendment rights, he must show that he gained possession from the owner or someone with authority to grant possession. Id. According to the rental agreement, the vehicle was rented to a third party, and neither Littlepage nor his passenger was authorized to use the vehicle. We held that the appellant had no standing to challenge the officer’s search as unconstitutional because he had no expectation of privacy in the car. Id.
In Bowers, we held that the appellant who was a passenger in a vehicle had standing to contest the search of the vehicle after an illegal stop. None of the parties contested the fact that the initial stop was illegal. We distinguished Bowers from Littlepage and our other previous cases in that Bowers involved an illegal stop, and the search for and seizure of the drugs directly followed the stop. We said that the search on the heels of an illegal stop presents a different issue with respect to occupants of a vehicle. Id. (citing Dixon v. State, supra). “Similarly, the occupants of a vehicle have standing to assert their own Fourth Amendment rights, independent of the owner’s, such as a challenge to the initial stop, or the seizure of their person.” Id. (quoting Dixon).
Appellant relies on Brendlin v. California, 551 U.S. 249 (2007), for her assertion that she has standing to challenge the legality of the stop. In Brendlin, officers stopped a car to check its registration without reason to believe that it was being operated unlawfully. The United States Supreme Court held that a passenger, like the driver, of an automobile that was pulled over by a police officer for a traffic stop was “seized” under the Fourth Amendment from the moment the automobile came to a halt on the roadside and, therefore, was entitled to challenge the constitutionality of the traffic stop. Id. Here, in determining whether Appellant was seized, the relevant inquiry is whether a reasonable person in Appellant’s position when the car stopped would have believed herself free to “terminate the encounter” between the police and herself. Brendlin, 551 U.S. at 255. Under the facts in this case, a reasonable person in Appellant’s position would not have believed that she was free to terminate the encounter between Officer Lee and herself. Because Appellant was seized for Fourth Amendment purposes, she has standing to challenge the stop’s constitutionality.
This case was certified to us because of a perceived inconsistency between our holding in Littlepage and the holdings in Bowers and Brendlin. There is no conflict between the decisions because the issue of standing as it relates to the seizure of a person was not an issue in Littlepage. Rather, the issue in Littlepage was whether the appellant had standing to challenge the search of a vehicle, which involved the seizure of property and the expectation of privacy. Because the issues related to standing in Littlepage and the issues related to standing in Bowers and Brendlin were different, we find no inconsistency in the decisions.
II. Traffic Stop
Appellant asserts that the evidence obtained was the result of an illegal and unconstitutional traffic stop and should be deemed fruit of the poisonous tree. In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005). In assessing the existence of probable cause, our review is liberal rather than strict. Laime, supra. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Id.
Here, Officer Lee testified that the vehicle driven by Appellant was driving 60 miles an hour, which was below the posted speed limit. The vehicle then made a “hasty exit” off the 112 off-ramp into Plumerville. Lee could see both Appellant and the passenger watching him though their mirrors. Lee said it looked like they were trying to decide which way to turn. After the vehicle turned, Lee followed the vehicle and it “almost made a complete stop in the road and again it looked like they were looking for a place to turn.” The vehicle turned left on Ballpark Road. Lee said this piqued his interest because it was an all-black neighborhood and the occupants of the vehicle were two white women. Lee ran the tag on the vehicle and discovered it was from Arizona. He continued past Ballpark Road and observed in his mirror that the vehicle was backing down Ballpark Road. When Lee turned his car around, the vehicle began driving back down the road. Lee then pulled the vehicle over.
Lee testified that he pulled the car over for careless driving. Arkansas Code Annotated § 27-51-104 (Supp. 2007) covers careless and prohibited driving, stating in pertinent part:
(a) It shall be unlawful for any person to drive or operate any vehicle in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise, or in such a manner as to evidence a failure to maintain proper control on the pubhc thoroughfares or private property in the State of Arkansas.
The State contends that Appellant violated subsection (a) because she operated the vehicle “in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise” by driving her car in reverse down the street. With regard to whether backing down a street was careless, Officer Lee testified, “I don’t believe any cars were coming. There were no cars behind me. There is always a danger. In the absence of any other vehicles around I wouldn’t say there necessarily was a danger.” Based on Officer Lee’s testimony that there were no other vehicles around, and there was not “necessarily a danger,” we cannot say that the facts or circumstances within the officer’s knowledge were sufficient to permit a person of reasonable caution to believe that Appellant failed to keep a proper lookout for other traffic by backing down the road.
The State contends that, even if Lee did not have probable cause to stop Appellant for careless driving, he did have probable cause to stop her for violating Ark. Code Ann. § 27-51-1309(a) (Supp. 2007), which provides that “[t]he driver of a vehicle shall not back a vehicle upon any roadway, unless the movement can be made with reasonable safety and without interfering with traffic.” Once again, we cannot say that the facts within the officer’s knowledge were sufficient to permit a person of reasonable caution to believe that the vehicle could not be backed down the road “with reasonable safety and without interfering with traffic.”
Accordingly, we hold that there was no probable cause to believe that Appellant was committing a traffic violation and that the circuit court therefore clearly erred in denying the motion to suppress. We therefore reverse and remand. In view of our holding that there was no probable cause to make the stop, we need not address Appellant’s remaining arguments.
Reversed and remanded. | [
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Per Curiam.
Terrance Quartez Jarrett, by his attorney, John W. Settle, has filed a motion for rule on clerk. The circuit court entered Jarrett’s judgment and commitment order on July 8, 2008, and Jarrett filed his notice of appeal on July 9, 2008. The record in this matter was thus due to be filed by October 7, 2008. Because the record was not tendered to this court’s clerk until November 5, 2008, it was untimely.
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 fifing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney fifing 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.
356 Ark. 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 or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from Jarrett’s motion that there was error on Mr. Settle’s part. Pursuant to McDonald v. State, supra, we grant Jarrett’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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Per Curiam.
Appellant William Mack Eubanks, by and through his attorney, William M. Pearson, has filed a motion to file a belated brief.
Eubanks’s brief was originally due in this court on September 23, 2008. Attorney Pearson then sought and received a seven-day clerk’s extension, making his brief due to be filed by September 30, 2008. Pearson also requested a second extension, which was granted, making his brief due on October 30, 2008. Pearson filed a third motion for extension, citing his heavy trial-related duties and asking for an additional fourteen days in which to file the brief. This court granted an extension of seven days, making the brief due on November 7, 2008; in doing so, we noted that this was the final extension. Pearson failed to meet this final deadline. He has now submitted the instant motion to file a belated brief, asserting that he completed the abstract, brief, and addendum on November 11, 2008.
We will accept a criminal appellant’s belated brief to prevent an appeal from being aborted. See Brown v. State, 373 Ark. 453, 284 S.W.3d 481 (2008) (per curiam). However, good cause must be shown to grant the motion. See Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (holding that appellate counsel’s admitted failure to timely file the brief constituted good cause to grant motion for belated brief).
Here, Pearson accepts full responsibility and admits fault for failing to timely file Eubanks’s brief. Accordingly, we grant the motion to file a belated brief and refer the matter to the Committee on Professional Conduct. | [
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Elana Cunningham Wills, Justice.
Appellant Joe Thel-man has attempted to appeal an order of the Phillips County Circuit Court by which he was granted immunity and ordered to testify in the ongoing criminal trial of Edward Joshaway. We hold that the order granting immunity is not a final, appealable order, and we dismiss his appeal.
The State of Arkansas charged Joshaway with theft in May of 2006. The grand jury indictment alleged that Joshaway and appellant Joe Thelman participated in taking money from the Helena-West Helena School District by deception. A second grand jury indictment charged Joshaway with conspiracy to commit theft, by conspiring with Thelman to create false invoices to be submitted to the Helena-West Helena School District.
The cases against Joshaway and Thelman were originally consolidated for trial. However, Thelman and another co-defendant, Bobby Jones, later moved for a severance from Josha-way. That motion was granted, and Thelman and Jones were subsequently tried and found not guilty. After those not guilty verdicts, the State proceeded to try Joshaway alone.
As part of its prosecution, the State named Thelman as a key witness against Joshaway. The prosecutor, Fletcher Long, sent a letter and accompanying subpoena to Thelman on February 25, 2008, informing him that he would be required to appear and testify in the Joshaway trial. Thelman replied, informing Long that he would not testify and would invoke his Fifth Amendment privilege against self-incrimination. Long then filed a petition for grant of use immunity pursuant to Ark. Code Ann. § 16-43-603 (Repl. 1999) and Ark. Code Ann. § 16-43-604 (Repl. 1999), asking the circuit court to enter an order affording Thelman immunity from the use of his truthful testimony against him in any future proceeding that might be brought against him.
The circuit court entered such an order on March 10, 2008, granting Thelman use immunity and directing him to “testify fully and completely in this cause of action and responsively to any questions [that] he may be asked by the Prosecuting Attorney or defense counsel.” The court’s order cautioned Thelman that his “refusal to testify in accordance with this order constitutes a Class B misdemeanor and that he may be imprisoned or fined for his failure to so testify.”
In a hearing held the same day, Thelman informed the court that, despite the granting of immunity, he would not testify in the Joshaway trial. The circuit court then stated from the bench that it was holding him in contempt of court and ordered him confined in the Phillips County jail until he filed a notice of appeal. Thelman immediately filed his notice of appeal, stating his intent to appeal “from the ruling issued by [the circuit] court regarding [the] grant of use immunity.” On appeal, he argues that the circuit court erred in holding him in contempt for refusing to comply with the court’s order compelling his testimony.
Before we can consider the merits of Thelman’s argument on appeal, however, we must address an issue raised by the State in its response to Thelman’s jurisdictional statement. The State contends that Thelman has attempted to appeal from an order that is not final and appealable — the order granting him use immunity — and thus this court lacks jurisdiction to consider Thelman’s appeal under Ark. R. App. P.-Civ. 2(a)(1). We agree.
As just noted, Thelman’s sole point on appeal is that the circuit court erred in holding him in contempt for refusing to testify after he invoked his Fifth Amendment right against self-incrimination. An order of contempt is a final, appealable order. See, e.g., Cent. Emergency Med. Servs., Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). However, Thelman’s notice of appeal is not taken from a contempt order. Rather, as mentioned above, Thelman’s notice of appeal stated that he was appealing “from the ruling issued by [the circuit] court regarding [the] grant of use immunity.”
Rule 3(e) of the Rules of Appellate Procedure provides that a notice of appeal shall, among other things, “designate the judgment, decree, order, or part thereof appealed from.” Ark. R. App. P.-Civ. 3(e) (2008). A notice of appeal must therefore designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court. See Wright v. State, 359 Ark. 418, 198 S.W.3d 537 (2004) (citing Ruffin v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998)). In addition, our court of appeals has held that a notice of appeal must be “judged by what it recites and not what it was intended to recite.” Rawe v. Rawe, 100 Ark. App. 90, 249 S.W.3d 162 (2007); see also Ark. Dep’t of Human Servs. v. Shipman, 25 Ark. App. 247, 253, 756 S.W.2d 930, 933 (1988) (although it was “readily apparent” that Department ofHuman Services employees intended to appeal from their contempt conviction, that matter was not properly before the appellate court where the notice of appeal made no reference to the contempt order).
In this case, Thelman’s notice of appeal recites that he is appealing the circuit court’s order “regarding [the] grant of use immunity,” not the court’s decision to hold him in contempt. However, we have been unable to find any authority that would support a conclusion that an order compelling testimony in exchange for a grant of immunity is a final, appealable order. This court has held in an analogous context that an order denying a protective order to quash a prosecutor’s subpoena is “not a final order for appeal purposes.” In re Badami, 309 Ark. 511, 513, 831 S.W.2d 905, 906 (1992). There, we held that such an order “is not a final judgment or order under [Ark. R. App. P.-Civ.] 2(a)(1), nor is it an order under Rule 2(a)(2) which determines the ‘action.’ ” Id. at 513, 831 S.W.2d at 906. In a subsequent case, Central Emergency Medical Services v. State, 332 Ark. 592, 966 S.W.2d 257 (1998), this court noted that there was no “final appealable order” problem where the subject of a prosecutor’s subpoena duces tecum appealed from the order holding it in contempt, and not from the order denying its motion to quash the subpoena.
In a similar vein, over a century ago, the United States Supreme Court held that an order compelling testimony and the production of documents pursuant to a subpoena duces tecum was not appealable, even where the individual whose testimony was being compelled asserted a claim of privilege under the Fifth Amendment. See Alexander v. United States, 201 U.S. 117 (1906). The Court reasoned that “such an order may coerce a witness, leaving him no alternative but to obey or be punished[,] . . . but from such a ruling it will not be contended there is an appeal.” Id. at 121. Rather, the Court said, the court compelling the testimony should “go farther, and punish the witness for contempt of its order — then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case.” Id. It is only when the contempt power is exercised that the “matter becomes personal to the witness and a judgment as to him,” and only then may an appeal be taken. Id. at 122; see also Cobbledick v. United States, 309 U.S. 323 (1940) (order denying a motion to quash a subpoena duces tecum and directing a witness to appear before a grand jury was not a final decision that could be appealed); United States v. Ryan, 402 U.S. 530 (1971) (order compelling the production of documents pursuant to a subpoena duces tecum was not an appealable order; concluding that the subject of the subpoena had another option: “he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him”).
Accordingly, applying this same reasoning, we hold that an order requiring testimony in exchange for a grant of use immunity is not a final appealable order. See, e.g., In re Ryan, 538 F.2d 435, 437 (D.C. Cir. 1976) (order compelling testimony and production of documents in exchange for immunity “stands on the same footing as any other order compelling testimony and the production of documents; and the Supreme Court has consistently held that such orders are not final and hence not appealable”). Had Thelman wished to appeal the circuit court’s order holding him in contempt, he could have had the contempt order reduced to writing and entered by the court. See Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005) (an oral order is not effective until entered of record); Ark. Sup. Ct. Admin. Order No. 2(b)(2) (a judgment, decree, or order is entered when file-stamped by the clerk).
It is the appellant’s obligation to properly preserve an issue for review. See Hewitt, supra (holding that, where the defendant failed to obtain an order on the motion to withdraw his plea separate from the judgment entered on his guilty plea, he was left with no order to appeal); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). As Thelman failed to have the circuit court reduce the contempt order to writing and enter it in accordance with Admin istrative Order No. 2, and as the order granting use immunity was not itself an appealable order, we conclude that Thelman’s appeal must be dismissed.
At the hearing on the State’s petition to grant immunity, the prosecutor informed the court that he would have to dismiss the charges against Joshaway if Thelman refused to testify. | [
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Paul E. Danielson, Justice.
Appellant Tony Bernard Johnson appeals from his conviction for attempted capital murder and his sentence to life imprisonment plus fifteen years, which includes an enhancement for use of a firearm. His sole point on appeal is that the circuit court erred in denying his directed-verdict motion in which he claimed that the State failed to introduce substantial evidence that he acted with premeditation and deliberation. We affirm his judgment and conviction.
A review of the testimony of Mary Rose Johnson reveals the following. On April 27, 2007, Mary Rose, who at the time was married to Johnson, went to see an attorney about obtaining a divorce from him. Later that day, Mary Rose received a call from Johnson, inquiring of her whereabouts. Mary Rose told Johnson that she had just left her attorney’s office, to which he responded that he hoped “it wasn’t what [he thought] it was about.” Mary Rose told him that there was no other reason for her to see an attorney, and the call soon terminated.
Upon arriving home approximately fifteen to twenty minutes later, Mary Rose changed clothes and began walking on her treadmill, which was located in the garage of her home. While walking, she looked up to see Johnson standing in the doorway, and Johnson told her that they needed to talk, “God Damn it!” Mary Rose then asked for ten minutes to finish walking. Johnson repeated his statement, then walked over to the wall, and unplugged a cd player to which Mary Rose had been listening.
At that time, Mary Rose told Johnson to plug the cd player back in and to give her ten minutes. After asking three times, Johnson did plug the player back in and turned, as if he was leaving. Mary Rose then heard a loud noise, felt a burning, and began to hold her stomach. After that, Mary Rose fell to her knees on the treadmill, which was still going. Johnson told Mary Rose that she had “throwed [him] away God Damn it!,” and she responded that no one did so and asked Johnson to call 911.
Mary Rose began to crawl toward the door, when Johnson looked at her and said, “bitch, don’t make another move, just lay there and die! ... I ought to shoot you in the head.” She again asked him to call 911 four different times, which he finally did. After emergency crews and the police arrived, Johnson was arrested. While Johnson was initially charged with criminal attempt to commit murder in the first degree and possession of a firearm by certain persons, the prosecutor later filed an amended information, charging Johnson with criminal attempt to commit capital murder and possession of a firearm by certain persons. He was subsequently tried, and as already set forth, convicted. He now appeals.
Johnson contends that the State failed to introduce substantial evidence that he acted with premeditation and deliberation in committing attempted capital murder. While he concedes that substantial evidence was presented that he fired a .357 revolver at his then-wife, Mary Rose, striking her in the stomach, he maintains that the State failed to prove that he shot her with the culpable mental state required to prove attempted capital murder — premeditated and deliberated purpose to cause death.
The State responds that substantial evidence supporting premeditation and deliberation was presented. Specifically, the State points to the testimony of Mary Rose, as well as to the testimony of Johnson’s co-worker, regarding threatening statements made to him by Johnson relating to Mary Rose. The State avers that the evidence showed that Johnson thought about killing his wife long before he fired the shot, that he attempted to cause her death by firing the shot, and that, by firing the shot, he took a substantial step toward capital murder in a premeditated and deliberated manner. It urges that the jury reasonably inferred, from the deadly nature of the weapon and from the location and extent of Mary Rose’s injury, that Johnson possessed the culpable mental state for attempted capital murder.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See id. This court has repeatedly defined substantial evidence as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Id. at 501, 268 S.W.3d at 318 (quoting Young v. State, 370 Ark. 147, 151, 257 S.W.3d 870, 875 (2007)). Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.
We hold that substantial evidence exists to support the jury’s verdict, convicting Johnson of attempted capital murder. A person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 2006). A person attempts to commit an offense if he or she purposely engages in conduct that “[constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be.” Ark. Code Ann. § 5-3-201 (a)(2) (Repl. 2006). We have held that premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. See Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).
Deliberation has been defined as “a weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.” Ford v. State, 334 Ark. 385, 389, 976 S.W.2d 915, 917 (1998) (quoting Davis v. State, 251 Ark. 771, 773, 475 S.W.2d 155, 156 (1972)). Premeditation means to think ofbeforehand, and it is well established that it is immaterial as to just how long premeditation and deliberation exist, so long as they exist for a period of time prior to the homicide. See id. Premeditation and deliberation may occur on the spur of the moment and may be inferred by the jury from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. See id.
In this case, substantial evidence was presented to support the jury’s finding of premeditation and deliberation. In addition to the testimony of Mary Rose already set forth above, Terry Hines, who worked with Johnson at Hines’s father’s detail shop, testified that on the afternoon in question while at the shop, Johnson was upset that his wife might have wanted a divorce. He stated that Johnson told him that “he was going to go home and just handle his business the way he know how [sic].” He further testified that Johnson told him that “he was going to shoot [Mary Rose] if she had some divorce papers” and that “he was going to kill the bitch.” Mr. Hines then testified that while driving Johnson home from work, Johnson repeated that he was going to shoot Mary Rose if she had any divorce papers. Mr. Hines stated that on that day, Johnson had a serious look on his face. And as already noted, Mary Rose testified that Johnson came into her garage demanding to talk to her, shot her, and commented that she should die. Here, there was substantial evidence to support Johnson’s conviction for attempted capital murder, and we, therefore, affirm Johnson’s conviction and sentence.
Pursuant to Arkansas Supreme Court Rule 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Johnson, and no prejudicial error has been found.
Affirmed.
Johnson does not challenge the firearm enhancement on appeal. | [
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Per Curiam.
Shelton Wormley, by counsel, John L. Kear-ney, has filed this motion for rule on clerk. The circuit court’s judgment and commitment order was entered on May 29, 2008, and the attorney for Wormley, Donald E. Warren, Sr., filed a notice of appeal on June 12, 2008. The trial court granted a motion filed by Mr. Warren to substitute John L. Kearney as counsel for appellant on July 16, 2008. The record in this matter was due to be filed by September 11, 2008. Because the record was not tendered to this court until November 17, 2008, it is untimely.
We are unable to consider the motion for rule on clerk filed by Mr. Kearney at this time. Under Arkansas Rule of Appellate Procedure-Criminal 16(a), once the notice of appeal has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. Thus, because Mr. Warren filed the notice of appeal on June 12, 2008, the trial court lacked jurisdiction to relieve him and substitute Mr. Kearney as counsel for appellant. Consequently, because Mr. Kearney was never properly appointed as counsel, he does not represent appellant, and this court will not consider a motion for rule on clerk filed by him.
Because Mr. Warren has not been relieved as counsel of record, we direct him to file a motion for rule on clerk on Wormley’s behalf within thirty days. At that time, Mr. Warren may file a motion to withdraw as counsel, and Mr. Kearney, should he wish to represent Wormley on appeal, may file a motion with this court for appointment of counsel.
Motion for rule on clerk denied. | [
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Paul E. Danielson, Justice.
Appellant Tommy Lee Brown appeals from the judgment and disposition order convicting him of four counts of cruelty to animals, fining him $530, assessing court costs of $150, and ordering restitution in the amount of $5,090.51 payable to Bluebonnet Equine Humane Society (BEHS). He asserts two points on appeal: (1) that the circuit court erred in ordering restitution; and (2) that the circuit court erred in determining the amount of restitution. We affirm the judgment and disposition order.
On appeal, Brown does not challenge the sufficiency of the evidence to support his convictions, but instead, challenges only the order of restitution and the amount thereof. Accordingly, only a brief recitation of the facts is necessary. See Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005). On September 17, 2007, Brown appealed to the circuit court the order of the District Court of Drew County finding him guilty of cruelty to animals, assessing him a fine of $430, assessing costs of $100, and ordering restitution in the amount of $5,090.51. On February 9, 2008, a bench trial was held by the circuit court. Testimony was presented that after four of Brown’s horses were seized due to maltreatment by malnourishment, Tina Shalmy, a volunteer with BEHS, took the horses to her property where she cared for them. Ms. Shalmy testified to the costs incurred to care for the horses, specifically:
Prosecutor: Tell me, if the Court were to find you were to get restitution, how much money have y’all been out?
Ms. Shalmy: It was five thousand and something. My part alone is three thousand something and we had a two thousand dollar vet bill that she was supposed to bring with her today.
An itemized list of expenses per horse was then admitted as an exhibit. With respect to the veterinarian bill, the following colloquy took place:
Prosecutor: Besides the care of those horses, you have a vet bill, and how much is that?
Ms. Shalmy: It was two thousand and something dollars, but the veterinarian did not appear today. She has that bill. It was for the care of—
Circuit Court: There may be some bills in this file. It appears to be two vet bills in the Clerk’s file from Crystal Springs Vet Service, one for eight hundred and six and one for eight hundred and seventy-one fifty.
Prosecutor: Does that sound correct?
Ms. Shalmy: Yes, that’s about right.
Prosecutor: And you’re asking for that because they are going to ask your society to pay that?
Ms. Shalmy: Our society has already paid it.
Prosecutor: They have already paid it?
Ms. Shalmy: Uh-huh.
In addition, Ms. Shalmy testified that BEHS was a nonprofit organization.
After finding Brown guilty on four counts of animal cruelty, the circuit court found that it could impose restitution, pursuant to Arkansas Code Annotated § 5-4-205 (Repl. 2006), and further ordered restitution, in the amount already set forth above, to BEHS. Brown now appeals.
For his first point on appeal, Brown argues that the circuit court erred in ordering restitution pursuant to Ark. Code Ann. § 5-4-205, because the circuit court failed to make any determination that BEHS was a victim. He maintains that, while BEHS incurred expenses caring for the horses, it was not as a result of his crime. He further claims that BEHS voluntarily assumed the horses’ care, which was not its duty under the law, and, thus, it was not a victim entitled to restitution. The State responds that, in accord with the statute, BEHS suffered monetary loss as a result of Brown’s crimes because it treated and cared for the horses, which required care to recover from the physical damage and injuries Brown caused them. It avers that the broad language of the statute allows BEHS to collect from Brown the monetary expense that it incurred as a direct or indirect result of his crimes.
The instant case calls on us to interpret section 5-4-205. This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. See id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. See id. 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. See id.
Arkansas Code Annotated § 5-4-205(a)(1) provides that “[a] defendant who is found guilty or who enters a plea of guilty or nolo contendere to an offense may be ordered to pay restitution.” The section further provides that “[w]hether a trial court or a jury, the sentencing authority shall make a determination of actual economic loss caused to a victim by the offense.” Ark. Code Ann. § 5-4-205(b)(1). “Victim,” for purposes of the section or any provision of law relating to restitution, is defined as “any person, partnership, corporation, or governmental entity or agency that suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode.” Ark. Code Ann. § 5-4-205(c)(1). The question presented in the instant case is whether BEHS was a victim entitled to restitution as a result of Brown’s cruelty-to-animals offenses. We conclude that it was.
BEHS is a humane society registered as a foreign nonprofit corporation here in Arkansas, of which we can take judicial notice. See Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002). See also Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 803, 376 S.W.2d 556, 557 (1964) (“We take judicial notice of records required to be kept by the Secretary of State.”); Public Loan Corp. v. Stanberry, 224 Ark. 258, 262 n.2, 272 S.W.2d 694, 697 n.2 (1954) (“We take judicial notice of public records required to be kept.”). Furthermore, as evidenced by Ms. Shalmy’s testimony set forth above, BEHS incurred monetary expense, either directly or indirectly, as a result of Brown’s cruelty to the horses, when it cared for and obtained treatment for the horses following their seizure. Here, Brown asserts that there was no proof that he caused the horses “to be in any worse shape when they were taken from the pasture than they were when he put them there,’’and, thus, the circuit court could not conclude that the expenses incurred by BEHS were a result of his offense. However, Brown’s assertion belies the fact that he was found guilty on four counts of cruelty to animals, convictions that he does not challenge on appeal.
In addition, Brown, relying on State v. Webb, 130 S.W.3d 799 (Tenn. Crim. App. 2003), contends that in order to be a victim, the circuit court was required to find that BEHS seized the horses lawfully. However, this argument, too, is without merit. The statutory definition of “victim” set forth in section 5-4-205 (c)(1) is both plain and unambiguous and in no way requires a finding that a victim acted lawfully, rather than voluntarily.
In sum, section 5-4-205 provides that a defendant found guilty of an offense may be ordered to pay restitution and that the sentencing authority shall make a determination of actual economic loss caused to a victim by the offense. It is clear from the evidence presented to the circuit court that BEHS constituted a victim as defined by the statute. Accordingly, the circuit court did not err when it determined that BEHS was entitled to restitution and ordered Brown to pay restitution to BEHS.
For his second point, Brown argues that the circuit court erred in determining the amount of restitution. Specifically, he contends that the circuit court erred when it did not conduct a hearing to determine the correct amount of economic loss sustained by BEHS. The State responds that this issue is not preserved for appellate review because Brown failed to object to the circuit court’s determination of the amount of restitution. Alternatively, the State urges, the facts established, by a preponderance of the evidence, a basis for the amount of restitution ordered.
The State is correct; this issue is not preserved for our review. Our review of the record reveals that Brown merely challenged whether BEHS was a victim, and, thus, whether restitution was proper. At the conclusion of the trial, the circuit court orally ruled that it would order restitution in the same amount ordered by the district court. At that time, Brown merely questioned whether he was precluded from owning horses in the future. After the circuit court responded affirmatively, the circuit court inquired as to how Brown wished to pay his restitution. No objection was made at either time regarding the amount of restitution ordered. We have held that to preserve an issue for appeal, a defendant must object at the first opportunity. See Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). Here, Brown failed to object or raise his argument below. Accordingly, we are precluded from reaching his second point on appeal. See Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991).
For the foregoing reasons, we affirm Brown’s judgment and disposition.
Affirmed.
The fine consisted of a $425 fine and $5 county jail fee.
In addition, a review of the record reveals further evidence that BEHS is a corporation, as the expense report admitted into evidence references BEHS as Bluebonnet Equine Humane Society, Inc. | [
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Paul E. Danielson, Justice.
Appellant Health Resources of Arkansas, Inc., appeals from the circuit court’s order granting appellee Fran Flener’s motion for summary judgment. Ms. Flener is the surviving spouse of William C. Huddleston and serves as the executrix of his estate. In its order, the circuit court found that Health Resources was obligated to pay the estate of William C. Huddleston certain benefits from one of its personnel policies, the “Vacation/Retirement Pay” policy. We hold that the p'olicy was not intended to provide a death benefit and, therefore, we reverse and remand the order of the circuit court.
The material facts are undisputed by the parties. William C. Huddleston served as the Chief Executive Officer of both Health Resources and Arkansas Affordable Housing, Inc., before he died on May 11, 2005. At the time of his death, he had been a full-time employee of Health Resources for thirty-one years. After Huddleston’s death, Ms. Flener sought to recover vacation/retirement pay and death benefits on behalf of Huddleston arising from certain personnel policies that were in effect at Health Resources. While Health Resources paid the death benefits owed to Huddleston’s estate, it denied Ms. Flener’s request for Huddleston’s vacation/ retirement pay, explaining that the vacation/retirement pay policy was not applicable to Huddleston as he did not retire.
Ms. Flener filed a complaint, and later an amended complaint, against Health Resources and Arkansas Affordable Hous ing, Inc., alleging breach of contract with regard to Health Resources’s vacation/retirement pay policy. However, because the alleged breach arose solely from Health Resources’s personnel policies, Ms. Flener filed a motion to voluntarily dismiss Arkansas Affordable Housing, Inc., which the circuit court granted on August 21, 2007. Both Health Resources and Ms. Flener then moved for summary judgment. On September 24, 2007, the circuit court held a hearing on the motions. The circuit court denied Health Resources’s motion for summary judgment and granted Ms. Flener’s motion for summary judgment on November 1, 2007. Health Resources now appeals.
First, Health Resources argues that their vacation/retirement pay policy is not payable upon death of an employee; rather, as understood by the plain language of the policy, that particular pay policy is conditioned upon an eligible employee’s retirement to provide a supplement to their retirement benefits. Health Resources asserts that, reading the personnel policies as a whole, it is clear that the Universal Life Insurance policy is the policy that was created to be payable to either a retiring employee or the employee’s estate upon death, while the vacation/retirement pay applies only to qualified employees who are retiring. Therefore, Health Resources concludes that the circuit court erred in granting Ms. Flener’s motion for summary judgment and instructing it to pay additional benefits to Huddleston’s estate.
Ms. Flener responds that Huddleston “retired” upon his death on May 11, 2005, and had previously earned the vacation/retirement pay. In addition, Ms. Flener asserts that the vacation/retirement pay provision should not be interpreted as inapplicable in the event of death simply because other policy provisions do specifically refer to payments upon death and this policy does not.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 93 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.
The facts here are undisputed by the parties. As there is not a genuine issue of material fact, the case was appropriately determined as a matter of law. Therefore, the issue here is whether summary judgment was granted in favor of the correct party based upon the interpretation of the pertinent personnel policies that were in effect at Health Resources at the time of Huddleston’s death.
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. See Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. See id. “The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it.” Coleman v. Regions Bank, 364 Ark. 60, 65, 216 S.W.3d 569, 574 (2005) (citing Missouri Pac. R.R. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557 (1941)). It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered not from particular words and phrases, but from the whole context of the agreement. See Alexander, supra.
The pertinent personnel policies that were in effect at the time of Huddleston’s death provide:
Vacation/Retirement Pay: When a full time employee of the Corporation achieves twenty (20) continuous years of employment with the Corporation, the employee will begin to earn vacation/ retirement pay at the rate of one (1) month of pay for each full, continuous year of employment with the Corporation beyond twenty (20) years up to a maximum of 12 months (One year). This pay will be at the rate being paid the employee at the time of retirement. Payments on this pay will be made on a monthly basis to the employee beginning with retirement. These special benefits will be in addition to the regular vacation earned by each employee of the Corporation. Of course, any employee who is ready for retirement will remain on the payroll until all of the vacation benefits are used. No accrual of leave will occur after an employee begins to use this special retirement benefit. This will enable an individual to delay as long as possible in starting their Pension, Social Security and other retirement benefits. Such a delay gives the benefits a longer time to grow. The maximum that can be achieved under this plan would be 12 months.
The effective date of coverage or inclusion in the above programs is the date of actually starting to work, or the date pay is started.
Universal Life Insurance
Full time employees (if insurable) who complete fifteen years of continuous full time employment will be provided with a universal life insurance benefit equal to four times the employee’s annual salary at the time of eligibility. There will be a minimum of $50,000 and a maximum of $300,000 on these policies. The policy will belong to the Corporation. This type ofpolicy will accumulate cash value and the Corporation will own this cash. The Corporation will pay the employee or, if deceased, her/his estate, from the proceeds of this policy as follows:
1. If the employee retires (age 62 years or over), or retires any time after the completion of 25 continuous years of employment, the Corporation will pay the employee (or estate if death occurs after retirement) one fortieth (l/40th) of the cash value of the policy each quarter for ten (10) years. These will be quarterly payments that will begin as soon after retirement as the cash value of the policy is forthcoming from the insurance company.
2. If the employee dies before retirement then the Corporation will pay the estate of the employee one fortieth (l/40th) of the funds received from the death benefit of the policy each quarter for ten (10) years. These will be quarterly payments that will begin as soon after the employee’s death as the death benefit is received by the Corporation from the insurance company.
Two important terms are used throughout the vacation/retirement pay policy — retirement and employee. The policy clearly explains that this special retirement benefit will be calculated using the rate being paid to the employee at the time of retirement. It further states that payments to the employee will begin with retirement. While Ms. Flener argues that Huddleston “retired on May 11, 2005, both figuratively and literally” upon his death, her interpretation goes against the plain language rule by equating death with retirement.
Furthermore, when considering the meaning that the parties intended to convey from the language used, Ms. Flener’s interpretation is not the most applicable. As previously noted, the intention of the parties is to be gathered not from particular words and phrases, but from the whole context of the agreement. See Alexander, supra. Other provisions of the personnel policies, more specifically, the Universal Life Insurance provision, include additional language clarifying that payment is to be made upon retirement or death. Had Health Resources intended that the vacation/retirement pay also be payable upon death, it surely would have included similar language under that provision.
It is clear from the plain and ordinary meaning of the language used in the vacation/retirement pay policy that Huddleston’s employment beyond the twenty years described in the policy had vested him with certain benefits. However, those benefits were only to mature upon his retirement. This concept is explained in 70 C.J.S. Pensions § 4 (2005):
Ordinarily, “vesting” refers to the provision in a retirement plan whereby a member’s right to benefits becomes effective upon the fulfillment of specified qualifying conditions, such as service for a certain period of time, which right is not forfeited by separation from service prior to the prescribed age for retirement.
A vested pension right must be distinguished from a “matured” or unconditional right to immediate payment. Depending upon the provisions of the retirement program, an employee’s right may vest after a term of service even though it does not mature until the employee reaches retirement age and elects to retire. Such vested but immature rights are frequently subject to the condition, among others, that the employee survive until retirement.
If a plan participant has a current right to the benefits, they are known as “mature” benefits. Although a pension is vested, until an employee satisfies all of the conditions for receipt of benefits, the pension is classified as vested but immature. However, once the employee satisfies the conditions, the employee’s pension matures, that is, the employee has an immediate right to the benefits.
Because Huddleston did not retire, his right to the benefits under the vacation/retirement pay policy never matured. Therefore, the circuit court erred by granting summary judgment in favor of Ms. Flener, and we reverse and remand for entry of an order consistent with this opinion. Because the issue on appeal is clearly resolved by our interpretation of the policy, we do not address the additional arguments raised by the appellant.
Reversed and remanded.
Glaze, J., not participating. | [
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Jim Gunter, Justice.
Appellants appeal the trial court’s denial of their motions to (1) strike appellee’s amended answer asserting the defense of charitable immunity and (2) substitute appel-lee’s insurance carrier as the party-defendant. Appellants assert that appellee’s failure to timely assert the defense of charitable immunity was prejudicial, therefore the trial court erred in not striking the amended answer. We agree with appellants and reverse.
On July 23, 2003, Arvilla Langston died while under the care of Sparks Regional Medical Center (Sparks), and her children and estate filed suit against Sparks on July 19, 2005, alleging medical negligence. Sparks filed an answer on September 8, 2005, and an amended answer on January 26, 2007, in which it stated for the first time that, as a not-for-profit Arkansas corporation, it was entitled to charitable immunity. Appellants filed a motion to strike this amended answer as prejudicial, but the motion was denied.
On May 21, 2007, Sparks filed a motion for summary judgment, asserting there was no genuine issue of material fact as to its status as a charitable organization and its qualification for charitable immunity. In their response to the motion, appellants requested that they be allowed to substitute Sparks’s insurance carrier, Lexington Insurance Company (Lexington), as the proper party-defendant and to file an amended complaint naming Lexington as the defendant. Appellants also asked that they be granted a 120-day extension to conduct discovery into Sparks’s entitlement to charitable immunity, in the event the court denied their motion to substitute Lexington as the party-defendant. The court denied the motion for a discovery extension but held a hearing on the motion for substitution of parties.
At the hearing, held July 13, 2007, appellants conceded that they could not meet proof with proof on the issue of summary judgment but argued that, under the existing case law, their motion to substitute parties should be granted. At the conclusion of the hearing, the court indicated that the motion to substitute would be denied. Prior to a written order to that effect being filed, appellants filed a motion for reconsideration pursuant to Ark. R. Civ. P. 59 and 60, again arguing that their motion for substitution of parties should have been granted and also asserting various constitutional arguments.
On July 25, 2007, the court entered an order granting appellee’s motion for summary judgment and denying appellants’ motion for substitution of parties. The court found that the substitution was not proper under Ark. R. Civ. P. 25, as appellants were not attempting to substitute a party for a deceased party, nor was it proper under Ark. R. Civ. P. 15 to allow appellants to amend their complaint and name Lexington as the party-defendant, because appellants had not satisfied all the elements necessary for an amended complaint to relate back to the date of the original complaint. Specifically, the court found that appellants had not proven that Lexington received knowledge of the action within 120 days of the filing of the original complaint, nor had appellant shown 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 Lexington. To support its ruling, the court cited George v. Jefferson Hospital Ass’n, 337 Ark. 206, 987 S.W.2d 710 (1999) (holding that liability carrier named in an amended complaint was entitled to summary judgment when initial action brought against hospital only was not the result of mistake of identity as to proper party and thus did not support relation back for limitation purposes). Finally, on August 8, 2007, the court issued an order denying appellants’ motion for reconsideration. Appellants then filed a timely notice of appeal to this court.
Before addressing the merits of this case, a brief discussion of the history of charitable immunity may be helpful. Prior to 2002, the law was well settled that charitable organizations were immune from execution on their property and thus were immune from tort liability. See, e.g., Helton v. Sisters of Mercy of St. Joseph’s Hosp., 234 Ark. 76, 351 S.W.2d 129 (1961). Our law provided a remedy, however, in that a charitable organization’s liability insurance carrier could be sued directly. See Ark. Code Ann. § 23-79-210 (Supp. 2007); George, supra.
However, in 2002, this court decided the case of Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002). In Clayborn, this court explained in dicta that there was a distinction between immunity from suit and immunity from liability: immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit. Id. The Clayborn decision concluded that the direct-action statute provides for direct actions against an insurer only in the event that the organization at fault is immune from suit in tort. Id.
This new distinction was applied by the court of appeals, see Stracener v. Williams, 84 Ark. App. 208, 137 S.W.3d 428 (2003), and confirmed by this court’s decision in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004) (declining to overrule Clayborn). However, in 2005, this court decided Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), which held that the distinction created in Clayborn was out of step with precedent and was overruled. The Low decision clarified that the “not subject to suit for tort” language in the direct-action statute is synonymous with a charitable organization’s immunity from tort liability, so where a charitable organization is not subject to an action in tort (due to charitable immunity), its liability insurance carrier is subject to a direct action. The recent case of Sowders v. St. Joseph’s Mercy Health Center, 368 Ark. 466, 247 S.W.3d 514 (2007), further elucidated the state of the law. “Plaintiffs alleging injury by charitable organizations can bring suit against the charities’ liability insurer via the direct-action statute, Ark. Code Ann. § 23-79-210. Further, injured plaintiffs may bring suit against employees of charitable organizations.” 368 Ark. at 470, 247 S.W.3d at 517. And finally, in Felton v. Rebsamen Medical Center, 373 Ark. 472, 284 S.W.3d 486 (2008), this court clarified that charitable immunity is an affirmative defense that must be specifically pled.
It is within the context of this case law that the present case developed. For their first point on appeal, appellants argue that the trial court erred in denying their motion to strike appellee’s amended answer asserting charitable immunity as a defense. Rule 15 of the Arkansas Rules of Civil Procedure provides that a party may amend its pleadings at any time without leave of the court, but if, upon motion of an opposing party, the court determines that prejudice would result, the court may strike the amended pleading. Ark. R. Civ. P. 15(a) (2008). We will not reverse a trial court’s decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006).
Appellants contend that, pursuant to Clayborn, supra, and Scamardo, supra, they filed their original complaint against appellee only, rather than appellee and its liability carrier. Appellants note that their complaint simply alleged that appellee was a corporation that operated a hospital in Fort Smith, Arkansas, and in its original answer, appellee admitted it was “a not-for-profit Arkansas corporation” operating a hospital in Fort Smith but did not mention the affirmative defense of charitable immunity. Appellee did not raise this defense until approximately sixteen months later, after the Low and Sowders decisions, when it filed its amended answer. In its ruling, the trial court found that the additional language in appellee’s amended answer regarding charitable immunity “did not plead additional facts or raise any new defenses” and therefore was not prejudicial to appellants. On appeal, appellants urge that appellee’s failure to timely assert the defense was prejudicial because, had the defense been asserted earlier, appellants could have added or substituted Lexington as the party-defendant in a timely manner and also could have conducted discovery on the issue of appellee’s eligibility for charitable immunity.
We hold that the trial court erred in holding that appellee’s amended answer did not raise any new defenses. Merely asserting its status as a not-for-profit corporation is not equivalent to specifically raising the affirmative defense of charitable immunity, as not all not-for-profit organizations will be immune under the doctrine. See George, supra (enumerating the eight factors to determine whether charitable immunity applies); see also Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (holding that public-benefit corporation was not entitled to charitable immunity). And, as previously mentioned, Felton, supra, established that charitable immunity must be specifically pled.
We also agree that allowing the amended answer was prejudicial to appellants. At the time appellee filed its original answer, appellants were still within the 120-day period for notifying Lexington of the suit for relation-back purposes under Ark. R. Civ. P. 15(c). But, by the time appellee filed its amended answer, any attempt to add Lexington as a party would have been untimely. This case is distinguishable from Sowders, supra, because in that case, the liability pool administered by the Sisters of Mercy did not constitute insurance for purposes of the direct action statute, so there was no liability carrier that the appellant could have added as a defendant and thus no prejudice in applying our holding in Low and not allowing the appellant to collect a judgment from the hospital. This case is also distinguishable from Felton, supra. In that case, the appellant filed suit against the hospital and the liability carrier, but later nonsuited his claim against the liability carrier. Because the hospital had asserted the defense of charitable immunity in its original answer, there was no prejudice in finding the appellant’s second complaint against the liability carrier was time-barred.
Because we find merit in appellants’ first argument, we decline to discuss appellants’ other points on appeal. The trial court’s order denying appellants’ motion to strike appellee’s amended answer is reversed, and, as the grant of summary judgment was based on appellee’s assertion of charitable immunity, the order granting summary judgment to appellee is reversed as well. We remand for further proceedings.
Reversed and remanded.
Sparks Medical Foundation was also named as a defendant in the complaint but was later dismissed from the action without prejudice. | [
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Donald L. Corbin, Justice.
Petitioner, International Paper Company, invokes this court’s jurisdiction to request a writ of prohibition to prevent the Clark County Circuit Court from exercising jurisdiction over matters alleged to be within the exclusive jurisdiction of the Arkansas Workers’ Compensation Commission. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(3). We find merit to Petitioner’s request and grant the writ of prohibition.
Our review of the pleadings reveals the following information. On January 6, 2004, Edna Pennington suffered a fatal, accidental injury while employed at Petitioner’s Gurdon, Arkansas, facility. She was cleaning wood chips from the floor near a Hammer Hog Wood Chipper machine when her clothing became entangled in the shaft of the machine. Her cause of death was craniocerebral and facial trauma; she also suffered rib fractures and abrasions of her trunk and extremities. Petitioner had been granted authority from the Commission to self-insure its workers’ compensation obligations. Petitioner, through a claims-management service, began paying weekly benefits to the decedent’s husband, Gerald Pennington, and their minor son. Currently, the Death and Permanent Total Disability Fund is set to assume liability for payment of benefits in August of 2009.
On January 5, 2006, Gerald Pennington, individually and as personal representative of his wife’s estate, filed a complaint in Clark County Circuit Court. He later amended the complaint, which stated numerous allegations, the gist of which was that Mrs. Pennington’s injury and death were caused by Petitioner’s failure to maintain a safe work environment and by Petitioner’s intentional, deliberate, and willful conduct. The complaint alleged further that Petitioner’s conduct was outrageous and intended to cause severe emotional distress and mental anguish.
Petitioner first responded to the complaint by filing a motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief may be granted. The circuit court considered the pleadings in the light most favorable to Mr. Pennington, as the party asserting the claims, and denied the motion to dismiss by order entered May 30, 2007. Petitioner then answered the complaint. Respondent filed a motion to set a pretrial scheduling order. Petitioner then filed its petition for a writ of prohibition in this court.
A writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006). The writ is appropriate only when there is no other remedy available. Id. When considering a petition for a writ of prohibition, this court confines its review to the pleadings in the case. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. Prohibition is never issued to prohibit a trial court from erroneously exercising jurisdiction. Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 253 S.W.3d 444 (2007). Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Id. They should issue only in cases of extreme necessity. Id.
In support of its request for a writ of prohibition, Petitioner first contends that the circuit court is wholly without jurisdiction of the claims alleged in the complaint because they are within the exclusive jurisdiction of the Arkansas Workers’ Compensation Commission. We agree that, at this point in the litigation, the circuit court is wholly without jurisdiction of the matters alleged in this complaint.
Generally, an employer who has secured for its employees the benefits of workers’ compensation is immune from liability for damages in a tort action brought by an injured employee, his legal representative, dependents, and next of kin. Gourley v. Crossett Pub. Schs., 333 Ark. 178, 968 S.W.2d 56 (1998). This rule, known as the exclusivity doctrine, arises from Ark. Code Ann. § 11-9-105 (Repl. 2002), which provides that “[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, [or] next of kin.” This court has on occasion rendered certain court-defined narrow exceptions to this general rule, such as when an employer willfully and intentionally injures an employee. Gourley, 333 Ark. at 181, 968 S.W.2d at 57-58 (citing Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993)).
Over ten years ago, this court recognized that its concurrent-jurisdiction approach was resulting in duplicative litigation and therefore contravening the purpose of the Arkansas Workers’ Compensation Act, currently codified at Ark. Code Ann. §§ 11-9-101 to -1001 (Repl. 2002 & Supp. 2007), to achieve uniformity, simplicity, and speed in the disposition of cases. VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998). This court therefore abandoned the concurrent-jurisdiction approach in favor of the administrative law rule of primary jurisdiction allowing the Commission to decide the applicability of the Workers’ Compensation Act. Id. In so doing, this court stated as follows:
We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that this issue is no longer one of fact but one of law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, 945 S.W.2d 933 (1997) (citing Miller v. Ensco, Inc., 286 Ark. 458, 461, 692 S.W.2d 615 (1985)) (explaining that, before an employee is free to bring a tort action for damages against an employer, the facts must show that the employer had a “desire” to bring about the consequences of the acts, or that the acts were premeditated with the specific intent to injure the employee). In so holding, we overrule all prior decisions to the extent that they are inconsistent with this opinion.
334 Ark. at 16, 970 S.W.2d at 812.
If, as the Respondent circuit court states in its response to this petition, there are facts alleged in the pleadings that are in need of further development, then, according to VanWagoner, the Commission is the forum with the exclusive jurisdiction to determine those facts relevant to the applicability of the Workers’ Compensation Act. VanWagoner clearly states that it is the Commission that has exclusive jurisdiction to determine the facts that establish jurisdiction. The issue is one of “jurisdiction to deter mine jurisdiction,” as distinguished from “jurisdiction to hear the merits of the case.” Nucor Corp. v. Rhine, 366 Ark. 550, 555, 237 S.W.3d 52, 57 (2006).
Here, the complaint alleges that Petitioner committed numerous acts such as failure to make reasonable inspection of the equipment, failure to provide a safe workplace, failure to provide safety gear and lockdown measures, and violation of governmental safety regulations, among others. Our case law is clear that these types of allegations are covered exclusively by the Workers’ Compensation Act, within the exclusive jurisdiction of the Commission, and are rarely if ever sufficient to satisfy the intentional tort exception to the Act’s exclusive-remedy provision. See, e.g., Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985). In addition, the complaint alleges intentional torts involving mental anguish such as intentional infliction of emotional distress and outrage. However, because all the allegations in this complaint are so intertwined, we cannot conclude the facts are so one-sided as to render the issue no longer one of fact, but of law. See VanWagoner, 334 Ark. 12, 970 S.W.2d 810. Accordingly, at this stage of the litigation, we conclude the Commission has exclusive jurisdiction to determine the applicability of the Act to the matters alleged in the complaint, and the circuit court is therefore wholly without jurisdiction.
Before granting a writ of prohibition, however, we must next determine if Petitioner has any other adequate remedy. As a general rule of appellate procedure, the denial of a motion to dismiss is not an appealable order under Ark. R. App. P.-Civ. 2. Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003). Moreover, this court has stated that a writ of prohibition is not the appropriate remedy following a denial of a motion to dismiss. Ulmer v. Circuit Court of Polk County, 366 Ark. 212, 234 S.W.3d 290 (2006). An appeal after a trial on the merits is not adequate, contends Petitioner, because it would contravene the very purpose of the Act and allow the floodgates of litigation to be opened simply by alleging matters in a complaint. This court has stated that where encroachment on the jurisdiction of the Workers’ Compensation Commission is clear, a writ of prohibition is clearly warranted. W. Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996) (citing Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993)); see also Erin, Inc., 369 Ark. 265, 253 S.W.3d 444. Any perceived error in the Commission’s decision on jurisdiction may be tested and reviewed on appeal. Erin, Inc., 369 Ark. 265, 253 S.W.3d 444. Because at this point in the litigation the exclusive jurisdiction of this case lies with the Commission, encroachment on the Commission’s jurisdiction is clear, and we therefore grant the writ of prohibition.
Because we grant the writ of prohibition on jurisdictional grounds, we need not consider Petitioner’s argument concerning the election-of-remedies doctrine.
Writ granted.
Two parties filed responses to this petition — Clark County Circuit Court Judge JohnThomas and Gerald Pennington, individually and as personal representative of his wife’s estate. The proper party as respondent to a petition for writ of prohibition is the circuit court, not the judge, and not an injured worker’s representative. See Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997). | [
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Jim Gunter, Justice.
This appeal arises from two orders of the Carroll County Circuit Court granting summary judgment in favor of Appellees State Farm Mutual Automobile Insurance Company, Inc. (State Farm) and Allstate Insurance Company, Inc. (Allstate). Appellant Barbara Deschner (Deschner), individually and as the court appointed guardian of her son, Christopher Deschner, appeals both orders of the circuit court. We affirm.
On October 31, 2002, eleven-year old Christopher De-schner was shot in the eye by a paintball fired from a vehicle while he was trick-or-treating. The vehicle was driven by Keith Blane Neal. Derek Balance and Gene Jackson were passengers in the vehicle. Christopher Deschner sustained injuries to his eye, including loss ofperipheral vision, a decrease in vision from 20/20 to 20/80 and migraine headaches associated with optic damage. Deschner filed suit against Neal, Jackson, and Balance in Carroll County Circuit Court alleging that they were liable for Christopher’s injuries. See Deschner v. Balance, Carroll County (W.D.) No. 2002-172.
The vehicle driven by Keith Neal was insured by an automobile insurance policy issued by State Farm. Neal’s parents, Pamela and Gordon Neal (the Neals), were also insured by a homeowner’s policy issued by Allstate. On August 7, 2006, State Farm filed a complaint for declaratory judgment, seeking a declaration of the rights and relations of the parties pursuant to the automobile insurance policy issued to the Neals. In its complaint, State Farm asserted that it did not provide liability coverage for the claims against Balance or Jackson because they were not “using the insured automobile.” State Farm also contended that it did not provide liability coverage for the claims against Neal because the claims “do not seek damages because of‘bodily injury’ caused by an ‘accident resulting from the ownership, maintenance, or use of your car.’ ” The circuit court granted summary judgment in the declaratory-judgment action filed by State Farm.
On August 29, 2006, Deschner filed a third-party complaint against Allstate, alleging that Keith Neal was covered by the homeowner’s insurance policy issued by Allstate to his parents. The third-party complaint stated, “[a]s a matter of law, the injuries suffered by Christopher Deschner did not arise out of the operation, maintenance, or use of an automobile as correctly decided by a previous order of this Court granting the motion for summary judgment filed by State Farm Mutual Automobile Insurance Company.” Allstate answered the complaint, denying Deschner’s alie- gations, and then filed a counterclaim and cross claim requesting declaratory judgment that the homeowner’s policy did not cover any of the defendants.
State Farm and Allstate filed motions for summary judgment on February 20, 2007, and March 15, 2007, respectively. After hearings on both motions, the circuit court granted State Farm’s motion for summary judgment on March 19, 2007, and granted Allstate’s motion on May 11, 2007. Deschner filed a timely notice of appeal on May 31, 2007. On June 6, 2007, the circuit court entered a judgment against Balance, Neal, and Jackson, finding them jointly and severally liable for Christopher Deschner’s injuries and awarding Deschner $100,000 on her negligence claims. Deschner’s appeal of the orders granting summary judgment to State Farm and Allstate was certified to us from the Arkansas Court of Appeals on October 28, 2008, because it involves an issue of substantial public interest and a significant issue needing clarification or development of the law pursuant to Ark. Sup. Ct. R. 1-2 (b)(4) and (5) (2008).
On appeal, Deschner asserts that the circuit court erred in granting summary judgment in favor of Allstate. In the alternative, Deschner asserts that the circuit court erred in granting summary judgment in favor of State Farm.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.
In the present case, the circuit court ruled that neither the State Farm automobile policy nor the Allstate homeowner’s policy provided coverage for Christopher Deschner’s injuries. Our law regarding the construction of insurance contracts is well settled. McGrew v. Farm Bureau Mut. Ins. Co., 371 Ark. 567, 268 S.W.3d 890 (2007); Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. McGrew, supra; Elam, supra. Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates coverage. McGrew, supra; Norris, supra. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. McGrew, supra. If a provision is unambiguous, and only one reasonable interpretation is possible, this court will give effect to the plain language of the policy without resorting to the rules of construction. Id. If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id.
I. State Farm Automobile Policy
We will first address the circuit court’s order granting summary judgment in favor of State Farm. In its motion for summary judgment, State Farm argued that Deschner’s claims were not covered by the State Farm automobile policy because the claims did not arise out of an accident resulting from the ownership, maintenance, or use of the car. The State Farm policy states, in pertinent part:
We will:
1. Pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, and
b. damage to or destruction of property including loss of its use,
caused by accident resulting from the ownership, maintenance or use of your car.
Deschner concedes in her response to Allstate’s motion for summary judgment that the.State Farm policy does not provide coverage by stating that “the shooting of Christopher Deschner was not a proper ‘use’ or ‘occupancy’ of the automobile at issue.” Deschner even admits in her third-party complaint against Allstate that the State Farm policy does not provide coverage by stating, “ [a]s a matter of law, the injuries suffered by Christopher Deschner did not arise out of the operation, maintenance, or use of an automobile as correctly decided by a previous order of this Court granting the motion for summary judgment filed by State Farm Mutual Automobile Insurance Company.” Although Deschner now attempts to revive her argument against State Farm, the argument is inconsistent and not fully developed. Thus, because Deschner concedes that the State Farm policy does not provide coverage, she has abandoned this argument on appeal, and we need not address this issue.
II. Allstate Homeowner’s Policy
For her second point on appeal, Deschner asserts that “if Christopher Deschner’s injuries would not be covered by the language of the automobile policy insuring Keith Blane Neal then they should be covered under the Neals’ homeowner’s policy with Allstate for the unintentional negligent conduct of its insured Keith Neal.” Specifically, Deschner contends that Allstate contractually agreed that it would be obligated to pay damages up to the applicable policy limits for acts of negligence of Keith Neal that caused injury to Christopher Deschner.
In response, Allstate admits that Keith Neal was insured under the homeowner’s policy issued to his parents, but asserts that there are no issues of material fact in this case. Allstate additionally argues that the homeowner’s policy provides no coverage because (1) the paint-ball shooting was not a covered “occurrence”; (2) the homeowner’s policy excludes coverage for injuries resulting from intentional acts of the insured person; and (3) Deschner’s sole claim against Keith Neal is based on his “use” and “occupancy” of a motor vehicle.
Allstate’s homeowner’s policy states that it will provide coverage for the following:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
Allstate excludes the following from coverage:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct;
b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected;
c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
5. We do not cover any bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer
Deschner asserts that the exclusionary language in the Allstate policy is almost identical to the language included in the State Farm policy. The State Farm policy includes coverage for injuries arising out of the ownership, maintenance, and use of a vehicle, and the Allstate policy excludes coverage for injuries arising out of the ownership, maintenance, use, or occupancy of a vehicle. Regarding the provisions in the two policies, the circuit court stated:
The State Farm policy says that we cover ownership, maintenance or use. Allstate says that we don’t cover ownership, maintenance, use, occupancy or anything that involves that automobile we do not cover it and in this instance I think that the policy language is pretty definite. They say that if you want to be covered by automobile insurance you have got to buy an automobile policy .... So I think, unfortunately we have a situation here that neither the automobile policy nor the homeowners insurance would cover this.
I know the terms of this policy because I think the terms of [Allstate’s] policy are much broader than the [State Farm poli cy]. The [Allstate] policy pretty much says that if you have anything to do with an automobile it is not covered.
The provision in the Allstate policy excluding coverage for the “ownership, maintenance, use, or occupancy” of a vehicle is clear and unambiguous. There is no question of fact regarding Neal’s occupancy of the vehicle. Christopher Deschner’s injuries were the result of a paint ball fired from the Neals’ car that was occupied by Keith Neal, Derek Balance and Gene Jackson. Giving effect to the plain language of the policy, see McGrew, supra, we hold that Christopher Deschner’s injuries are clearly excluded from coverage because they arise out of the occupancy of a vehicle. Accordingly, we affirm the orders of the circuit court granting summary judgment in favor of both State Farm and Allstate.
Affirmed.
Imber, J., not participating. | [
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Per Curiam.
In a per curiam opinion, handed down on November 13, 2008, we ordered the appellant, Ledell Lee, to file a substituted brief because the brief he had filed did not comply with Ark. Sup. Ct. R. 4-2(a) (2008). Lee, through his attorneys, has filed a substituted brief; however, it still does not comply with our rules.
This case has a long procedural history before this court, which we detailed in the November 13, 2008 opinion. To restate, Lee was convicted of capital murder in 1993 and was sentenced to death. This court affirmed his conviction and sentence in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002 (1997). Lee filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging that his trial attorneys rendered ineffective assistance of counsel, during both the guilt and penalty-phases of his trial. After holding hearings, in January and March 1999, the circuit court denied Lee’s petition. This court affirmed in Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). In 2006, we granted a motion by Lee to recall the mandate in that case because the record indicated that he had received ineffective assistance of counsel during the first Rule 37 proceeding. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006). We remanded the case for a new hearing on Lee’s Rule 37 petition.
The circuit court held another Rule 37 hearing on August 28, 2007, at which Lee was represented by newly appointed counsel. On November 21, 2007, the circuit judge entered findings of fact and conclusions of law, again denying Lee’s petition for postconviction relief. That order specifically relied on testimony from the August 28, 2007 hearing; stipulated testimony from the hearings held in January and March 1999; testimony introduced during the guilt and penalty phases of the trial; Lee’s pleadings; the record of the case; and the arguments of counsel. Lee appealed the November 21, 2007 findings of fact and conclusions of law to this court, and we ordered that Lee file a substituted brief in conformance with our rules. Lee v. State, 375 Ark. 124, 289 S.W.3d 61 (2008).
Our rules require an appellant to abstract all material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the court for decision. Ark. Sup. Ct. R. 4-2(a)(5) (2008). Furthermore, on a second or subsequent appeal, the abstract must include a condensation of all pertinent portions of the transcript filed on any prior appeal. Id. Our rules also require that the appellant include all relevant orders, pleadings, exhibits, and documents in the addendum portion of his brief. Id. R. 4-2(a)(8).
Lee’s substituted brief does not include a copy of the Rule 37 petition on which the circuit judge ruled in his November 21, 2007 order. Furthermore, the abstract in the substituted brief does not appear to include the relevant testimony from all of the postconviction hearings. While the substituted brief did include abstracted testimony from the guilt and penalty phases of the trial, Lee also abstracted various pleadings, exhibits, and orders from the underlying trial. Our rules make clear that “true and legible photocopies of the order . . . from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal” must be included in the addendum, not in the abstract portion of the brief. Id. According to our rules:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8).
Ark. Sup. Ct. R. 4-2(b)(3) (2008).
Accordingly, we again order Lee to file a substituted brief, curing the deficiencies in the abstract and addendum, within fifteen days from the date of entry of this order. To be clear, Lee’s brief must, at a minimum, abstract the following: All relevant testimony from the guilt and penalty phases of the trial, all relevant testimony from the January and March 1999 evidentiary hearings, and all relevant testimony from the January 28, 2007 Rule 37 hearing. Also, again at a minimum, Lee’s brief must include photocopies of the following documents in his addendum: The November 21, 2007 findings of fact and conclusions of law, the Rule 37 petition on which the Pulaski County Circuit Court ruled in its November 21, 2007 order, and Lee’s notice of appeal. The addendum must also contain photocopies of any other pleadings, exhibits, or documents relevant to this court’s understanding of the issues on appeal.
After service of the substituted brief, the appellee shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely on the brief previously filed in this appeal.
Because this is the second time this court has been forced to order rebriefing in this case, we refer the defense attorneys to the Committee on Professional Conduct.
Rebriefing ordered.
We specifically noted that Lee had failed to abstract all relevant portions of the guilt and penalty phases of his underlying criminal trial or the relevant testimony from the first Rule 37 proceeding. Lee’s brief was deficient also because the addendum did not include a copy of his amended Rule 37 petition.
Lee abstracted testimony from the “Rule 37 Hearing.” However, the brief does not indicate which Rule 37 hearing was abstracted. Lee must abstract all relevant testimony from the January and March 1999 hearings, as well as from the August 28,2007 hearing. | [
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Per Curiam.
The State of Arkansas appeals from the circuit court’s grant of Appellee John Brown’s Rule 37 petition. Because the State submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2 (a) (8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides, in pertinent part:
Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.
Ark. Sup. Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup. Ct. R. 4-2(b)(3).
Here, the State’s brief is deficient due to the fact that its addendum lacks relevant pleadings essential to an understanding of the case. The record reveals that at the conclusion of the hearing on Brown’s Rule 37 petition, the circuit court requested that the parties submit posthearing briefs in lieu of oral arguments. The posthearing briefs appear in the record but do not appear in the State’s addendum.
Because the State has failed to comply with our rules, we order it to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. If the State fails to do so within the prescribed time, the order appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, Brown shall have an opportunity to revise or supplement his brief in the time prescribed by the clerk.
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Per Curiam.
Petitioner, James Aaron Miller, through his attorney, James W. Wyatt, has filed a petition for writ of certiorari to complete the record pursuant to Rule 3-5 of the Rules of the Supreme Court. Miller filed a certified partial record on November 5, 2008, and filed this petition the same day. We grant the petition.
Miller was convicted of capital murder and sentenced to death on April 7, 2008. After a timely notice of appeal was filed, Miller’s attorney filed a motion on June 30, 2008, pursuant to Ark. R. App. P. — Civ. 5 to extend the time for filing the transcript. The motion asserted that the court reporter had contacted counsel to inform him that the transcript could not be completed before the record was due to be lodged on July 6, 2008. The State responded that it had no objection to Miller’s motion. The circuit court thus entered an order on July 2, 2008, extending the time for lodging the record until November 6, 2008, seven months following the date of the judgment.
The court reporter has been unable to complete the record by the extended date, and Miller is requesting additional time by means of his timely certiorari petition. We grant the petition and direct that a writ of certiorari be issued to the Circuit Court of Sebastian County to complete and file a certified supplemental record with our clerk within thirty days from the date of this per curiam. At that time, a briefing schedule will be set. | [
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Elana Cunningham Wills, Justice.
June Scamardo appeals the order of the Sebastian County Circuit Court granting summary judgment in favor of Sparks Regional Medical Center (Sparks). On appeal, Scamardo argues that the circuit court erred in refusing to apply the law of the case doctrine to preclude the motion for summary judgment filed by Sparks. Scamardo also contends that the trial court erred in holding that Sparks was entitled to charitable immunity and in refusing to rule that the charitable immunity doctrine should be abolished. Finally, Scamardo asserts that the circuit court erred in finding Rule 56 of the Arkansas Rules of Civil Procedure constitutional. We find no error and affirm.
This is the second time these parties have been before this court. In November 2002, Scamardo filed a medical negligence action against Sparks, Dr. Robert Jaggers, and Sparks’s liability insurer, Steadfast Insurance Company (Steadfast). Under Arkansas case law governing the charitable immunity doctrine before May 2002, a plaintiff could only file an action against a qualified charitable entity by filing the action directly against the entity’s insurer under the direct action statute, Ark. Code Ann. § 23-79-210. See George v. Jefferson Hosp. Ass’n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). This state of the law changed with the decision in Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), where the court distinguished immunity from suit and immunity from liability, holding that immunity from suit means that an entity is not required to stand trial at all, but immunity from liability is only a defense to a suit. Therefore, under Clayborn, the Arkansas direct-action statute — Ark. Code Ann. § 23-79-210 — only provided for direct action against a liability insurer if the insured entity was immune from suit in tort. Id. In Clayborn, this court specifically stated that it had “never said that charitable organizations are altogether immune from suit.” Id. at 566, 75 S.W.3d at 179 (emphasis in original). Citing this court’s precedent in Clayborn, the liability insurer in this case, Steadfast, filed a motion to dismiss Scamardo’s complaint, contending that it was not a proper party defendant.
Scamardo appealed from the circuit court’s order granting Steadfast’s motion to dismiss. This court affirmed the circuit court’s order in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004) (Scamardo I), declining to overrule Clayborn, and noting that “the losing party’s insurer (here, Steadfast) can be bound to pay up to its policy limits any judgment entered against the nonprofit entity (Sparks).” Scamardo I, 356 Ark. at 247, 149 S.W.3d at 318. However, “the prevailing party in a lawsuit against the nonprofit may not execute on the property or assets of the nonprofit to satisfy any judgment.” Id.
Scamardo voluntarily nonsuited her claims against Sparks and Dr. Jaggers a little more than a year after the decision in Scamardo I. Approximately nine months later, this court overruled both Clayborn and Scamardo I in Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005). This court held that the direct action statute and the charitable immunity doctrine required a tort action to be filed directly against the entity’s insurer, because a charitable entity is completely immune from suit and cannot be named as a defendant. Several months after Low was handed down, Scamardo refiled her claims against Sparks and Dr. Jaggers under the one-year savings statue — Ark. Code Ann. § 16-56-125(a)(l) (Repl. 2005), and several unnamed defendants, but failed to name Steadfast as a defendant. Sparks filed an answer to Scamardo’s complaint, arguing that it was a nonprofit hospital and immune from suit under the charitable immunity doctrine, and, therefore, not a proper party defendant. Sparks subsequently filed a motion for summary judgment, alleging that it qualified for charitable immunity under the eight factors listed in George, supra, and arguing that it was not a proper party defendant. The circuit court granted this motion, dismissing Scamardo’s complaint with prejudice. Additionally, the circuit court granted a motion filed by Scamardo to dismiss with prejudice her claims against Dr. Jaggers and the unnamed defendants, all of whom had never been served with process in the action. Scamardo now appeals the circuit court’s order granting summary judgment in favor of Sparks.
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Health Res. of Ark., Inc. v. Flener, 374 Ark. 208, 286 S.W.3d 704 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. The court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. The appellate court’s review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id.
Scamardo first argues that the circuit court erred by granting Sparks’s motion for summary judgment because the law of the case doctrine precluded Sparks from arguing that Scamardo’s refiled complaint against it was barred by the doctrine of charitable immunity. Specifically, Scamardo argues that the law of the case doctrine applies because “Sparks took the position in Scamardo I that it was not immune from suit and that its insurance carrier was not subject to suit under the direct action statute.” Accordingly, Scamardo contends, Sparks should not be allowed “to take inconsistent positions in Scamardo I and Scamardo II and win on each of them.”
This court discussed the law of the case doctrine in R.K. Enterprises, LLC v. Pro-Comp Management, Inc., 372 Ark. 199, 203, 272 S.W.3d 85, 88 (2008), stating as follows:
[T]he law-of-the-case doctrine . . . “prohibits a court from reconsidering issues of law and fact that have already been decided in a prior appeal.” Byme, Inc. v. Ivy, 367 Ark. 451, 457, 241 S.W.3d 229, 235 (2006). This court has explained that “[o]n second appeal, ... the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented.” Vandiver v. Banks, 331 Ark. 386, 391, 962 S.W.2d 349, 352 (1998) (quoting Mercantile First Nat’l Bank v. Lee, 31 Ark. App. 169, 173, 790 S.W.2d 916, 919 (1990)). Stated differently, “[t]he doctrine of the law of the case ... prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.” Vandiver, 331 Ark. at 391-92, 962 S.W.2d at 352.
There is an exception to the law of the case doctrine in this instance. Scamardo I has been overruled. An appellate decision, once overruled, is normally treated as if it had never been. Felton v. Rebasmen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008). We have, therefore, made an exception to the law of the case doctrine in the particular context of overruled decisions. See Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982) (the doctrine of law of the case was inapplicable where, during the interim between the decision in the first appeal and retrial, the first decision had been overruled by other later cases); Am. Ry. Express Co. v. Davis, 158 Ark. 493, 250 S.W. 540 (1923) (decision of Arkansas Supreme Court on first appeal was no longer the “law of the case” on the second appeal, where in the meantime the United States Supreme Court decision followed previously had been overruled).
As a consequence, Scamardo I was not the law of the case and did not prevent the circuit court from applying the Low decision, or from reaching the question of Sparks’ entitlement to charitable immunity. See, e.g., Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008) (plaintiff could not prevail where he had months after the decision in Low, supra, to properly name the insurance company and failed to do so); Felton, supra; cf. Stracener v. Williams, 84 Ark. App. 208, 137 S.W.3d 428 (2003) (plaintiffs could not prevail under prior law where they failed to amend their complaint after Clayborn within the one-year savings statute, and did not act diligently for purposes of the doctrine of equitable tolling).
Turning to the question of Sparks’s entitlement to charitable immunity, Scamardo argues that “Sparks does not qualify for the charitable immunity defense because it was not created and maintained exclusively for charity.” In George, supra, this court listed eight factors to aid in determining whether an entity is entitled to charitable immunity:
(1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
Id. at 211-12, 987 S.W.2d at 713. These eight factors are “illustrative, not exhaustive, and no single factor is dispositive of charitable status.” Id. (citing Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997)).
Review of the evidence in the record shows that Sparks meets six of the eight factors listed in George. The first and second factors are satisfied by Sparks’s Articles of Incorporation, which show that Sparks is “a public benefit corporation” under the provisions of the Arkansas Nonprofit Corporation Act of 1993, and that it is “organized, pledges its assets to, and shall be operated exclusively for charitable, scientific, and educational purposes.”
In a sworn affidavit filed with Sparks’s motion for summary judgment, Dan Hamman, Chief Financial Officer for Sparks, stated that forms filed with the Internal Revenue Service show that the Sparks’s operating margin in 2007 was 0.8% and 0.3% in 2006, indicating a loss from operations. The affidavit also provided that any surplus of funds received by Sparks is used to maintain its “charitable community benefit of providing medical assistance to the public.” Further, the affidavit provided evidence that Sparks provided services and care to persons unable to pay in 2007 totaling $7,562,627, and that under its Charity Care policy, Sparks provides services free of charge to patients unable to pay at the same level of care provided to those who are able to pay. Additionally, the reimbursement provided by Medicare and Medicaid to Sparks was approximately $4.2 million under cost, and Sparks considers this amount to constitute additional charity care. Accordingly there was evidence that Sparks met the third, fourth, fifth, and seventh factors.
As to the sixth factor, although Sparks receives contributions and donations, most of its operating funds are provided through Medicare, Medicaid, and individual patients and/or the patients’ private insurers. In George, this court noted that the nonprofit hospital at issue there only received donations totaling approximately 6% of its financial obligations, but stated that “a modern hospital, with rare exception, would find it extremely difficult to operate wholly or predominately on charitable donations.” George, supra, 337 Ark. at 214, 987 S.W.2d at 714. As was the case in George, the fact that Sparks receives most of its funding through sources other than contributions or donations does not “negate its overriding charitable purpose.” Id.
The eighth factor listed in George concerns an organization’s compensation to directors and officers. Article IX of Sparks’s Articles of Incorporation provides that “[t]he Corporation shall not have or issue shares of stock and no dividends shall be paid and no part of the income of the Corporation shall be distributed to its members, directors, and officers.” It is undisputed that Sparks’s Chief Executive Officer receives approximately $350,000 per year in compensation, and that the next two ranking officers receive approximately $250,000 and $230,000 respectively. Although Scamardo argues that such compensation is evidence that Sparks is “big business” rather than a charitable nonprofit, this court addressed and rejected the same argument in George, stating:
it is not necessary for charitable organizations to have entirely volunteer staff and management. [Jefferson Regional Medical Center’s] size and complexity make knowledgeable, well-qualified personnel essential. Such persons do not readily volunteer their services or serve at rates of compensation markedly lower than market rates.
337 Ark. at 214, 987 S.W.2d at 714. Similarly here, such compensation for the senior administrative positions required to manage Sparks “does not put the hospital in the position of being maintained for private gain, profit, or advantage of its organizers.” Id.
Based on the totality of the evidence shown in the record, circumstances, and the factors this court has adopted to help determine whether an organization is entitled to charitable immunity, the trial court did not err in granting Sparks’s motion for summary judgment. Although Scamardo asserts that these are questions of fact for a jury to decide, in George this court addressed this argument, stating:
We disagree. While there may be fact issues involved, they are not matters of disputed fact. Rather, they are differing legal interpretations of undisputed facts. In such cases, the appellate court should grant summary judgment where reasonable persons would not reach different conclusions based upon those undisputed facts.
Id. at 212-13, 987 S.W.2d at 713. Additionally, Scamardo argues that the charitable immunity doctrine should be abolished. Abolishment of charitable immunity is a public policy decision, and this court has repeatedly stated that public policy is for the General Assembly to decide, not the courts. Med. Liab. Mut. Ins. Co. v. Alan Curtis Enters., Inc., 373 Ark. 525, 285 S.W.3d 233 (2008).
Finally, Scamardo argues that Arkansas Rule of Civil Procedure 56 is unconstitutional, because it denies her the right to a jury trial. This court recently examined and rejected this argument in Anglin, 375 Ark. at 21, 289 S.W.3d at 36, holding that “where there is no factual dispute, there is no constitutional right to a trial by jury.” Here, as noted above, there are no factual disputes; instead, there are differing legal interpretations of undisputed facts.
Affirmed.
Brown, J., concurs.
Sparks’s answer to the first complaint asserted the defense of charitable immunity, but admitting that, although it was immune from any execution against its assets, it was not immune from suit based on the holding in Clayborn, supra. In its answer to Scamardo’s refiled complaint, it stated that it was protected by the charitable immunity doctrine and not a proper party defendant. | [
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Robert L. Brown, Justice.
Appellant, the City of Little Rock (“the City”), appeals from the circuit judge’s order, dismissing the City’s motion for injunctive relief against appellee Pic Package Store, Inc. (“Pic Pac”). The City asserts three points on appeal. We affirm the circuit judge’s order.
On January 18, 2007, in response to numerous criminal violations that had occurred at or near a strip mall (“the mall property”) located at 4401 West 12th Street in Little Rock, the City filed a complaint for an injunction and order of abatement against the owner, mortgagee, and tenants of the mall property pursuant to Arkansas Code Annotated sections 14-54-1503(a), 16-105-401, and 5-74-109. Pic Pac is one of the tenants of the mall property. The City’s complaint alleged that approximately thirty-four criminal violations had occurred in connection with the mall property between August 30, 2005, and November 21, 2006, including multiple instances of loitering, public intoxication, possession of a weapon, and possession of a controlled substance. The City’s complaint prayed that the circuit judge declare the mall property a common nuisance, enjoin the defendants from occupying the property, evict all tenants and residents from the property, and order that the property be closed. The defendants filed separate answers to the City’s complaint.
On March 1, 2007, the parties appeared before the circuit judge for a hearing on the City’s complaint. At the hearing, the parties reached a temporary agreement, whereby the defendants stipulated that at least three criminal acts had occurred at the mall property in violation of Arkansas Code Annotated section 5-74-109, and at least one of the criminal acts had involved a controlled substance in violation of Arkansas Code Annotated section 16-105-402. In exchange, the City agreed to meet with the defendants within ten days of the hearing to discuss the current status of the mall property, the current security measures taken at the property, and the City’s requested relief. The agreement further provided that if the parties were unable to resolve the dispute by agreement, then the City would seek further relief through the circuit court. The circuit judge incorporated the parties’ agreement into a written order that was entered on June 1, 2007.
On September 12, 2007, the City moved for injunctive relief. The City asked the circuit judge to declare Pic Pac a common nuisance under Arkansas Code Annotated section 5-74-109(b) and abate the nuisance by ordering that Pic Pac be closed. The City’s motion referred to the parties’ stipulation in the June 1, 2007 order that at least three criminal acts had occurred at the mall property in violation of Arkansas Code Annotated section 5-74-109. The City also alleged that three additional violent crimes had occurred at the mall property since the parties’ June 1, 2007 agreement. These crimes included a murder and two batteries by gunshot.
On December 20, 2007, the circuit judge held a hearing on the City’s motion for injunctive relief. In an order dated February 4, 2008, the circuit judge dismissed the City’s motion with prejudice and found that:
1. The City of Little Rock failed to establish a link of any kind between the crimes set out in paragraphs 3 and 4 of the Motion for Prohibitive Injunction and an owner, agent or employee of any of the defendant entities or individuals.
2. The City of Litde Rock failed to establish that Pic Package Store, Inc. is a common nuisance pursuant to Ark. Code Ann. § 5-74-109.
The City now appeals.
For its first point on appeal, the City urges this court to declare that Arkansas Code Annotated section 5-74-109 applies to commercial property and not simply to drug houses. Section 5-74-109 provides, in pertinent part:
(a) Intent. The intent of the General Assembly in this section is to enact civil remedies that eliminate the availability of any premises for use in the commission of a continuing series of criminal offenses.
(b) Common nuisance declared. Any premises, building, or place used to facilitate the commission of a continuing series of three (3) or more criminal violations of Arkansas law is declared to be detrimental to the law-abiding citizens of the state and may be subject to an injunction, a court-ordered eviction, or a cause of action for damages as provided for in this subchapter.
Ark. Code Ann. § 5-74-109(a)-(b) (Repl. 2005).
This court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). Our standard of review for issues of statutory construction is well settled:
The basic rule of statutory construction is to give effect to the intent of the legislature. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. 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. 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.
Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 82, 243 S.W.3d 285, 291 (2006) (internal citations omitted).
At the hearing before the circuit court, the parties argued over whether section 5-74-109 with its reference to “premises” applied to all commercial property. The City contends that .the word “premises” includes commercial buildings, when given its ordinary and usually accepted meaning.
The circuit judge, however, did not address this issue, or rule on it, and the City admits as much in its brief when it said: “The trial court in denying the [City’s] motion did not address the issue that the intent of the General Assembly was to include any premise — commercial or residential.” This court has repeatedly held that a party’s failure to obtain a ruling is a procedural bar to the court’s consideration of the issue on appeal. See, e.g., Johnson v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d 407 (2008); Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005). It was the City’s burden to raise this issue and obtain a specific ruling on it. The failure to do so now precludes this court from considering the merits of the City’s arguments on this point.
For its second point, the City asserts that the circuit judge erred by finding that Pic Pac was not a common nuisance under Arkansas Code Annotated section 5-74-109(b). As already noted, the circuit judge found in his February 4, 2008 order that the City “had failed to establish a link” between the alleged crimes and the defendants. This was error, according to the City, because section 5-74-109(b) requires no more proof than a continuing series of three criminal offenses on the property in question. In addition, the City claims that section 5-74-109(b) does not address the actions of people, but rather what occurs on premises and places, and the fact that Pic Pac had taken measures to reduce crime is irrelevant because section 5-74-109(b) does not except property owners who take remedial measures.
To repeat in part, this court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute under the canons of construction previously set forth in this opinion. See McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).
We quote again our statutory law, which defines what constitutes a common nuisance and the remedies available to halt it:
(b) Common nuisance declared. Any premises, building, or place used to facilitate the commission of a continuing series of three (3) or more criminal violations of Arkansas law is declared to be detrimental to the law-abiding citizens of the state and may be subject to an injunction, a court-ordered eviction, or a cause of action for damages as provided for in this subchapter.
Ark. Code Ann. § 5-74-109(b) (Repl. 2005).
The language of section 5-74-109(b) is plain and unambiguous, which means the legislative intent can be determined from the ordinary meaning of the language used. Section 5-74-109(b) defines a common nuisance as “any premises, building, or place used to facilitate the commission of a continuing series of three (3) or more crimes.” Ark. Code Ann. § 5-74-109(b) (emphasis added). When section 5-74-109(b) is construed just as it reads, giving the words their ordinary and usually accepted meaning in common language, it is clear the City was required to prove that the Pic Pac premises had been used to facilitate the commission of the alleged crimes.
The City’s interpretation of this language, however, makes the word “facilitate” superfluous and insignificant, which contradicts our case law. See Bruner, 368 Ark. at 82, 243 S.W.3d at 291 (“This court construes the statute so that no word is left void, superfluous or insignificant, and this court will give meaning and effect to every word in the statute, ifpossible.”). Hence, the City’s interpretation of section 5-74-109(b), which eliminated the phrase “used to facilitate,” does not pass muster.
Giving every word in section 5-74-109(b) its ordinary meaning, we turn next to the issue of whether the circuit judge erred in finding that Pic Pac was not a common nuisance under section 5-74-109(b). Our standard of review for an appeal from a bench trial is not whether there was substantial evidence to support the findings of the circuit judge, but whether the circuit judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id.
The circuit judge orally declared from the bench that the City failed to prove that the Pic Pac premises were used to facilitate the alleged crimes. In his later order, the judge said that the evidence presented at the hearing showed no “link of any kind” between the defendants and the criminal acts occurring on their property. We affirm the finding of the circuit judge, as we conclude that the absence of any link supports the lack of facilitation by Pic Pac. In fact, we conclude that the evidence showed just the opposite because the defendants, including Pic Pac, had taken extensive measures to curb the criminal activity at or near the mall property, including hiring security guards, installing flood lights and surveillance cameras, and building a fence to keep loiterers from going behind the building.
The circuit judge also heard the testimony of Stuart Sullivan, a homicide detective who had investigated the shootings that had occurred at the mall property. He testified that Pic Pac had not been involved either directly or indirectly with any of the shootings, which is the standard under Arkansas Code Annotated section 5-74~109(c). Bob Dailey, the owner of Pic Pac, testified that the crimes in the parking lot were detrimental to his business and that he was continually working with Mr. Rhee, the owner of the strip mall, to improve the security of the property. Dailey added that neither he nor any of his employees had been involved in any of the criminal activity. We hold that the circuit judge’s finding of no facilitation or linkage was not clearly against the preponderance of the evidence.
The City further maintains that it was entitled to a finding that Pic Pac was a common nuisance based on the circuit judge’s June 1, 2007 order, in which he said: “The defendants do not dispute that at least three criminal acts occurred on the real property as described in the [City’s complaint] in violation of Ark. Code Ann. § 5-74-109, and at least one of those criminal acts involved a controlled substance in violation of Ark. Code Ann. § 16-105-402.” However, as the City correctly observes in its brief: “[t]he trial court failed to address this issue.” Again, a party’s failure to obtain a ruling is a procedural bar to the court’s consideration of the issue on appeal. See, e.g., Johnson v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d 407 (2008); Cox v. Miller, 363 Ark. 54, 210 S.W.3d 842 (2005). It was the City’s burden to raise this issue and obtain a specific ruling on it. The failure to do so now precludes this court from considering the merits of the City’s arguments on this point.
For its final point, the City urges this court to declare that Arkansas Code Annotated section 5 — 74—109(j) requires the circuit judge to grant the City equitable relief upon finding that a premises is a common nuisance under section 5-74-109(b). Because we hold that the circuit judge correctly found that there was no common nuisance, it is not necessary to consider this point.
Affirmed.
The City’s motion for injunctive relief was styled “Motion for Prohibitive Injunc-
Although the circuit judge’s order discusses the City’s failure of proof in terms of establishing a link between the crimes and the defendants, the circuit judge ruled from the bench and said,“[i]t hasn’t been presented so far that Pic Pac in any way facilitated that murder ... it certainly doesn’t suggest from what I read as the legislative ... intent that Pic Pac is facilitating particular conduct.”
Arkansas Code Annotated section 5-74-109(c) provides that an injunction may issue to enjoin a person from directly or indirectly permitting or maintaining a public nuisance. The circuit judge, as already referenced, decided this case under section 5-74-109(b).
Dailey testified at the hearing that the agreement was merely that three crimes had occurred, not that the strip mall was a common nuisance. | [
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Annabelle Clinton Imber, Justice.
Appellant Daimler-Chrysler Corporation appeals from a judgment entered against it in the Circuit Court of Columbia County for violation of the Arkansas New Motor Vehicle Quality Assurance Act (“Arkansas Lemon Law”), codified at Ark. Code Ann. §§ 4-90-401 to -417 (Repl. 2001). The judgment awarded Appellee Gaylord Smelser the sum of $41,489.26, plus attorney’s fees, copy costs, and mileage expenses. Appellant raises two points of error on appeal: 1) the circuit court erred in declining to enforce a settlement agreement negotiated by the parties’ attorneys; and 2) the circuit court erred in allowing Appellee to recover copy costs and mileage expenses under Ark. Code Ann. § 4-90-415(c). Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(5) and (b)(1) (2008). We find no error and affirm.
On July 14, 2003, Appellee Gaylord Smelser bought a 2003 Dodge 4WD-diesel truck manufactured by DaimlerChrysler Corporation from a Chrysler dealership in Camden, Arkansas. Almost immediately, he began having problems with the vehicle’s transmission. Beginning in early August 2003, Appellee took the vehicle back to the Camden dealership for repair. Over the course of the next eight months, the vehicle was returned to the dealership a total of six times, but the transmission problem persisted. Appellee, with help from his daughter-in-law, Erin Smelser, then sent two letters to DaimlerChrysler’s customer assistance center. In the first letter dated May 13, 2004, he demanded a repair within ten days under the Arkansas Lemon Law. Ark. Code Ann. § 4-90-406(a)(2) (Repl. 2001). After Appellant failed to respond, Appellee sent a second letter on June 25, 2004, demanding a replacement vehicle or a refund pursuant to Ark. Code Ann. § 4-90-406(b). When Appellant failed to respond to the second letter, Appellee hired attorney David P. Price to represent him.
A complaint was filed against Appellant in the Circuit Court of Columbia County on October 28, 2004. The complaint alleged claims for breach of implied warranty of merchantability and implied warranty of fitness for a particular purpose and for violation of the Arkansas Lemon Law. One year later, on September 23, 2005, Appellant filed a motion for summary judgment or, in the alternative, motion to enforce settlement, alleging that a settlement had been reached on April 6, 2005, between the parties’ attorneys. In his reply to the summary-judgment motion, Appellee disputed the validity of any alleged settlement, claiming that his former attorney lacked authority to settle the matter. The circuit court declined to grant the motion to enforce settlement on the pleadings; instead, at a hearing in January 2007, the court heard testimony concerning the alleged settlement. Shortly thereafter, the circuit court denied Appellant’s summary-judgment motion, finding that “there was not a settlement of the matter.”
In the meantime, Appellee had hired his current attorney, James M. Pratt, Jr., after Mr. Price withdrew as counsel in July 2005. Appellee eventually nonsuited the two warranty claims, and the case went to trial in May 2007 on the remaining claim for violation of the Arkansas Lemon Law. Following a jury verdict in favor of Appellee, the circuit court entered its judgment on June 11, 2007, awarding Appellee the sum of $41,489.26. In a separate order entered on July 18, 2007, the court awarded Appellee attorney’s fees and costs in the amounts of $11,100.00 and $197.50, respectively, pursuant to Ark. Code Ann. § 4-90-415(c). Appellant filed timely notices of appeal.
In its first point on appeal, Appellant argues that the circuit court erred in finding that there was no settlement of the matter between the attorneys. Appellant further suggests that the circuit court should have declared a settlement on the terms it deemed reasonably certain based on the proof. Appellee, on the other hand, contends there was no settlement agreement because the conflicting evidence shows there was no meeting of minds on a material term.
Courts will enforce contracts of settlement if they are not in contravention of law. McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), reh’g denied April 17, 1978. The essential elements of a contract include (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005). Both parties must manifest assent to the particular terms of the contract. Id. Moreover, the terms of a contract cannot be so vague as to be unenforceable. City of Dardanelle v. City of Russellville, 372 Ark. 486, 277 S.W.3d 562 (2008). The terms of a contract-are reasonably certain if they provide a basis for determining the existence of a breach and for giving au appropriate remedy. Id.
In the instant case, Appellant has the burden of proving the existence of a contract. See Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996). Whether or not there was a meeting of the minds is an issue of fact, and we do not reverse a trial court’s fact-finding unless it is clearly erroneous. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
Appellant asserts that the parties’ attorneys reached a settlement agreement. In support of that assertion, Appellant points to a letter faxed by Appellant’s attorney to Appellee’s former attorney, David P. Price, on April 6, 2005. The letter states in pertinent part as follows:
This letter confirms that we have settled this case premised upon the following:
1. $1,000.00 payable to you and your client to be applied toward fees and expenses;
2. Repair of the subject vehicle in accordance with the vehicle inspection conducted by the DaimlerChrysler field representative; this repair will be arranged through your office and will be completed at your local DaimlerChrysler dealership; and
3. In return, your client will execute a Release in favor of Daim-lerChrysler.
On the same day, Appellant’s attorney faxed a letter to the circuit court’s case coordinator informing the court that the case had been settled and requesting that the trial scheduled for April 12, 2005, be canceled. Shortly thereafter, on April 15, 2005, Mr. Price informed Appellant’s attorney that Appellee refused to accept the terms of settlement set forth in the April 6, 2005 letter. On May 10, 2005, Appellant’s attorney sent Mr. Price a release and settlement agreement and consent order of dismissal, but Appellee never signed the documents.
During the hearing on Appellant's motion to enforce the settlement, Mr. Price testified that Appellee instructed him to initiate negotiations on a possible settlement. According to Mr. Price, he relayed the terms of the settlement to his client on April 6, 2005, and Appellee told him to “go ahead” with the settlement. Mr. Price admitted that he never sent Appellee the confirmation letter drafted by Appellant’s attorney and that, during their meeting on April 15, 2005, Appellee denied ever authorizing the settlement. Mr. Price also testified to his understanding that the settlement would include a “lifetime warranty” for the vehicle. Mr. Price acknowledged, however, that he did not read or object to the terms contained in the confirmation letter. Appellee testified that Mr. Price never communicated with him about the settlement offer. In fact, when he called Mr. Price’s office on April 11, 2005, Appellee still thought the case was going to trial on April 12, 2005. In sum, Appellee testified that he never authorized or agreed to the alleged settlement terms. His testimony was corroborated by Erin Smelser, Appellee’s daughter-in-law.
As stated earlier, the April 6, 2005 confirmation letter drafted by Appellant’s attorney provides for the “[rjepair of the subject vehicle in accordance with the vehicle inspection conducted by the DaimlerChrysler field representative; this repair will be arranged through your office and will be completed at your local DaimlerChrysler dealership.” There is no reference in the letter to a “lifetime warranty,” or any time period during which Appellant would be responsible for the repair. Appellee’s former attorney, however, testified without objection that it was his understanding the “[transmission was supposed to be fixed. ... if there was going to be any problems with the transmission that was supposed to be taken care of for the duration of Mr. Smelser’s ownership of the vehicle.” In other words, according to Mr. Price, the settlement included a “lifetime warranty.” Once again, where there is conflicting testimony, the credibility of witnesses is for the trial judge to determine, and the court defers to the superior position of the trial judge in matters of credibility. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). Based upon our review of the record in the instant case, we cannot say that the circuit court clearly erred in finding that there was no settlement of the matter. In view of our affirmance for the reasons stated above, we need not address the issue of whether Appellee’s attorney lacked authority to settle the case.
The circuit court ruled, pursuant to Ark. Code Ann. § 4-90-415(c), that Appellee was entitled to recover copy costs and mileage expenses in the amount of $197.50. For his second point on appeal, Appellant challenges the circuit court’s ruling, citing Rule 54(d) of the Arkansas Rules of Civil Procedure. According to Appellant, Rule 54(d) delineates what costs a prevailing party may recover, and copy costs and mileage expenses are not expressly permitted by the rule. Appellant further posits three reasons why section 4-90-415(c) should not be broadly construed to include mileage expenses or copy costs: (1) statutes providing for costs are strictly construed against the party seeking the award; (2) if the statute is broadly construed, requests for all types of travel and other expenses related to witnesses, attorneys, and paralegals will pour forth; and (3) it is unfair to construe the statute broadly since only “a consumer” can be a prevailing party under the statute.
Appellee, on the other hand, points out that, even assuming “costs” is a term of art under Rule 54(d), section 4-90-415(c) is not limited to the recovery of costs. The statute also allows a consumer to recover “expenses. . . reasonably incurred . . . for or in connection with the commencement and prosecution of the action.” Ark. Code Ann. § 4-90-415(c). Appellee asserts that expenses in this case easily include the cost of copying exhibits and mileage.
We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). In this regard, we are not bound by the trial 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 circuit court relied upon Arkansas Code Annotated section 4-90-415(c) in awarding copy costs and mileage. Section 4-90-415(c) reads as follows:
A consumer who prevails in any legal proceeding under this subchapter is entitled to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based upon actual time expended by the attorney, determined by the court to have been reasonably incurred by the consumer for or in connection with the commencement and prosecution of the action.
Ark. Code Ann. § 4-90-415(c) (Repl. 2001).
The basic rule of statutory construction is to give effect to the intent of the legislature. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (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. When the language of the statute is plain and unambiguous, conveying a clear and definite meaning, we need not resort to the rules of statutory construction. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006). 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. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. We also look to the legislative history, the language, and the subject matter involved. State Office of Child Support Enforcement v. Morgan, supra.
The statute at issue does not define the terms “costs and expenses,” or delineate what types of costs and expenses the legislature intended to include or exclude. Ark. Code Ann. § 4-90-415(c). The only guidance in the statute is that costs and expenses shall include attorney’s fees and shall be “determined by the court to have been reasonably incurred by the consumer for or in connection with the commencement and prosecution of the action.” Id.
Rule 54(d) of the Arkansas Rules of Civil Procedure specifically delineates what fees are taxable as “costs”:
Costs taxable under this rule are limited to the following: filing fees and other fees charged by the clerk; fees for service of process and subpoenas; fees for the publication of warning orders and other notices; fees for interpreters appointed under Rule 43; witness fees and mileage allowances as provided in Rule 45; fees of a master appointed pursuant to Rule 53; fees of experts appointed by the court pursuant to Rule 706 of the Arkansas Rules ofEvidence; and expenses, excluding attorney’s fees, specifically authorized by statute to be taxed as costs.
Ark. R. Civ. P. 54(d)(2) (2008). Even if we assume that costs are limited to those items set forth in Rule 54(d), section 4-90-415(c) also allows a consumer who prevails to recover “expenses,” including attorney’s fees. We do not construe statutes to leave any word void or superfluous. State Office of Child Support Enforcement v. Morgan, supra. Thus, the legislature must have contemplated a distinction between costs and expenses.
“Expense,” as defined in Black’s Law Dictionary, means “[t]hat which is expended, laid out or consumed; an outlay; charge; cost; price.” Black’s Law Dictionary 687 (Revised 4th ed. 1968). The legislature has expressly designated attorney’s fees as a recoverable expense. Otherwise, the only limitation on the recovery of any expenditure or outlay is that the court must determine it to have been reasonable and incurred in connection with the prosecution of an action under the Arkansas Lemon Law. Such a limitation insures against a windfall for Lemon Law claimants. In essence, section 4-90-415(c) seeks to make a prevailing consumer whole.
This interpretation is consistent with other provisions that provide a broad range of remedies to a consumer. Section 4-90-406(b)(1)(B) provides that a consumer can recover all collateral or reasonably incurred incidental charges as part of the replacement or refund. Ark. Code Ann. § 4-90-406(b)(l)(B) (Repl. 2001). Section 4-90-414(b)(6) provides that a consumer may not be charged with a fee to participate in an informal dispute proceeding. Ark. Code Ann. § 4-90-414(b)(6) (Repl. 2001).
Finally, Appellant claims it is unfair to construe the statute broadly since “only ‘a consumer’ can ever be a prevailing party under the statute.” It is evident from the plain language of the Arkansas Lemon Law that the legislature sought to address the hardship a defective vehicle creates for a consumer. Ark. Code Ann. § 4-90-402 (Repl. 2001). The legislature intended that a good-faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specific period of time. The statute also provides for an informal dispute settlement proceeding at the option of the manufacturer. Ark. Code Ann. § 4-90-414 (Repl. 2001). If the manufacturer fails to resolve a good-faith complaint, it will be at the manufacturer’s peril to let the dispute be resolved in court.
The circuit court determined that copy costs and mileage expenses totaling $197.50 were reasonably incurred in connection with the instant litigation. Accordingly, we hold that the circuit court did not err in interpreting section 4-90-415(c) to allow for the recovery of those expenses.
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Per Curiam.
Appellant Robert Maulding seeks an order that all medical information regarding him be redacted in the abstracts, briefs, and addendums. This motion was certified to this court by the court of appeals because it concerns an issue of first impression. Thus, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(b)(l) (2008).
Maulding states that “this is an appeal from an Arkansas Workers’ Compensation Commission case,” and that “the Argument, Abstract, and Addendum” will contain “a lot of personal medical information” that “should not be in the public domain.” He asks this court to order that “all medical information” be redacted by “lining out” with a “permanent black marker.”
Maulding provides no reason for the requested redaction. He provides no convincing argument and no authority to show that his medical information should be excluded from the briefs on appeal. He simply asserts it should be excluded. This court will not consider an argument, even a constitutional one, if the appellant makes no convincing argument or cites no authority to support it. Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008). Also, if the point argued is not apparent without research, this court will not hear the matter. Id.
Further, the issue is moot. At issue are documents in the addendum. An addendum appends to the brief documents that are found in the record. See Ark. Sup Ct. R. 4-2(a)(8) (2008) (The addendum must include an index of where any item can be found in the record.) Thus, the very information Maulding seeks to redact was disclosed below and already is in the record. Although Maulding fails to cite it, Administrative Order No. 19(VI)(A) specifically provides that where the information has already been disclosed in open court and is included in the verbatim transcript of court proceedings, the information is not excluded from public access.
The motion is denied. | [
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Robert L. Brown, Justice.
This appeal involves a medical malpractice action brought by appellants Charles and Linda Archer (“the Archers”) on behalf of their son, Mason Archer, against multiple parties, including appellee, Sisters of Mercy Health System, St. Louis Pooled Comprehensive Liability Program (“the Liability Pool”). The circuit judge entered an order dismissing the Liability Pool. We reverse and remand.
The following facts are gleaned from the Archers’ pleadings and pretrial motions. On March 12, 2005, the Archer family was in an automobile accident while returning to their home in Arkadel-phia, after a trip to Hot Springs. The driver of the other vehicle involved in the accident, who was intoxicated at the time, died in the accident. The Archers sustained serious injuries. The injuries suffered by Mason Archer (“Mason”), who was six years old at the time of the accident, are the subject of the instant lawsuit.
When emergency personnel arrived at the crash scene, they discovered that Mason had suffered a fractured wrist. He also had visible facial injuries. Mason was moving all four extremities at the scene, but the ambulance crew placed him on a spinal board and in a cervical collar until doctors could determine whether he had suffered any spinal cord injuries. The ambulance took Mason to the emergency room at St. Joseph’s Mercy Health Center (“St. Joseph’s”).
The Archers allege that St. Joseph’s and the doctors who treated Mason acted negligently in providing medical care, with the result that Mason is permanently paralyzed from the chest down. Their complaint asserts that when Mason arrived at the emergency room, he complained to a nurse of abdominal pain and pain in his arms and legs, that he was then examined by Dr. Bethany McGraham and subsequently by Dr. James Tutton, and that Mason was eventually transferred to Arkansas Children’s Hospital where it was determined that he had serious spinal-cord injuries.
The essence of the Archers’ negligence claim is as follows: Dr. Tutton ordered a CT scan of Mason’s head, neck, abdomen, and pelvis at St. Jospeph’s, which was not read by a doctor for almost four hours. When the results were eventually interpreted, they were incorrectly determined to be negative. After the test results came back, a nurse removed the cervical collar from Mason and allowed him to move around. The collar was removed before Mason was examined by a physician, and a nurse “pulled on Mason’s arm” in an attempt to help him stand up, resulting in permanent paralysis.
On March 9, 2007, the Archers filed suit against various parties. They did not name the Liability Pool then because two months before the Archers filed their original complaint, this court handed down a decision specifically holding that the Liability Pool was not an insurer for purposes of the direct-action statute, codified at Arkansas Code Annotated section 23-79-210. See Sowders v. St. Joseph’s Mercy Health Ctr., 368 Ark. 466, 475, 247 S.W.3d 514, 521 (2007). Later, in response to the decision in Sowders, the Arkansas General Assembly amended the direct-action statute to expressly state that “[a]ny self-insurance fund, pooled liability fund, or similar fund maintained by a medical care provider for the payment or indemnification of the medical care provider’s liability for medical injuries under § 16-114-201 et seq. shall be deemed to be liability insurance susceptible to direct action under this section.” Act of Mar. 30, 2007, No. 750, 2007 Ark. Acts 3963 (hereinafter “Act 750”).
On August 27, 2007, after the enactment of Act 750, the Archers amended their original complaint to name the Liability Pool as a defendant to the instant action. On November 9, 2007, the Liability Pool moved to dismiss the amended complaint on the basis that Act 750 could not be applied retroactively because it had created a new cause of action against the Liability Pool. On March 11, 2008, the circuit judge held a hearing on the motion, and on April 25, 2008, she handed down a letter ruling in which she explained her decision to grant the Liability Pool’s motion. The judge specifically found that:
[T]he amendment to the direct-action statute changed a fund which was previously not insurance to insurance. This is a substantive change for the Program [Liability Pool] to be prepared to pay potential claims it had not previously been required to pay. It created a new right to sue which tort victims did not have prior to the law. It enlarged the responsibility of the Program [Liability Pool] to include the accumulation of funds adequate to pay potential new claims. All of the Arkansas cases on this subject indicate prospective application only for such substantive changes.
On May 8, 2008, the circuit judge entered an order dismissing the Liability Pool and a certificate of final judgment, pursuant to Arkansas Rule of Civil Procedure 54(b).
The Archers contend on appeal that Act 750, which permits direct-action lawsuits against pooled-liability funds and deems such funds to be liability insurance for such lawsuits, is remedial in nature and, as such, should be applied retroactively so as to effectuate the intent of the legislation.
We first consider the Liability Pool’s claim that this court should not consider the Archers’ arguments that the direct-action statute should be construed liberally, that retroactive application is necessary to effectuate its intended purpose, and that rules of statutory construction require that Act 750 be retroactively applied. The Liability Pool initially asserts that the Archers did not raise these issues before the circuit judge. It, however, is wrong on this point. The record clearly indicates that the Archers raised these issues during the March 11, 2008 hearing. Further, these points are not separate issues on appeal. Rather, if the court determines that Act 750 is remedial, they necessarily become part of the court’s analysis in determining whether to apply the act retroactively.
This court has consistently set forth the law regarding retroactive application of statutes. See, e.g., McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). We have said:
Retroactivity is a matter of legislative intent. Unless it expressly states otherwise, we presume the legislature intends for its laws to apply only prospectively. However, this rule does not ordinarily apply to procedural or remedial legislation. The strict rule of construction does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only support a new or more appropriate remedy to enforce an existing right or obligation. Procedural legislation is more often given retroactive application. The cardinal principle for construing remedial legislation is for the courts to give appropriate regard to the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed.
McMickle, 369 Ark. at 338-39, 254 S.W.3d at 746 (citing Bean v. Office of Child Support Enforcement, 340 Ark. 286, 296-97, 9 S.W.3d 520, 526 (2000)). The general rules also apply to amendatory acts. See Gannett River States Publ’g Co. v. Ark. Ind. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).
This court has also observed that:
Although the distinction between remedial procedures and impairment of vested rights is often difficult to draw, it has become firmly established that there is no vested right in any particular mode of procedure or remedy. Statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedures, are not within the general rule against retroactive operation. In other words, statutes effecting changes in civil procedure or remedy may have valid retroactive application, and remedial legislation may, without violating constitutional guarantees, be construed ... to apply to suits on causes of action which arose prior to the effective date of the statute .... A statute which merely provides a new remedy, enlarges an existing remedy, or substitutes a remedy is not unconstitutionally retrospective ....
JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 412, 183 S.W.3d 560, 565-66 (2004) (citing Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983)).
We turn then to the central question of whether Act 750, amending Arkansas Code Annotated section 23-79-210, is reme dial in nature. In Rogers v. Tudor Insurance Co., we said, “[djirect action statutes are remedial in nature and are liberally construed for the benefit of injured parties and to effectuate the intended purposes.” 325 Ark. 226, 234, 925 S.W.2d 395, 399 (1996) (citing 12A Couch on Insurance 2d §§ 45:798, 45:800, at 455, 458 (1981)). Despite this statement of the law, the Liability Pool maintains that the Rogers language is dicta and that this court should decline to hold that Arkansas’s direct-action statute is remedial. In support of its position, the Liability Pool directs this court to additional language from Couch on Insurance, which indicates that some jurisdictions treat direct-action statutes as creating a substantive right in the claimant to sue the insurance company. See 7A Lee R. Russ & Thomas Segalla, Couch on Insurance 3d § 104:54, at 104-82 (1999). According to the Liability Pool, this court should “consider the text [Couch] in its entirety” because “the view of direct action statutes being procedural in nature is not universally applied.”
We disagree with the Liability Pool’s analysis. This court should rely on the quoted language from Rogers that direct-action statutes are remedial in nature as precedent. The Rogers court studied Couch on Insurance and cited as authority language from Couch that direct-action statutes are remedial in nature, even though the treatise also included the reasoning that some jurisdictions use to hold that direct-action statutes create substantive rights. The clear message from Rogers is that this court was persuaded by the view that the statute is remedial in nature.
The Liability Pool goes on and claims that Act 750 cannot be remedial because it affords the Archers a new legal right and imposes a new obligation on it. In essence, it argues that when the negligence cause of action arose, the Archers did not have a right to sue the Liability Pool, and it was not obligated to pay damages on the claim. Accordingly, it asserts that Act 750 operates to give plaintiffs a new cause of action against pooled-liability funds and, therefore, cannot be remedial in nature. We disagree.
Act 750 did not create a new cause of action. The negligence cause of action that is the heart of the Archers’ claim is grounded in this state’s common law and is regulated by statute. See Ark. Code Ann. §§ 16-114-201 to -212 (Repl. 2006 & Supp. 2007) (Actions for Medical Injury). The statutes govern “any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury.” Id. § 16-114-201 (Repl. 2006). The application of the charitable immunity doctrine, however, operates to prevent some injured parties from recovering damages for negligence against charitable hospitals directly. See Low v. Ins. Co. of N. Am., 364 Ark. 427, 440, 220 S.W.3d 670, 680 (2005) (certain charitable entities are immune from tort liability).
The direct-action statute, codified at section 23-79-210, is a statutory remedy because it provides a new or substitute remedy for the underlying claim of negligence in cases where the plaintiff cannot recover directly from a negligent charitable hospital. See JurisDictionUSA, Inc., 357 Ark. at 412, 183 S.W.3d at 566 (a statute providing a new or substitute remedy can be applied retroactively). After this court’s decision in Sowders, parties injured as the result of negligence on the part of charitable hospitals, who did not carry traditional liability insurance but did contribute to a pooled-liability fund, were left without a remedy for the hospital’s negligence. 368 Ark. 466, 247 S.W.3d 514. As already noted, the General Assembly responded with Act 750 by amending the direct-action statute so that it now expressly states that pooled-liability funds are liability insurers under the statute. Contrary to the Liability Pool’s contention, this amendment did not create a new legal right for injured parties. Instead, it clarified that those injured parties have a remedy against a liability pool for the underlying claim of negligence when charitable immunity of a hospital is involved.
Despite this, the Liability Pool relies heavily on this court’s often-cited language that a remedial statute cannot “impose a new obligation.” See McMickle, 369 Ark. at 339, 254 S.W.3d at 746. Its position is that Act 750 imposed a new obligation by requiring it to pay damages to the Archers in the event a jury finds that St. Joseph’s was negligent in providing medical care to Mason. The Liability Pool relies on this court’s decision in Estate of Wood v. Arkansas Department of Human Services to support its argument. 319 Ark. 697, 894 S.W.2d 573 (1995). We do not agree that the Estate of Wood case militates in favor of the Liability Pool’s position.
At issue in Estate of Wood was an act that permitted the Arkansas Department of Human Services (DHS) to make a claim against a decedent’s estate for medicaid payments made to the decedent prior to death. Id. at 698, 894 S.W.2d at 574. This court refused to apply that act retroactively because it “appear[ed] to create a new legal right which allow[ed] DHS to file a claim against the estate of the deceased.” Id. at 701, 894 S.W.2d at 575. The court went on to note that “[p]rior to the enactment [of the act, the decedent] had no reason to consider the medicaid payments as anything other than an outright entitlement. After the enactment it was as if she had a loan from DHS to be repaid from the assets of her estate.” Id. at 701, 894 S.W.2d at 576.
The Liability Pool contends that, like in Estate of Wood, “the remedy that Appellants assert is a new legal right” and it “is now burdened with the new obligation to plaintiffs bringing such suits.” The Liability Pool, though, misapplies the Estate of Wood decision to the instant matter. In that case, DHS had no right to recover medicaid payments from a decedent’s estate prior to the enactment of the act. In this case, the Archers already had the right to sue in negligence and recover from a liability insurer, under the direct-action statute, prior to the enactment of Act 750. Act 750 merely clarified an avenue of relief for the Archers to pursue under that statute. The Liability Pool also advocates that the “obligation” imposed on the decedent in Estate of Wood, to repay DHS the money she received in benefits during her life, is analogous to its “new obligation” to pay damages to the plaintiffs under the direct-action statute. However, the proper interpretation of Estate of Wood is that the legislative act in that case interfered with the decedent’s vested right to receive benefits as an “outright entitlement.” Id. at 701, 894 S.W.2d at 576. In the instant case, Act 750 does not disturb any of the Liability Pool’s vested rights.
Furthermore, the Liability Pool’s argument that Act 750 cannot be remedial because it imposes an obligation on it to pay damages is unpersuasive because this court has held that statutes and court rules are remedial in certain cases and can be applied retroactively even if the result is that a party may have to pay damages it otherwise would not have previously had to pay. See, e.g., Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007) (estate permitted to proceed with a wrongful death claim even though it failed to comply with the procedural requirements of the statute at the time the suit was filed; court applied an amendment retroactively); McMickle, 369 Ark. 318, 254 S.W.3d 729 (plaintiff permitted to seek loss-of-life damages against a defendant even though the statute was amended to allow for such damages after the suit was filed; court applied the changes to the statute retroactively); JurisDiction USA, Inc., 357 Ark. 403, 183 S.W.3d 560 (applied an amendment to Ark. R. Civ. P. 55(f) retroactively and reversed a default judgment under the previous version of the rule; allowed the plaintiff to proceed with the claim).
We are further influenced in our decision by the fact that the Liability Pool is a self-insurance program administered and maintained by the Sisters of Mercy Health System, which does business in many states, but in Hot Springs as St. Joseph’s. Hence, the Liability Pool is not a separate, unrelated, and distinguishable third party. It is a fund that clearly is under the umbrella of the same non-profit corporation that runs St. Joseph’s. It also receives contributions from Sisters of Mercy hospitals throughout a multi-state region, including St. Joseph’s, to cover medical malpractice claims. In some of those states, Sisters of Mercy hospitals are not protected by charitable immunity, as St. Joseph’s is in Arkansas, which means the Liability Pool pays malpractice claims against those hospitals. It is difficult under these facts to accept the proposition that the Liability Pool qualifies as a new party, brought into this matter and burdened with a new obligation imposed by virtue of Act 750.
Because we hold that Act 750 is remedial in nature, this court must then apply the cardinal principle for construing remedial legislation and examine what is “the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed.” McMickle, 369 Ark. at 339, 254 S.W.3d at 746. Act 750 was clearly enacted to reverse this court’s decision in Sowders and to permit parties to recover directly from pooled-liability funds like the Liability Pool. Act 750 operates to provide injured parties with a remedy when there otherwise would have been none. Again, this court has said that “direct-action statutes are remedial in nature and are liberally construed for the benefit of injured parties.” Rogers, 325 Ark. at 234, 925 S.W.2d at 399 (emphasis added). Using these principles of the law, we apply Act 750 retroactively, and we reverse the circuit judge’s order, which dismissed the Liability Pool as a defendant in the instant action.
Reversed and remanded.
The Archers added the Liability Pool as a named defendant in their First Amended Complaint.
St. Joseph’s has denied that the cervical collar was removed.
The Archers initially named Sisters of Mercy Health System, St. Joseph’s Mercy Health Center, Bethany A. McGraham, M.D., James E.Tutton, M.D., Hot Springs Radiology Services, Ltd., Mark S. Russell, M.D., Mark B. Robbins, M.D., Deanna L. Shatwell, R.N., and Paula Scheck, R.N.
St. Joseph’s is a member of the Liability Pool, which is a pooled-liability fund administered and maintained by Sisters of Mercy Health System.
The direct-action statute, Arkansas Code Annotated section 23-79-210, which Act 750 amended, reads that “[w]hen liability insurance is carried by any cooperative non-profit corporation, association, or organization... not subject to suit in tort... the person so injured or damaged shall have a direct cause of action against the insurer.” Ark. Code Ann. §23-79-201 (Supp. 2007).
The section cited by the Liability Pool primarily addresses choice of law issues pertaining to direct-action statutes, which are not relevant to the current analysis. | [
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Donald L. Corbin, Justice.
Appellants, James A. Bryant and Carol Sue Bryant, as trustees of a revocable family trust, and their son James P. Bryant, appeal the order of the Searcy County Circuit Court granting summary judgment to Appellees, J.W. Hendrix, Mark Treadwell, and Shawn Treadwell. For reversal, Appellants contend the circuit court erred as a matter of law in ruling that the statute of limitations had run on their claims for trespass and encroachment stemming from the removal of timber on adjoining property. Specifically, Appellants contend that the provisions of Ark. R. Civ. P. 15(c) governing relation back of amendments in pleadings applies to substitutions of plaintiffs as well as defendants and that this court’s decisions on this issue in wrongful-death cases should not be extended to apply to this case. The questions presented in this appeal require interpretation of court rules and clarification of the law. Accordingly, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(5) and (6). We find no error and affirm.
James A. Bryant and Carol Sue Bryant filed a complaint in Searcy County Circuit Court on September 13, 2002, seeking treble damages for trespass and removal of timber pursuant to Ark. Code Ann. § 18-60-102 (1987). The complaint alleged that they owned real property adjoining that owned by J.W. Hendrix and that, pursuant to an agreed settlement in a previous case, the Bryants and Hendrix walked the boundary lines of their properties and located the corners of their land. The complaint further alleged that on or about September 1, 2002, Mark Treadwell and Shawn Treadwell acted pursuant to Hendrix’s direction and removed the existing boundary fence between the properties and trespassed upon the Bryants’ property to a distance of about 100 feet and removed timber therefrom, including a black cherry tree more than 100 years old. In addition to seeking treble damages under section 18-60-102, the complaint also sought punitive damages, alleging the trespass was intentional. This complaint was voluntarily dismissed without prejudice on September 7, 2005.
James A. and Carol Sue Bryant then refiled their lawsuit by filing an amended complaint on August 8, 2006. The amended complaint noted that the boundary line between the Bryants and Hendrix had been established by a survey. James A. and Carol Sue Bryant amended their complaint again on December 15, 2006; this complaint was entitled “Third Amended Complaint” and added as party plaintiff their son, James P. Bryant, as the owner of some of the real property in question. The third amended complaint also alleged the value of timber wrongfully removed to be $5,368 and the cost of clearing debris left on their land to be $7,000. The complaint was amended for a fourth time on November 28, 2007, to reflect that James A. and Carol Sue Bryant were owners of the property as trustees of the Bryant Family Revocable Trust. The fourth amended complaint also alleged for the first time that piles of deadfall and timber slash remaining on their land constituted a continuing trespass and that Appellees had erected a fence along the southern and western edge of the Bryants’ property, which was alleged to be an encroachment and continuing trespass.
At the hearing on the Treadwells’ motion for summary judgment, Appellees stated that their motion was based on the fact that the plaintiffs named in the original complaint filed September 13, 2002, James A. and Carol Sue Bryant, did not own the property in question because it had been placed in the family trust in April 2001. Appellees cited the trial court to Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), and argued that the statute of limitations had run in the present case because, according to Rhuland, whenever an amendment to a complaint substitutes a new plaintiff, such amendment is a new cause of action and does not relate back to the original complaint. Appellants responded that Rhuland should not be applied to the present case for trespass and encroachment because it was a wrongful-death case. Appellants maintained that the applicable law was the doctrine of relation back of amended pleadings as found in Ark. R. Civ. P. 15(c).
The circuit court issued a letter opinion filed February 7, 2008, and entered an order on April 29, 2008, granting Appellees’ motion for summary judgment on all claims. The order stated that the statute of limitations barred all claims and that the doctrine of relation back did not apply to the substitution of plaintiffs. This appeal followed.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008). On appeal, Appellants do not contend there are disputed issues of fact; rather, they argue the circuit court erred as a matter oflaw in granting summary judgment on the basis of the statute of limitations.
For reversal of the summary judgment, Appellants contend that the amendment of their complaint in December 2006 to add James P. Bryant as a plaintiff and again in November 2007 to substitute James A. and Carol Sue Bryant as trustees of the family trust should relate back to their original complaint, which was filed in September 2002, well within the three-year limitations period of the alleged trespass, which also occurred in September 2002. Appellants rely on Rule 15(c), which provides as follows:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a 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.
Here, Appellants maintain that Appellees are not prejudiced by the substitution of the proper plaintiffs because the original complaint was timely filed, and Appellees had notice of the complaint. Appellants contend that the conduct asserted in the amended complaint arises out of the same conduct asserted in the original complaint, and therefore Rule 15 should operate to allow relation back in this case. Appellants also point out that under Rule 17 of the Arkansas Rules of Civil Procedure, if Appellees had moved to dismiss the case for failure to be prosecuted in the name of the real party in interest, Appellants would have been allowed a reasonable time to substitute the real party in interest. However, as discussed later herein, Appellants overlook the mistaken-identity requirement of Rule 15(c)(2)(B).
We observe that our Rule 15(c) is expressly written in terms of amendments or changes to the “party against whom a claim is asserted[.]” Appellants ask us to hold that the rule should be applied to allow amendments or changes to plaintiffs as well. We decline to so hold.
The issue of substitution of plaintiffs has recently been presented to this court in the context of claims for wrongful death and survival. See, e.g., Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2; see also St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002). Very recently, we cited these cases with approval in the context of a bankruptcy estate. Bibbs v. Cmty. Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008). Bibbs involved plaintiffs who filed suit asserting a claim that was part of their bankruptcy estate. The plaintiffs originally filed suit as individuals, but then after the statute of limitations had run, amended the complaint to add the bankruptcy trustee as plaintiff. Bibbs observed that for the relation-back doctrine to apply, there must be valid pleadings to amend in the first place, and there was not a valid complaint in the first place because the original plaintiffs lacked standing and were not the real party in interest, rather the bankruptcy trustee was. Bibbs also cited St. Paul, one of the wrongful-death cases cited previously herein, and stated that an amended complaint that substitutes the original plaintiffs and replaces them with entirely new plaintiffs does not constitute an amendment to the original complaint but rather is the filing of a new lawsuit. See Bibbs, 375 Ark. 150, 289 S.W.3d 393.
Although the most recent cases on this subject decided by this court involved statutes mandating a suit be maintained by a specific party as plaintiff, the law in this state concerning the substitution of other types of plaintiffs has been well settled for decades. In Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971), this court cited Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938), and American Railway Express Co. v. Reeves, 173 Ark. 273, 292 S.W. 109 (1927), and stated “[t]hose cases stand for the proposition so well put by 8 A.L.R. 2d 57 (1949)”:
It 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.
Ark-Homa Foods, 251 Ark. at 664, 473 S.W.2d at 911. The same principle applies to plaintiffs who are existent, but lack standing and are not the real party in interest. See Bibbs, 375 Ark. 150, 289 S.W.3d 393. When discussing this issue over eighty years ago in the context of different names of corporations who were plaintiffs, this court observed:
It is a matter of extreme doubt that the St. Louis S.W. R. Co. could maintain a suit in the name of the Cotton Belt Railroad Company, though the two names designate only one person. It would not be a matter of mistake if it filed a suit under such name or style, because it must recognize its own corporate existence and corporate name. There is a difference in being made a defendant under one or two or more names by which a person or corporation might be known and in suing and attempting to maintain litigation under such an appellation which it, itself, knew was not correct.
Floyd Plant Food, 197 Ark. at 265, 122 S.W.2d at 465-66.
In the present case, the original complaint and subsequent amendments all related to the same conduct alleged as a trespass. Appellees were on notice they would need to defend the trespass action. It is not, however, understandable that the Bryants or their counsel could be mistaken about the differing and distinct identities of the Bryants as individual landowners, their son as landowner, and their family trust as landowners. The Bryants transferred some of their land to their son in 1986. They created their family trust roughly one and one-half years prior to filing their first complaint in this case. It is not a matter of mistake, because the Bryants and their counsel must have recognized the existence of their family trust and their deed to their son. We therefore conclude on the facts here presented according to the long-standing law of this state that the substitution of plaintiffs in subsequent pleadings does not relate back to the date of the original complaint.
We are aware'that Appellants cite us to the corresponding Rule 15 of the Federal Rules of Civil Procedure and authority applying that rule. See Plubell v. Merck & Co., 434 F.3d 1070 (8th Cir. 2006); see also Crowder v. Gordons Transps., Inc., 387 F.2d 413 (8th Cir. 1967). An analysis of these federal authorities would prolong this discussion needlessly, given the long-standing law of this state to the contrary.
Appellants contend that even if their claim for trespass is barred as untimely, they have also alleged a continuing trespass and encroachment from the piles of debris left on their land as well as the erection of a new fence. Appellants contend there is a seven-year statute of limitations applicable to these claims. Ark. Code Ann. § 18-61-102 (Repl. 2003). Appellants have not cited us to any authority that this statute applies to the facts of this case, and it is not apparent to us that it does. Moreover, although the circuit court granted summary judgment on “all claims,” there was no ruling in either the court’s letter opinion or the order regarding this statute. Accordingly, this issue is not preserved for our appellate review. We do not review on appeal matters on which the trial court did not rule, and the party raising the point on appeal has the burden to obtain the ruling. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).
The order granting summary judgment is affirmed.
Imber, J., not participating.
As it turns out, they were not the owners of the land in question, as they had previously transferred ownership to a revocable family trust they created in April 2001.
Hendrix joined in the motion for purposes of obtaining an appealable order pursuant to Ark. R. Civ. P. 54(b). Hereinafter, Hendrix and the Treadwells are collectively referred to as “Appellees.” | [
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Jim Gunter, Justice.
Appellant Cameron Williams was conJ victed of two counts of capital murder and now appeals his conviction, asserting that the trial court erred in denying his motion for directed verdict because the State failed to sufficiently corroborate his accomplices’ testimony. Because this is a criminal appeal in which life imprisonment has been imposed, this court has jurisdiction under Arkansas Supreme Court Rule 1-2(a) (2). We find that appellant’s argument is not preserved for our review and affirm.
On the night of June 5, 2006, Sean Johnson and Monte Johnson were shot and killed in Hindman Park in Little Rock. After a ten-month investigation, appellant, Albert Reed, and Nathan Gilcrease were charged, as accomplices, with kidnapping and capital murder, and Latifah Johnson, a friend of appellant’s, and Mariah Powell, Reed’s then-girlfriend, were charged with hindering apprehension or prosecution.
At appellant’s trial, the following pertinent testimony was presented. Mariah Powell testified that on June 5, 2006, she and Latifah Johnson went with the victims to a house on Reck Road, which is where she was living at the time and where she knew Reed was waiting. Powell testified that she knew Reed was going to beat up Monte Johnson, with whom she had a past sexual relationship, due to her continued contact with Monte and an ongoing dispute between Reed and Monte over some stolen property. She testified that when they arrived at the house on Reck Road, she saw Nathan Gilcrease’s car parked next door. She testified that she, Sean, and Monte walked into the house and into a back bedroom, where appellant suddenly jumped out of the closet holding a handgun. She testified that Gilcrease then came in the bedroom holding a “chopper,” meaning a rifle. She testified that Reed began questioning the victims about his stolen property, and appellant hit Sean in the face with the gun. Powell testified that she had not expected there to be guns there, and she ran from the house because she was scared. She stated that she returned to the house on Reck Road about an hour later to pick up some of her belongings, and she saw blood on the cover of the bed. She testified that, after that night, she overheard appellant talking to his girlfriend on the phone and joking about killing the victims. She testified that appellant told her that if she went to the police, he would kill her. Powell insisted that she had not set up the victims to be killed and that she thought they were just going to fight.
Colleen Wright, appellant’s girlfriend and the mother of his child, testified that about two weeks after the murders, she contacted the police and told them she had information about the killings. She told the police that a girl had set up the victims and that the shooters had taken the victims to Hindman Park. She testified that this statement was not true and that she only said it because she was mad at appellant. Wright testified that she gave another statement to the police on July 12, 2006, in which she named Reed as one of the shooters and told police that Reed had a dispute with one of the victims over his girlfriend, “Red” (one of Powell’s street nicknames is “Red”). She testified that she told police that she saw appellant the day after the murders, that he told her that he, Reed, and Gilcrease had beat up the victims and put them in the trunk of Monte Johnson’s car, and that he had “merked some dudes in the park.” She testified that appellant actually told her that he hadn’t done anything in the park, and she was just making up the information that she gave to the police. She testified that appellant had never admitted to taking part in the murders.
Detective J.C. White with the Little Rock Police Department testified about the various statements given by Colleen Wright and also testified about his interview with appellant after appellant’s arrest. Appellant’s recorded statement was played for the jury. In that statement, appellant said that he, Reed, and Gilcrease had gone to the house on Reck Road on the night of June 5, 2006. He stated that after Mariah Powell arrived with Sean and Monte, Reed began questioning Monte about his stolen property. Appellant stated that Reed began hitting Monte with his hand and that Gilcrease had a gun pointed at Monte. Appellant said he did not want to be a part of what was going on and wanted to go home, so he went outside and got in Gilcrease’s vehicle to wait for him. Appellant said that when Reed came out of the house, he had a gun and ordered Sean and Monte into the trunk of Monte’s car. Appellant stated that Reed then drove Monte’s car to Hind-man Park, and he and Gilcrease followed in Gilcrease’s vehicle. According to appellant, he stayed in the vehicle while Reed and Gilcrease opened the trunk of Monte’s car, shot several times into the trunk, and then asked appellant for some duct tape that was in Gilcrease’s vehicle. Appellant said he threw them the duct tape. Appellant stated that Monte and Sean tried to run away and were shot by Reed and Gilcrease.
Albert Reed testified that he was involved in the murders of Sean and Monte Johnson and that he had pled guilty to two counts of murder in the first degree. He testified that while he was present at Hindman Park at the time of the shooting, it was appellant and Gilcrease who fired the guns. Reed testified that he had intended to confront Monte about his relationship with Powell, but appellant and Gilcrease both had guns and began hitting the victims with the guns. Reed stated that he addressed Gilcrease by name and told him to stop hitting, and Gilcrease became angry and said “they know who I am now” and that he had to kill them now. Reed testified that appellant retrieved some duct tape from another room and that Gilcrease duct-taped the victims while appellant held them at gunpoint. Reed stated that Gilcrease put the victims in the trunk of Monte’s car and directed Reed to drive the car to Hindman Park. Once they were at the park, according to Reed, Gilcrease and appellant shot the victims as they tried to run away.
At the close of the State’s case, appellant made the following directed verdict motion:
Okay, Judge, the Defense will move for a directed verdict specifically that — by stating that the State has not — as the State has failed to prove a prima facie case as to the kidnapping allegation, specifically, that has been alleged in the felony information. The State has failed to produce proof which taken in the light most favorable to the State would prove that my client participated in any — any way with the actual kidnapping itself. As a matter of fact, the proof actually showed to the contrary. The Defense would further move that — no, I’ll — we’d just ask the case to be dismissed, Your Honor.
The court denied the motion and its renewal at the close of all the evidence. Appellant was found guilty of two counts of capital murder and sentenced to two life sentences without the possibility of parole, to be served concurrently. He then filed a timely appeal to this court.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclu sion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
On appeal, appellant argues that the State failed to produce sufficient evidence of his participation in the kidnapping, specifically by failing to corroborate the accomplice testimony of Albert Reed and Mariah Powell. But, as illustrated by the quoted motion above, this is not the same argument advanced by appellant at trial. At trial, appellant advanced only the general argument that the State had failed to prove that he participated in the kidnapping and did not raise the issue of accomplice corroboration. We also note that appellant did not request a finding that Reed and Powell were accomplices as a matter or law, nor did he request a jury instruction on the required corroboration of accomplice testimony.
This court has consistently held that a party is bound by the scope of the arguments made at trial, and we will not consider an argument raised for the first time on appeal. Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004). In addition, Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires a motion for directed verdict to “state the specific grounds therefor,” and this requirement extends to any challenge to the sufficiency of the evidence corroborating an accomplice’s testimony. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339 (2006). The failure to challenge the sufficiency of accomplice-corroboration evidence in a directed verdict motion precludes appellate review on that ground. Id. This is true even in cases where a sentence of life imprisonment is imposed, as it is this court’s duty, pursuant to Ark. Sup. Ct. R. 4-3(h), to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).
Pursuant to Arkansas Supreme Court Rule 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found. Id.
Affirmed. | [
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Per Curiam.
Appellant South Flag Lake, Inc., by and through its attorney, John P. Verkamp, has filed a motion for rule on clerk. On January 17, 2008, the circuit court entered an order extending appellant’s time to file the transcript on appeal until May 23, 2008. Appellant states that when it attempted to tender the record to this court’s clerk on May 22, 2008, the clerk declined to docket the record due to lack of compliance with Rule 5(b)(1)(C) of the Arkansas Rules of Appellate Procedure-Civil.
The circuit court’s January 17, 2008 order states that “[t]he Defendant does not object to the Plaintiffs request for extension of' time,” but fails to specifically state that all parties had the opportunity to be heard on the motion. South Flag Lake, Inc. argues that the circuit court could not have had knowledge of Gordon’s position regarding the motion unless it had heard from Gordon and that Gordon, therefore, must have had the opportunity to be heard.
Arkansas Rule of Appellate Procedure — Civil 5(b)(1) provides:
(b) Extension of Time.
(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:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
Ark. R. App. P.-Civ. 5(b)(1) (2008).
This court has held that it expects strict compliance with the requirements of Rule 5(b) and that it does not view the granting of an extension as a mere formality. See, e.g., Winrock Grass Farm, Inc. v. Metropolitan Nat’l Bank, 373 Ark. 515, 517, 284 S.W.3d 521, 522 (2008); Kelly v. Ford, 373 Ark. 111, 112, 281 S.W.3d 744, 745 (2008); Lancasterv. Carter, 372 Ark. 181, 182, 271 S.W.3d 522, 523 (2008); Studie v. Corbin, 369 Ark. 209, 210, 252 S.W.3d 136, 137 (2008). The language in the circuit court’s January 17, 2008 order fails to specifically state that all parties had the opportunity to be heard on the motion at a hearing or by responding in writing. Therefore, it fails to strictly comply with Rule 5(b)(1).
Where an order fails to comply with Rule 5(b), this court may remand the matter to the circuit court for compliance with the rule. See, e.g., Winrock Grass Farm, Inc., 373 Ark. at 517. Upon remand for compliance with Rule 5(b)(1), the circuit court is to determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. Id. at 517. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id.
Because the circuit court’s order failed to strictly comply with Rule 5(b)(1) of the Arkansas Rules of Appellate Procedure-Civil, this matter is remanded to the circuit court for compliance.
Brown, J., not participating. | [
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Paul E. Danielson, Justice.
Appellant Prentis Lee Winkle appeals from his conviction for rape and his sentence to 120 months’ imprisonment. Winkle presents three arguments on appeal: (1) the circuit court erred in admitting into evidence the investigative notes of F.B.I. agent Jon Brody; (2) the circuit court erred in admitting into evidence a prior statement of a witness; and (3) the circuit court erred in admitting into evidence a prior recorded conversation between a witness and the victim in this case. We affirm the judgment and conviction.
On May 19, 2004, Winkle was charged with engaging in sexual intercourse with a person under the age of fourteen on or about July 1 and July 2, 2003, in Miller County, Arkansas. The information alleged that Winkle engaged in sexual intercourse or deviate sexual activity with an individual less than fourteen years of age. Winkle responded by filing a motion to dismiss the charges, in which he contended that the rape prosecution was barred by application of the Double Jeopardy Clause. The Miller County Circuit Court denied Winkle’s motion, and this court affirmed that denial. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
Winkle went to trial on the State’s charges on May 14, 2007, and the record reveals the following. The victim, M.S., met Winkle while she was living near Mt. Pleasant, Texas, with her mother, Brandi Stanley, and Ms. Stanley’s boyfriend. Winkle had been a friend of Ms. Stanley’s boyfriend and moved into a one-room cabin behind their home in May of 2003. Winkle’s girlfriend, Tammy Foreman, also moved into the cabin. M.S. was thirteen at that time. M.S. was allowed to go on a couple of business trips with Winkle to look at equipment for his grave-digging business. Ms. Stanley testified that M.S. was first allowed to go on a business trip with Winkle because one day M.S. had not wanted to stay at her grandmother’s house and Winkle offered to take her with him. Ms. Stanley further testified that she allowed M.S. to go on subsequent trips with Winkle because M.S. wanted to go, she thought it made M.S. feel important, and she and her boyfriend trusted Winkle.
The first trip M.S. took with Winkle was to Texarkana. They stayed overnight at his home near Texarkana in Ashdown, Arkansas. M.S. testified that during that trip, Winkle gave her Smirnoff alcohol and some sort of pill. She stated after awhile she could not move and Winkle started touching her, removing her pants, her underwear, and part of her shirt. When she woke up, she was naked. M.S. testified that Winkle threatened her not to tell anyone and “treated [her] like [she] should be more mature.” Winkle bought her clothing, gave her things, and let her answer his phone like she was an assistant to him.
M.S. made a second trip with Winkle to Dallas, Texas. M.S. could not recall exactly what happened on that trip other than they had eaten out at a steak restaurant, gone back to the hotel, and had sex. She only had flashes of having sex with Winkle, but woke up naked. M.S. also recalled another trip to Winkle’s home in Ashdown, Arkansas, in which she had alcohol and drugs and engaged in sexual intercourse with Winkle.
In July of 2003, M.S. ran away from home because she got into an argument with her mother’s boyfriend and she wanted to go visit a friend named Megan, whom she had met over the internet. She called Winkle to come pick her up. M.S. testified that Winkle took her to Texarkana, bought her some items that she needed at Wal-Mart, and took her to a truck stop. M.S. stated that they took a cab from the truck stop to a motel, where he then asked her to take a shower with him. She testified that she did not drink alcohol but had taken the same type of pill she had previously taken and felt like she “always did” and could not move. M.S. remembered the lights going off and Winkle having sexual contact with her, both oral and intercourse. The next morning, M.S. testified she was picked up by a cab and Winkle gave her $300. Eventually, the police tracked her down after she had called her mom from Birmingham, Alabama. M.S. later told Ms. Stanley things that had happened between her and Winkle.
Ms. Stanley contacted F.B.I. Special Agent Jon Brody, and Brody began an investigation by speaking with M.S. After two interviews with M.S., Agent Brody felt he had enough information to determine that a sexual relationship existed between M.S. and Winkle. Agent Brody, along with Agent Malloy, also interviewed Winkle. It was their testimony that Winkle first admitted only to the several trips and the time he spent with M.S., but not the sexual conduct. Cab records and hotel records confirmed certain admissions by Winkle and statements made by M.S. to Agent Brody. Agent Brody testified that eventually Winkle made a confession that he had sexual intercourse with M.S. seven times — four times at his home in Ashdown, Arkansas, twice in Dallas, Texas, and once at the Economy Inn in Miller County.
Winkle was convicted by a jury of his peers in the Miller County Circuit Court. He filed a timely notice of appeal on June 15, 2007. We now turn to the instant appeal.
For his first point on appeal, Winkle argues that the circuit court erred in allowing the State to introduce notes and a summary report written by F.B.I. Special Agent Jon Brody into evidence during redirect examination because the documents were hearsay. The State first argues that Winkle did not preserve this point for appeal and, alternatively, that the admission of the documents was necessary to clarify matters that Winkle initiated on cross-examination. Should this court reach this point on appeal, the State further contends that the circuit court did not abuse its discretion in admitting this evidence into the record. We hold the hearsay argument is not preserved for our review.
During trial, Agent Brody testified as to his interview with Winkle, during which Winkle admitted to raping M.S. Agent Brody took handwritten notes during the course of his interview with Winkle and, after the interview, used his notes and his memory to create a summary report called a “302.” On cross-examination, Agent Brody was questioned about his notes, how his notes compared to his 302 summary report, if his report was “embellished” in comparison to his notes, and the length of the interview in comparison to when Winkle made his confession. In response, the State offered the documents into evidence and asked Agent Brody specific questions about what information those documents contained and what significance they had in relation to the interview. Defense counsel objected to the admission of these documents on the grounds that they were prejudicial and the State should have been able to correct anything initiated in cross-examination by simply asking the proper questions on redirect. Defense counsel did not object to the documents as hearsay, nor did the circuit court rule on hearsay. The circuit court ruled only that the documents were proper for rebuttal purposes and that they were more probative than prejudicial, especially considering that the State had agreed to redact the documents as requested.
This court has specifically held that “in order to preserve a hearsay objection, a defendant must make a timely, specific objection, stating that ground,” as a general objection is not sufficient to preserve a specific point. See Stone v. State, 371 Ark. 78, 82, 263 S.W.3d 553, 555 (2007) (quoting Howard v. State, 348 Ark. 471, 493, 79 S.W.3d 273, 286 (2002)). Because defense counsel never specifically objected on hearsay grounds, Winkle’s hearsay argument is not preserved for review. See id.
Winkle further argues that the circuit court erred by admitting a transcript of the victim’s testimony from Winkle’s federal trial into the record. He argues that because the statement was not a prior inconsistent statement used to impeach the witness, it was improper for the circuit court to admit it into the record. The State avers that the prior testimony was admissible pursuant to Arkansas Rule of Evidence 801(d)(1)(h) as a prior consistent statement offered to rebut a charge of fabrication. We agree with the State.
This court has held that circuit courts are afforded wide discretion in evidentiary rulings. See Moore v. State, 372 Ark. 579, 279 S.W.3d 69 (2008). We will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion, and, likewise, we will not reverse absent a showing of prejudice. See id.
Part of the evidence presented against Winkle was the testimony of M.S. She testified that, at age thirteen, Winkle had sexual intercourse with her on numerous occasions. At some point after her interview with Agent Brody, M.S. had written a note recanting her statements about the sexual encounters with Winkle. However, it was her testimony that the note was false and that she wrote it at the direction of Tammy Foreman, Winkle’s girlfriend. M.S. testified, “I felt sorry for [Tammy], I loved [Tammy], and I wanted to do everything I could, so I felt like if I didn’t say anything, or anything else and I kept to myself, everything would be fine.”
On cross-examination, defense counsel questioned M.S. multiple times trying to imply that in her testimony at the federal trial, she had testified that the note was true. The questions and answers between M.S. and defense counsel became confusing as to the subject of the question, and M.S. stated multiple times that she didn’t understand the question but that the note she wrote was false. It is clear from the record that defense counsel was implying that her prior testimony at Winkle’s federal trial had been inconsistent with the testimony she was providing at this trial.
Defense counsel had used the transcript of M.S.’s testimony from the.federal trial during the cross-examination of M.S. On redirect examination, the State requested that the prior testimony be admitted into evidence to prove that her current testimony was consistent with her prior testimony that the note she wrote was not true. The circuit court admitted the prior testimony over Winkle’s objection.
It is well settled that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. See Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996); Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980). See also Ark. R. Evid. 801 (d)(1)(d) (2007). Here, defense counsel repeatedly attempted to show M.S.’s trial testimony was inconsistent with her earlier statements given during Winkle’s federal trial. We have repeatedly held that, in this situation, fairness dictates that the State be allowed to explore this area of inquiry and have the opportunity to clarify any confusion or misapprehension that may have lingered in the jury’s mind from defense counsel’s examination. See, e.g., Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). See also Frazier, 323 Ark. at 354, 915 S.W.2d at 693; Cooper, 317 Ark. at 489, 879 S.W.2d at 407. Therefore, we cannot say the circuit court abused its discretion in admitting the prior testimony.
For his final point on appeal, Winkle argues that a recorded phone call between his ex-wife, Jamie Kay Winkle, and M.S. was improperly admitted into the record by the circuit court. The State argues that the recording was permissible to impeach Jamie Kay’s inconsistent testimony. Again, we review this issue under an abuse-of-discretion standard. See Moore v. State, supra.
Jamie Kay Winkle testified for the defense and, among other things, stated that M.S. had apologized to her during telephone conversations for making false allegations against Winkle. On cross-examination, Jamie Kay testified that she did not remember making a phone call to M.S. in which she told her that she supported Winkle’s prosecution and gave M.S. specific examples of how Winkle was a dangerous person. Therefore, outside the presence of the jury, a tape recording of that conversation was played for her to refresh her memory. After listening to the tape, Jamie Kay admitted to having the conversation, but claimed she had been lying during that phone conversation. The State finished questioning Jamie Kay and did not move to admit the recording into evidence. However, on redirect examination, Jamie Kay then testified that she never believed the charges were true because she knows Winkle is “not that way.” The State then moved to introduce the recorded phone conversation into evidence, and the circuit court granted the request over Winkle’s objection.
Rule 613 of the Arkansas Rules of Evidence permits extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment if the witness is afforded the opportunity to explain or deny the statement, does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. See Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). See also Ark. R. Evid. 613(b) (2007). However, if the witness admits making the prior inconsistent statement, then extrinsic evidence of that statement is not admissible. See id. See also Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).
In Threadgill, supra, we held the witness did not unequivocally admit that her prior statement was a lie. 347 Ark. at 991, 69 S.W.3d at 426-27. Instead, that witness testified that she did not remember making the statement, or, that if she made the statement it was a lie. See id. We held that her testimony left doubt as to whether she admitted that the earlier statement was a lie, as required by the case law interpreting Rule 613(b), and, thus, the circuit court did not abuse its discretion in admitting her previous statement for purposes of impeachment. See id.
Here, Jamie Kay admitted to making the prior inconsistent statements after listening to the recorded conversation and repeatedly said she had been lying during that phone conversation with M.S. However, Jamie Kay then stated the following on redirect, “I didn’t ever believe the charges was [sic] true, because he’s not that way, and I know that.” The recorded statements directly contradict that assertion, and the circuit court allowed the statements into evidence so the jury could decide for themselves if Jamie Kay thought Winkle was “that way” or not.
While Winkle also alleges that the recorded conversation contained prejudicial statements and was admitted only to introduce prejudicial evidence to the jury, the circuit court specifically gave the jury a limited instruction after the redacted tape was played:
Ladies and gendeman, evidence that a witness has previously made a statement that’s inconsistent with her testimony at the trial may be considered by you for the purpose ofjudging the credibility of that witness, but may not be considered by you as evidence of the truth of the matter set forth in that statement.
Further, I am instructing you to disregard the statements in the tape as to the other alleged crimes, wrongs, or acts of the defendant.
Given the specific facts of this case, we cannot say the circuit court abused its discretion by admitting the recorded phone conversation.
Affirmed.
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Per Curiam.
Appellant Edward William Doss, Jr., by and through his attorney, Dana A. Reece, has filed a motion for belated appeal.
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 said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney fifing 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). This court no longer requires an affidavit admitting fault before we will consider the motion. However, it is plain from Appellant’s motion that there was error on Ms. Reece’s part, and she accepts responsibility for her mistake. The deadline to appeal the writ of habeas corpus in this case was October 4, 2007. On October 1, 2007, Ms. Reece mistakenly faxed a notice of appeal with the wrong case number to the Hot Spring County Circuit Clerk. Ms. Reece did not realize her error until December 18, 2007, when she called the Hot Spring County Circuit Clerk’s office to check on the record.
Mr. Doss has advised Ms. Reece that he still wants to pursue his appeal. Accordingly, we grant Appellant’s motion to file a belated appeal. A copy of this opinion will be forwarded to the Professional Conduct Committee.
Motion granted. | [
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Annabelle Clinton Imber, Justice.
The State of Arkansas appeals, or in the alternative petitions this court for a writ of certiorari, from the Pulaski County Circuit Court’s order declaring Act 1782 of 2001 unconstitutional. Because we conclude that the circuit court did not have jurisdiction to rule upon Appellee Brandon Clark Rowe’s motion requesting declaratory relief, we grant the petition for a writ of certiorari.
In April 2006, Rowe pleaded guilty to several felony charges, including two counts of manufacturing methamphetamine and two counts of possession of drug paraphernalia with intent to manufacture methamphetamine. Sentencing was delayed, and on May 24, 2006, Rowe filed a motion for declaratory judgment asserting that Act 1782 of 2001 was unconstitutional. The main thrust of Rowe’s motion was that Act 1782 was an unconstitutional repeal of the sunset clause of a statutory provision that requires persons convicted of certain offenses to serve seventy percent (70%) of their sentence prior to being eligible for parole. See Ark. Code Ann. § 16-93-611 (Repl. 2006).
At the August 24, 2006 sentencing hearing, the circuit court made an oral ruling on Rowe’s motion stating, “I’m going to declare the 70% percent provision as applied to be unconstitutional and that will be reflected in the judgment.” The first judgment and commitment order was entered September 5, 2006, and an amended judgment and commitment order was entered September 15, 2006. However, neither judgment contained a reference to the circuit court’s ruling on Rowe’s motion.
Almost a year later, on July 20, 2007, the circuit court entered a written order granting Rowe’s motion and declaring Act 1782 of 2001 unconstitutional. In the order, the circuit court provided a lengthy explanation as to how the act violated article 5, § 23 of the Arkansas Constitution. In particular, the act was unconstitutional because the legislature could not determine the effect of the act from reviewing the text of the act alone. Accordingly, the court ruled that the seventy percent (70%) rule would not apply to Rowe, and, instead, the parole statutes would function as though the sunset clause had not been repealed by Act 1782. Because the parties did not receive notice of the entry of the July 20 order, the parties and the court agreed to vacate the order, and an identical order was entered on October 1, 2007.
As a threshold issue, we must determine the propriety of this appeal under Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. A significant difference exists between appeals brought by criminal defendants and those brought on behalf of the State. State v. Fuson, 355 Ark. 652, 144 S.W.3d 250 (2004). The former is a matter of right, whereas the latter is neither a matter of right, nor derived from the Constitution, but rather is only granted pursuant to the confines of Rule 3. Id. Appeals by the State are limited to instances where the court’s holding would be important to the correct and uniform administration of the criminal law. Id. We only take state appeals which are narrow in scope and involve the interpretation of law. Id. Where an appeal does not present an issue of interpretation of the criminal rules or statutes with widespread ramifications, it does not involve the correct and uniform administration of the law. Id. State appeals are not allowed merely to demonstrate the fact that the circuit court erred. Id. Stated another way, this court will only accept appeals by the State when its holding will establish a precedent that will be important to the correct and uniform administration of justice. Id. To determine whether this appeal is proper, we must decide whether the issue subject to appeal is one involving interpretation of a rule or statute, as opposed to one involving the application of a rule or statute. Id. An appeal that raises the issue of application, rather than interpretation, of a statutory provision does not involve the correct and uniform administration of the criminal law. Id.
Even if a direct appeal is not proper under Rule 3, this court has the discretion to treat an appeal from an order, judgment, or decree that lacks judicial support as if it were brought up on petition for writ of certiorari. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001). A writ of certiorari only lies where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Id. These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id. The court will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a circuit court’s discretionary authority. Id.
Although the State’s brief may have presented an issue upon which we could hear an appeal under Rule 3, the State’s notice of appeal was not timely. It appears that by vacating the July 20 order and then reinstating an identical order on October 1, 2007, the circuit court was attempting to extend the time to file a notice of appeal. Our rules of appellate procedure in criminal cases do not provide for such an extension. Although a criminal defendant may file a petition for belated appeal with this court, that remedy is not available to the State. See Ark. R. App. P. — Crim. 2(e) (2008). Accordingly, the time for the State to file a notice of appeal was thirty days after the July 20 order was filed. Thus, the State’s notice of appeal, which was filed October 2, 2007, was untimely. But, because we agree with the State’s contention that the circuit court did not have jurisdiction to hear Rowe’s motion, we will treat the State’s appeal as a petition for certiorari.
The State argues that Rowe’s motion was a posttrial motion pursuant to Arkansas Rule of Criminal Procedure 33.3, and because the circuit court did not enter a written ruling within thirty (30) days of the entry of the judgment, the motion was deemed denied. We do not agree with the State’s argument. While Rowe made the motion after he pled guilty, the motion was made before sentencing, and it did not challenge either Rowe’s conviction or sentence. Instead, Rowe’s motion addressed the collateral issue of his parole eligibility once he was sentenced. The motion was not posttrial in nature, and because the circuit court did not enter a written ruling prior to the judgment and commitment order being filed, the motion did not survive following the entry of judgment. See Admin. Order No. 2.
However, even if Rowe’s motion had been a posttrial motion, the motion would have been deemed denied under Rule 33.3 because the circuit court did not enter a written order on the motion within thirty (30) days of the entry of the judgment. Ark. R. Crim. P. 33.3(c) (2008). Accordingly, the circuit court would have lost jurisdiction to rule on the motion on the thirtieth day after the judgment was filed.
Rowe’s motion also did not survive the entry of the judgment and commitment order by way of any other means. We have applied the theory behind Arkansas Rule of Civil Procedure 60(b) to criminal cases because Rule 60(b) embodies the common law rule of nunc pro tunc orders, which is applicable in both civil and criminal cases. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999) (interpreting former version of the rule). Pursuant to Rule 60(b) a circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment or order. Ark. R. Civ. P. 60(b) (2008). A circuit court’s power to correct mistakes or errors is to make “the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79 (1999).
In the instant case, the circuit court’s oral ruling on August 24, 2006, indicated that the ruling would be incorporated into the judgment. However, the ruling as to Act 1782 was not included in either the original or amended judgment and commitment order. The written order, filed July 20, 2007, did far more than reiterate the circuit court’s oral ruling that the act was unconstitutional. Instead, the written order provided a lengthy explanation as to why Act 1782 was unconstitutional and stated that Rowe’s parole eligibility would not be affected by the seventy percent (70%) rule. In sum, the circuit court’s order was an attempt to have the record reflect what should have happened and not what happened but was not recorded.
Additionally, while Arkansas Rule of Civil Procedure 60(a) allows for a circuit court to modify or vacate a judgment, order, or decree, within ninety days of its having been filed with the clerk, we have emphatically stated that Rule 60(a) does not apply to criminal proceedings. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). Nor have we allowed for the application of Arkansas Rule of Civil Procedure 60(c), which allows a court to set aside a judgment more than ninety (90) days after the entry of judgment. See McCarty v. State, 364 Ark. 517, 221 S.W.3d 332 (2006); Ibsen v. Plegge, supra.
Even so, the circuit court still would not have had the authority to rule upon Rowe’s motion under the provisions of Rule 60. Rowe’s motion does not meet any of the requirements listed in Rule 60(c), and the circuit court did not rule on Rowe’s motion within ninety (90) days of the judgment being entered.
For the above stated reasons, we conclude that the circuit court lost jurisdiction to rule on Rowe’s motion when the judgment and commitment order was entered.
Writ granted.
Hannah, C.J., and Danielson, J., dissent.
We note that under the Arkansas Rules of Appellate Procedure-Civil 4, when a court fails to give the parties notice of an entry of an order or judgment, a party may move for an extension of the time to file a notice of appeal, and the circuit court may grant a fourteen-day extension. See Ark. R. App. P.-Civil 4(b)(3) (2008). No similar provision exists in the Arkansas Rules of Appellate Procedure-Criminal. Furthermore, as stated infra, we have declined to apply Arkansas Rule of Civil Procedure 60(a) to criminal proceedings.
Rowe argues that the written transcript of the August 24,2006 sentencing hearing should be sufficient to serve as a written order. That argument, however, is meritless because it is in direct contravention with Administrative Order Number 2, which dictates that a ruling is not final until a written order is filed with the clerk of the court. See Ark Sup. Ct. Admin. Order No. 2(b)(2); see also Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). | [
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Per Curiam.
On November 27, 2007, a jury found petitioner Lee Mark Harris guilty of possession of cocaine with intent to deliver and sentenced him to 960 months’ imprisonment in the Arkansas Department of Correction. The judgment was entered on December 14, 2007, and on December 10, 2007, trial counsel representing petitioner, Mr. Don Warren, filed a notice of appeal. The appeal was not perfected and petitioner filed a pro se motion for belated appeal. We treated the motion for belated appeal as a motion for rule on clerk to lodge the record and granted it.
In our per curiam on October 2, 2008, we directed petitioner’s retained counsel to file a petition for writ of certiorari to call up the entire record, as only a partial record had been filed. Harris v. State, CR08-762 (Ark. Oct. 2, 2008) (unpublished per curiam). Mr. Warren has filed the petition as directed and we grant petitioner thirty (30) days to complete the record.
Mr. Warren also moves this court to be relieved as attorney of record. He argues that “the interests of petitioner, Lee Mark Harris, would be best served if he is allowed to proceed in the manner he has requested,” apparently referring to Harris’s pro se request to proceed in forma pauperis.
We note that in his motion for pro se belated appeal (which we treated as a motion for rule on clerk) Mr. Harris states that he asked Mr. Warren to “appeal my case” and that Mr. Warren said yes, but later wanted to “charge me to do my appeal.” We further note that nothing is before this court whereby Mr. Harris asks us to discharge Mr. Warren.
Mr. Warren, as counsel for petitioner, was obligated to lodge a record in the appellate court in order to preserve the appeal. See Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000) (per curiam). Under Arkansas Rule of Appellate Procedure-Criminal 6(a), once an attorney represents a defendant in a criminal matter, the attorney is obligated to continue representing the defendant until relieved by the appropriate court. See Hammon v. State, 347 Ark. 267, 65 S.W.3d 853 (2002). It is well settled that under no circumstances may an attorney who has not been relieved by the court abandon an appeal. Holland v. State, 358 Ark. 366, 190 S.W.3d 904 (2004) (per curiam). For these reasons, Mr. Warren’s motion to be relieved as counsel is denied.
Petition for writ of certiorari to complete the record granted. Motion to be relieved as counsel denied. | [
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Elena Cunningham Wills, Justice.
This case involves the registration of a foreign judgment and the issuance of an Arkansas writ of garnishment to enforce it. Also at issue is the extent of the garnishee’s liability after default. A Florida court granted appellee D.A.N. Joint Venture III L.P. (D.A.N.) a judgment against an employee of Wal-Mart Stores, Inc. (Wal-Mart) on November 6, 2000. On July 31, 2006, D.A.N. filed the foreign judgment with the Benton County Circuit Court, which issued a writ of garnishment upon Wal-Mart. D.A.N. served Wal-Mart with the writ of garnishment, accompanied by allegations and interrogatories, on September 20, 2006. However, Wal-Mart failed to file an answer.
D.A.N. filed a motion on September 6, 2007, almost a year later, requesting that the circuit court order Wal-Mart to appear and answer the allegations and interrogatories served with the writ of garnishment. Following a hearing, the circuit court held that Arkansas law provides for issuance of a writ of garnishment after registration of a foreign judgment, and entered a judgment against Wal-Mart in the amount of $5,947.81, which was the amount Wal-Mart owed at the time of service of the writ, plus the amount of non-exempt wages earned through September 28, 2007. The circuit court denied Wal-Mart’s motion for reconsideration.
On appeal, Wal-Mart brings three points for reversal: (1) the circuit lacked subject-matter jurisdiction to issue the writ of garnishment and, therefore, the subsequent default judgment; (2) the circuit court’s order as to the amount of Wal-Mart’s liability violated Ark. Code Ann. § 16-110-407 (Repl. 2006); and (3) Wal-Mart was denied constitutional due-process rights under the Fourteenth Amendment.
Our review of this appeal requires interpretation of Arkansas statutes; accordingly, the standard of review is de novo, because it is for this court to determine what a statute means. Vimy Ridge Mun. Water Imp. Dist. No. 139 of Little Rock v. Ryles, 373 Ark. 580, 285 S.W.3d 193 (2008). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Nolan v. Little, 359 Ark. 161, 196 S.W.3d 1 (2004). Reviewing issues of statutory interpretation, this court first construes a statute 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, conveying a clear and definite meaning, the court does not resort to the rules of statutory construction. Id. If there is an ambiguity, the court looks to the legislative history of the statute and other factors, such as the language used and the subject matter involved. State v. L.P., 369 Ark. 21, 250 S.W.3d 248 (2007). The court strives to reconcile statutory provisions relating to the same subject to make them sensible, consistent, and harmonious. Id.
As a threshold matter, the court must first address WalMart’s argument that the circuit court did not have jurisdiction to issue a writ of garnishment after registration of a foreign judgment. D.A.N. registered the Florida court’s judgment under the Uniform Enforcement of Foreign Judgments Act (UEFJA), codified at Ark. Code Ann. § 16-66-601 to -608 (Repl. 2005). UEFJA provides a summary procedure that allows a party obtaining a judgment to enforce the judgment in any jurisdiction where the judgment debtor is found. Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007). The Act’s purpose is to allow a party with a favorable judgment to obtain prompt relief. Id. This statute is in keeping with the “full faith and credit clause” of the United States Constitution. See U.S. Const. Art. 4, § 1; Ark. Code Ann. § 16-66-601. Under § 16-66-602, any valid foreign judgment may be filed in “any court of this state having jurisdiction of such an action,” and the foreign judgment “so filed has the same effect ... as a judgment of a court of this state and may be enforced or satisfied in like manner.” When the valid foreign judgment is registered, “it becomes, in effect, an Arkansas judgment and will remain on the judgment books to be enforced by Arkansas in the future.” Ibanez, 368 Ark. at 436, 246 S.W.3d at 886 (citing Nehring v. Taylor, 266 Ark. 253, 583 S.W.2d 56 (1979) (decision under prior law).
Wal-Mart, citing Moory v. Quadras, Inc., 333 Ark. 624, 970 S.W.2d 275 (1998), argues that the Benton County Circuit Court was without jurisdiction to issue a writ of garnishment upon a judgment entered by a Florida court. In Moory, this court, quoting McGehee Bank v. Charles W. Greeson & Sons, Inc., 223 Ark. 18, 263 S.W.2d 901 (1954), noted that, with respect to garnishment, “ ‘the writ can issue only out of the Court which rendered the judgment unless Statutes empower some other authority to issue the garnishment.’ ” Moory, 333 Ark. at 626, 970 S.W.2d at 276. Wal-Mart essentially argues that, under these authorities, a circuit court in one Arkansas county could not issue a writ of garnishment to enforce a judgment granted in another Arkansas county, therefore, the Benton County Circuit Court should not have authority to issue a writ of garnishment to enforce a Florida judgment, because to do so would grant the Florida judgment “more faith and better credit” than an Arkansas judgment.
In both Moory and McGehee, however, this court found that no Arkansas statute provided authority for a court that did not render the underlying judgment to issue a writ of garnishment. Such is not the case in the present appeal. Here, D.A.N. registered the Florida judgment in the Benton County Circuit Court under § 16-66-602, which plainly provides that a “judgment so filed has the same effect and is subject to the same procedures ... as a judgment of a court of this state and may be enforced or satisfied in like manner.” A properly registered foreign judgment may therefore be enforced in the same manner as an Arkansas judgment. Wal-Mart’s argument, if accepted, would deny garnishment as an enforcement mechanism for foreign judgments registered in Arkansas. This yields an absurd result and gives § 16-66-602 no meaning or effect. D.A.N. properly registered a valid foreign judgment in Benton County Circuit Court as provided by § 16-66-602, and that court had jurisdiction to issue a writ of garnishment upon Wal-Mart. Accordingly, we find no merit in WalMart’s jurisdictional argument.
Wal-Mart also argues that it should not have been liable under Arkansas garnishment statutes for anything other than the amount it held in non-exempt wages at the time of service of the writ — $188.87. The circuit court awarded that amount, plus the amount that would have been withheld between the time WalMart defaulted and the time the garnishor returned to court to ask Wal-Mart to appear and answer the writ — $5947.81. In support of its argument, Wal-Mart relies on Ark. Code Ann. § 16-110-407 (Repl. 2006). This statute provides that a garnishee who fails to answer a writ of garnishment within the twenty-day time period may be subject to “judgment... in such amount... as the court finds the garnishee held at the time of the service of the writ . . . together with attorney’s fees and . . . expenses.” Id. Another statute, Ark. Code Ann. § 16-110-401 (a), provides notice to an employer garnishee that it may be liable for “the amount of non-exempt wages owed the debtor-employee on the date [the employer was] served” if it does not file an answer to the writ of garnishment.
D.A.N. relies upon another statute in the applicable sub-chapter, Ark. Code Ann. § 16-110-415, which provides that “[u]pon the garnishment of. . . wages,” the employer shall hold, “to the extent due upon the judgment. . . any nonexempt wages due or which subsequently become due.” This statute provides for a lien on wages due at the time of service, which continues as to subsequent earnings until the total amount due on the judgment is satisfied. See Ark. Code Ann. § 16 — 110-415(b); see also Thompson v. Bank of America, 356 Ark. 576, 157 S.W.3d 174 (2004).
Although Ark. Code Ann. §§ 16-110-401 and 407 appear unambiguous, when these statutes are viewed in conjunction with Ark. Code Ann. § 16-110-415, a question of statutory construction is presented as to whether a garnishee’s liability is limited to the amount of non-exempt wages it held at time of the service of the writ under §§ 16-110-401 and 16-110-407, or whether the defaulting garnishee’s liability extends to subsequent earnings encompassed by the “lien” provisions of § 16-110-415.
As noted above, the primary guidepost in statutory construction is to determine the General Assembly’s legislative intent. Nolan, supra. In this regard, the legislative history of § 16-110-407 is instructive. Prior to 1989, a defaulting garnishee was subject to liability for the entire amount of the Plaintiffs underlying judgment. See, e.g., Metal Processing, Inc. v. Plastic & Reconstructive Assocs., Ltd., 287 Ark. 100, 697 S.W.2d 87 (1985); see also former statute, Ark. Stat. Ann. § 31-512 (Repl. 1962). In 1989, however, the General Assembly passed Act 463, amending § 16-110-407 to limit judgments against defaulting employer garnishees to the amount held by the garnishee at the time of service of the writ. Act 463 of 1989 contained language stating that “[n]otwithstanding Ark. Code Ann. 16-110-407 or any other law to the contrary, if an employer garnishee fails to answer a writ of garnishment within twenty (20) days after the employer is served with the writ, the employer garnishee shall only be liable for the amount of non-exempt wages owed the employee on the date the employer was served with the writ regardless whether the garnishment is for one pay period or is a continuing garnishment.” (emphasis added). The statute was amended again by Act 1027 of 1991 to address the notice required to be given garnishees, and some of the language above from Act 463 of 1989 was removed. The substantive restriction, however, limiting the defaulting garnishee’s liability to the amount of non-exempt wages held at the time of the service of the writ was retained. This restriction is not affected by the lien provided for in § 16-110-415. That statute, in its original form, pre-existed the change in the law brought about by Act 463 of 1989. See Act 1981, No. 794. In addition, § 16-110-415 applies, not to the liability of a defaulting garnishee, but “[u]pon garnishment of. . . wages” generally. We have repeatedly stated that the specific statute controls over the general. See, e.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Applying this principle to the question presented by this appeal, we hold that § 16-110-407 specifically limits a defaulting garnishee’s liability to the amount of non-exempt wages “held at the time of service of the writ of garnishment,” plus attorney’s fees and other expenses “appropriate under the facts and circumstances.”
This result is not inconsistent with our decision in Ibanez, supra, which is clearly distinguishable. Unlike this case, which involves a writ of garnishment issued by an Arkansas court after registration of a foreign judgment, Ibanez involved a Washington state garnishment, which Wal-Mart defaulted on in Washington. The Washington court’s default judgment against Wal-Mart — for the full amount of the plaintiffs underlying judgment — was then registered in Arkansas under UEFSA. Washington law provided a two-step garnishment procedure, which involved an initial judg ment against the defaulting garnishee for the full amount of the underlying judgment, which thereafter could be reduced to the amount the garnishee held at the time of the service of the writ, plus the cumulative amount subject to Washington’s lien statute. Id. at 434, 246 S.W.3d at 885, n.1. The Washington court ordered Wal-Mart to pay the full amount of the judgment, the first step under Washington’s garnishment procedure, but after that first step, Nationwide registered the judgment for the full amount in the Benton County Circuit Court. Id. at 437, 246 S.W.3d at 887.
The Ibanez court noted that both parties there conceded that the proper amount of the the judgment against Wal-Mart was the amount due at the time the writ was served through the period before the employee was terminated. The Arkansas circuit court reduced the Washington judgment to that amount. Although this court in Ibanez did not specifically state whether it was applying Arkansas or Washington law to affirm the circuit court’s reduction of the judgment to the smaller amount, it held that to allow the initial larger amount entered in Washington would “encourage a circumvention of the law in both states,” noting that “[t]his court adheres to the public policy that a judgment debtor may not collect more than the garnishee held at the time the writ was filed.” Id. at 439, 246 S.W.3d at 888. Here, that amount was $188.87. Accordingly, we reverse the circuit court on this point and remand the case for an entry of judgment consistent with this opinion.
Because we hold that the plain language of § 16-110-407 limits the liability of a garnishee upon default to the amount held at the time of service, Wal-Mart’s constitutional argument is moot. Further, we note that the practical result of the limitation in § 16-110-407 is to eliminate any incentive for a garnishee to file an answer or make a timely response to a writ of garnishment; there is no penalty for a garnishee’s default. However, this is a public policy decision, and we have repeatedly stated that public policy is for the General Assembly to decide, not the courts. Medical Liab. Mut. Ins. Co. v. Alan Curtis Enters., Inc., 373 Ark. 525, 285 S.W.3d 233 (2008).
Affirmed in part; reversed in part.
Corbin, J., not participating.
The original purpose of Act 1027 of 1991 was to clarify the law “on judgments against garnishees” by amending § 16-110-407. See House Bill 2009 of 1991 (Tide). After the bill was introduced, this court construed Ark. Code Ann. §§ 16-110-401 to -415 (1987) in Bob Hankins Distributing Co. v. May, 305 Ark. 56, 805 S.W.2d 625 (1991) (“Hankins ID) and held that Arkansas garnishment statutes were unconstitutional because they failed to provide adequate notice to a garnishee that his property was subject to satisfaction of the original judgment. Following Hankins II, House Bill 2009 was amended to specify the mandatory notice provisions of § 16-110-401.
As originally adopted by Act 794 of 1981, this statute allowed either a one pay period garnishment or a three-month continuing garnishment with the employee’s consent. This is the version of the lien statute that was in effect when Act 463 of 1989 limited a defaulting garnishee’s liability “regardless whether the garnishment is for one pay period or is a continuing garnishment.” The lien statute was subsequently amended to remove the one garnishment per pay period language (See Acts 1991, No. 192) and to provide that the hen continues until the total amount of the judgment and costs are satisfied. Acts 1995, No. 276. | [
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Jim Gunter, Justice.
Appellant appeals the dismissal of his complaint for an accounting from his ex-wife, who was the custodian of two bank accounts established in their child’s name, both of which were closed approximately fifteen years ago. Appellant asserts that the trial court erred in finding that (1) the child, who has now reached the age of majority, was a necessary party to the action, and (2) the complaint was barred by laches. We granted appellant’s motion to transfer this case to our court; therefore, we have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b). We find that appellant’s arguments are procedurally barred and therefore affirm.
The parties in this case were divorced on September 14, 1992, and had one child, Arthur, who was four at the time of the divorce. Appellee had custody of Arthur until September 7,2001, when custody was given to appellant in an agreed order. Litigation continued between the parties on various matters, and on July 11, 2003, the court issued an order declining to exercise jurisdiction over appellant’s request for an accounting of two bank accounts previously established in the child’s name with appellee as the caretaker of the accounts. One of the accounts, the “Worthen Bank” account, was opened in 1990 and closed in 1991; the other account, the “Shearson Lehman” account, was opened in 1992 and closed in 1996. The court did note, however, that appellant could pursue his request for an accounting in a separate proceeding.
On March 9, 2006, appellant filed a complaint for an accounting of the funds in the above-mentioned accounts and requested that appellee be ordered to repay the funds from the accounts with interest. In pleadings filed April 14,2006, and July 26,2006, appellee denied any wrongdoing, raised various affirmative defenses including laches, and made a motion to dismiss the complaint.
Arthur’s eighteenth birthday occurred on August 30, 2006. On May 2,2007, appellee filed a motion to dismiss or substitute parties due to the child reaching the age of majority. A hearing on the matter was held on August 3, 2007. After hearing arguments from counsel, the court orally ruled that the claim was barred by laches and the lack of a necessary party before the court. The court found that even if the request for an accounting was granted, the person entitled to receive any funds, Arthur, was not before the court. Prior to the entry of the court’s order, appellant filed a motion to reconsider on November 27, 2007, asserting that the court had erred in applying the doctrine of laches, as appellee had failed to show a detrimental change in position due to defendant’s delay, and that the court had erred in ruling that Arthur was no longer a minor and appellant could not act on his behalf, because under the Uniform Transfers to Minor Act (UTMA), a child is considered a minor until he or she reaches the age of twenty-one. The court entered its final order dismissing the complaint on December 20, 2007. The order stated that the complaint was dismissed because “Arthur has reached the age of eighteen (18) years and is a necessary party because any relief would go from Ms. Brackenbury to Arthur. The Court also finds the complaint is barred by laches as Ms. Bracken-bury cannot be required to produce records from 1991 forward.” Appellant filed a notice of appeal from this order on January 18, 2008.
Appellant first argues that the trial court erred in relying on the general statutory age of majority, eighteen, in deciding that Arthur was a necessary party, instead of the specific statutory provision of the UTMA, which defines any person under the age of twenty-one as a minor. Ark. Code Ann. § 9-26-201(11) (Repl. 2008). Appellant also argues that the court erred in finding that appellant was not the proper party to bring the complaint, as Ark. Code Ann. § 9-26-219 clearly allows the minor’s guardian or an adult member of the minor’s family to petition the court for an accounting, and there is no requirement that the minor be joined as a party. And finally, appellant acknowledges that only one of the disputed accounts, the “Shearson Lehman” account, was expressly created under the UTMA but argues that both it and the “Worthen Bank” account should be dealt with under the UTMA.
The problem with these arguments, however, is that they are not the arguments that were presented below to the trial court. At the hearing, appellee’s counsel argued that Arthur was no longer a minor under Arkansas law and should therefore be substituted as the proper plaintiff and that appellant was not the proper party to bring the action. In his rebuttal, appellant’s counsel argued that “[a]s far as ACA 9-26-219, as that applies to uniform gifts to minors, the way that the Act is drafted the actual gift itself — the account — remains in effect until the child turns 21. Arthur is still 18, which I think would address the statute of limitations.” Later, appellant’s counsel and the court had the following exchange:
Mr. Phillips: Well, of course, I think as to the uniform gift to minors account, those are valid until the juvenile reaches the age of 21. As far as the account that actually was Arthur’s minor account that was —
The Court: But Arthur is now an adult — and I know it’s in effect until he’s 21. But he now is an adult and has a right to assert his rights and privileges as that adult, even for when he was a minor. But it becomes his right when he reaches 18, does it not?
Mr. Phillips: That’s correct. And perhaps we need to join Arthur in the lawsuit...[.]
This is but one instance in which the court and the parties were clearly in agreement that Arthur was no longer a minor, and yet on appeal, appellant is arguing that under the UTMA, Arthur is still a minor. And, while appellee’s own counsel pointed out below that under Ark. Code Ann. § 9-26-219, any adult member of the minor’s family can bring the accounting action, appellee’s counsel also suggested that the right to do so extinguished when Arthur turned eighteen, and appellant never rebutted this contention by making the argument that he is now making on appeal. And while it is true that appellant raised these arguments in his motion to reconsider, the arguments raised in that motion are not properly before us. Under our case law, we treat a motion to reconsider in a bench trial like a motion for a new trial. See, e.g., Ark. Office of Child Support Enforcement v. Parker, 368 Ark. 393, 246 S.W.3d 851 (2007) (finding that a motion to reconsider was deemed denied pursuant to Rule 59 of the Arkansas Rules of Civil Procedure). Under Rule 59, such a motion made before entry of the final judgment becomes effective and is treated as filed on the day after the judgment is entered. So, in this case, the motion was treated as if it was filed on December 21, 2007, and was deemed denied on January 21, 2008.
Our case law makes clear that when a motion for new trial has been deemed denied in accordance with Ark. R. App. P. — Civ. 4(b)(1), the only appealable matter is the original judgment order. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Under Ark. R. App. P.-Civ. 4(b)(2), anotice of appeal filed before the disposition of a posttrial motion is effective to appeal the underlying judgment or order, but to also seek an appeal from the grant or denial of the motion, an amended notice of appeal must be filed within thirty days, and we have no such amended notice of appeal in this case. Also, this court has repeatedly held that an objection first made in a motion for new trial is not timely. Lee, supra.
Based on the foregoing, we hold that appellant’s arguments were not presented to the trial court in a timely manner, nor are the arguments properly before this court on appeal. See Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003) (holding that, for the purposes of determining the issues for which appellate review is preserved, a party cannot change on appeal the grounds for an objection or motion made at trial, and is bound by the scope and nature of the arguments made at trial). We therefore are precluded from addressing the merits of appellant’s arguments on this point and affirm the trial court.
Because we affirm the trial court on this point, we need not address appellant’s second argument concerning laches. See Weiss v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007). In addition, we note that appellant’s second argument was also raised for the first time in his motion to reconsider, and thus we would be precluded from reaching the merits of his argument. Yant, supra.
Affirmed.
Brown, J., not participating.
As to appellant’s argument concerning whether both accounts should be handled under the UTMA, while this issue was discussed by the parties below, we have no ruling on the issue by the trial court, therefore we will not address it. See Bell v. Beshears, 351 Ark. 260, 92 S.W.3d 32 (2002) (holding that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal). We also note that appellant has failed to develop any argument on appeal that, because the “Worthen Bank” account was not expressly created under the UTMA, common law principles would be applied to its administration. | [
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Per Curiam.
Appellee Dr. Trent P. Pierce has filed a motion to dismiss this appeal from the Crittenden County Circuit Court on the grounds that there has not been a final judgment entered in the case. We grant the motion and dismiss the appeal because not all of the claims against all the parties have been resolved and there has been no certification pursuant to Arkansas Rule of Civil Procedure 54(b) (2008) that there is no need for delay in deciding the case with respect to the parties now before us.
Appellants filed suit against the appellees on July 7, 2006. In an order dated September 28, 2008, the trial court granted motions to dismiss as to appellees Frank G. Witherspoon, Jr. and Memphis Dermatology Clinic. The trial court also granted summary judgment to appellees Trent P. Pierce (as to the claim asserted by the Estate of Norma Louise Ramsey only) and Bertram D. Kaplan on October 8, 2008, and October 15, 2008, respectively. Appellants filed a notice of appeal of the orders granting the motions to dismiss as well as the order granting summary judgment to Trent P. Pierce, on September 30, 2008, and filed an amended notice of appeal on November 5, 2008, to include the orders granting summary judgment.
In the notice of appeal, appellants claim to be appealing pursuant to Rule 2(a) (11) of the Arkansas Rules of Appellate Procedure-Civil; however, Rule 2(a) (11) states that an appeal may be taken from:
An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure[.]
In this case, the individual claims filed by appellants were not dismissed in Pierce’s grant of summary judgment, and there are still several claims against the remaining defendants that remain pending. And there is no evidence in the record that a Rule 54(b) certificate was requested of or issued by the trial court. The failure to comply with Rule 54(b) presents a jurisdictional issue in this court, and absent compliance with the Rule, we dismiss the appeal for lack of a final order. Ashmore v. Paccar, Inc., 315 Ark. 490, 868 S.W.2d 80 (1994).
Motion granted; appeal dismissed. | [
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Paul E. Danielson, Justice.
Appellants Sharon McGhee, et al. (hereinafter collectively referred to as “McGhee”) appeal from the circuit court’s order denying their motion for declaratory judgment and finding that the Arkansas Check-Cashers Act, Arkansas Code Annotated §§ 23-52-101-23-52-117 (Repl. 2000 & Supp. 2007), was constitutional. McGhee’s sole point on appeal is that the circuit court erred in denying her motion and in finding the Act constitutional. Because we hold that the Check-Cashers Act is unconstitutional in its entirety, we reverse and remand the matter for entry of an order consistent with this court’s opinion.
Procedurally, this particular case, initially filed in 2003, comes to the court for the third time on appeal, following two remands. See McGhee v. Arkansas State Bd. of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006) (McGhee II); McGhee v. Arkansas State Bd. of Collection Agencies, 360 Ark. 363, 201 S.W.3d 375 (2005) (McGhee I). Because the underlying facts of this case have been set out in this court’s two previous opinions, there is no need to recite them in full here. Suffice it to say, the matter was originally brought against appellees Arkansas State Board of Collection Agencies and its board members in a complaint alleging an illegal exaction and alleging that all transactions under the Arkansas Check-Cashers Act involved interest rates that violated the usury provision of the Arkansas Constitution. See Ark. Const, art. 19, § 13. In addition, McGhee sought a declaratory judgment that the Check-Cashers Act was unconstitutional. See McGhee I, supra.
Following our decision in McGhee I, in which we held that the circuit court erred in dismissing the case, the circuit court permitted Arkansas Financial Services Association (AFSA) to intervene in the matter. See McGhee II, supra. Upon the filing of cross-motions for summary judgment and a hearing on the motions, the circuit court entered its order finding that McGhee had no valid illegal-exaction claim, thereby requiring the dismissal of the claim with prejudice. In addition, the circuit court found that it lacked jurisdiction to hear McGhee’s declaratory-judgment claim due to the fact that she had failed to exhaust her administrative remedies. On appeal, we affirmed the circuit court’s grant of summary judgment on McGhee’s illegal-exaction claim, but reversed and remanded with respect to her claim for declaratory judgment, holding that McGhee was not required to first seek a declaration regarding the constitutionality of the Check-Cashers Act before the Board. See McGhee II, supra.
Following our decision in McGhee II, the circuit court held a hearing on November 20, 2007, during which McGhee again asked the circuit court to rule on the Act’s constitutionality. The circuit court honored McGhee’s request and asked that an order be prepared declaring that the Act was constitutional. Accordingly, an order was entered in which the circuit court denied McGhee’s request for declaratory judgment and found that the Check-Cashers Act was constitutional. McGhee now appeals from that order.
McGhee asserts that the Check-Cashers Act was designed to accomplish a single purpose — to create an exception to the usury limit for short-term payday loans. She maintains that the legislature violated the Arkansas Constitution when it enacted the check- casher statutory scheme, which she claims was obviously designed to exempt certain transactions from usury analysis. Moreover, McGhee claims, the Act permits check-cashers to engage in transactions that are truly loans and that involve fees that constitute interest for usury purposes. McGhee avers that the Act at issue does nothing more than allow persons to register with a state agency so that they can assess charges that are no more than illegal interest. She claims that because the Check-Cashers Act runs contrary to Arkansas’s anti-usury policy and violates article 19, section 13 of the Arkansas Constitution, the circuit court erred in finding the Act constitutional.
The Board counters, initially, that because no actual, justi-ciable controversy was presented to the circuit court, any declaratory judgment on the constitutionality of the Check-Cashers Act was improper. With respect to the merits of the instant appeal, the Board asserts that both the legislature and this court have carefully considered the current statutory regulations of the Act at issue, and neither found the regulations were in conflict with the constitutional doctrine of separation of powers, nor incompatible with the Arkansas Constitution. The Board additionally submits that after removing an unconstitutional provision of the statute, the General Assembly attempted to continue regulating what was once an unregulated industry for the public’s benefit. It avers that McGhee cannot reasonably claim that all transactions by entities licensed under the Act are usurious. The Board urges that because the Act does not in any way attempt to limit or restrict these businesses’ liability for a violation of Arkansas’s usury laws, it is not clearly or unmistakably inconsistent with or in conflict with the Arkansas Constitution. The Board, finally, maintains that no provision of the Act, as currently written, violates the Arkansas Constitution, and, further, that McGhee has failed to meet her burden of proving the Act unconstitutional.
AFSA also responds, maintaining that McGhee failed to meet her burden of proving that the Act is unconstitutional. It further contends that McGhee has not presented an adequate record to this court in support of her request for relief and that there is no evidence that there was a justiciable controversy before the circuit court. In addition, AFSA urges that the General Assembly’s use of definitions within the Act did not render the Act unconstitutional. McGhee replies that this court’s prior decisions in this case demonstrate that there is a justiciable controversy and that she was entitled to a declaration on the constitutionality of the Check-Cashers Act.
I. Justiciable Controversy
We must first address the contention of the Board and AFSA that no justiciable controversy exists in the instant case, and, thus, that McGhee’s request for a declaratory judgment on the constitutionality of the Act was improper. Their argument is without merit.
As McGhee points out, we at least suggested in a prior opinion that McGhee’s actions with respect to her request for a declaratory judgment were proper. In McGhee II, we specifically rejected the argument of the Board and AFSA that McGhee was required to first seek a declaration regarding the constitutionality of the Act before the Board itself, commenting:
Here, the heart of Appellants’ complaint is that they are being injured by the regulations set forth in the Check-Cashers Act due to the fact that the Board continues to license and regulate payday lenders under this Act, thereby allowing them to charge usurious interest rates in violation of article 19, section 13. Thus, Appellants properly sought a declaration in circuit court that the Check-Cashers Act was unconstitutional. Accordingly, we reverse and remand this matter to the circuit court.
368 Ark. at 69, 243 S.W.3d at 285.
But in addition, it is clear to this court that declaratory relief lies in the instant case. Arkansas’s declaratory-judgment statute provides that:
Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Ark. Code Ann. § 16-111-104 (Repl. 2006). While this section recognizes a party’s right to a declaratory judgment, a justiciable controversy is required. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). Declaratory relief will lie where: (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; and (4) the issues involved are ripe for decision. See Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996). On appeal, the question of whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the circuit court. See Jegley, supra.
Here, a justiciable controversy is indeed present between McGhee and the Board as to the implementation, application, and effect of the Check-Cashers Act. McGhee, as one who has engaged in transactions authorized by an Act that she believes is unconstitutional, and the Board, which is charged with licensing and regulating the businesses engaged in these transactions, are indeed parties with adverse interests. In addition, McGhee certainly has a legal interest in the Board’s exercise of its authority under the Act, and the matter is clearly ripe for decision, where the declaratory-relief claim is the sole remaining claim in the action, as previously stated by this court in McGhee II. Accordingly, declaratory relief lies. Moreover, we have held that a declaratory judgment is especially appropriate in disputes between private citizens and public officials about the meaning of the constitution or of statutes. See McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971). It is, therefore, clear to this court that declaratory relief was proper in the instant case.
II. Constitutionality of the Check-Cashers Act
In reviewing the constitutionality of an act, we recognize that every act carries a strong presumption of constitutionality. See City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001). The burden of proof is on the party challenging the legislation to prove its unconstitutionality, and all doubts will be resolved in favor of the statute’s constitutionality, if it is possible to do so. See id. An act will be struck down only when there is a clear incompatibility between the act and the constitution. See id.
We previously held that section 23-52-104(b) (Repl. 2000) of the Check-Cashers Act was “an invalid attempt to evade the usury provisions of the Arkansas Constitution and, further, that such an attempt violate[d] the constitutional mandate requiring separation of powers set forth in Article 4 of the Arkansas Constitution.” Luebbers v. Money Store, Inc., 344 Ark. 232, 234, 40 S.W.3d 745, 746 (2001). However, McGhee’s claim in this case is that the Check-Cashers Act, in its entirety, violates the usury provisions of the Arkansas Constitution. The usury provisions in our constitution provide, in pertinent part:
(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent (17%) per annum shall be void as to principal and interest and the General Assembly shall prohibit the same by law.
Ark. Const, art. 19, § 13(a, b).
We have held that the purpose of Arkansas’s strong anti-usury policy, as reflected by the prohibition of usury in our constitution, is to protect borrowers from excessive interest rates. See State ex rel. Bryant v. R & A Inv. Co., Inc., 336 Ark. 289, 985 S.W.2d 299 (1999). Moreover, we have observed that the plain language of subsection (b) of article 19, section 13 “mandates that the General Assembly prohibit usurious contracts.” Id. at 294, 985 S.W.2d at 301. The question before us, then, is whether the Check-Cashers Act permits usurious contracts.
Only if the transaction at issue constitutes a loan and if the fees charged constitute interest will the constitutional prohibition against usurious interest rates apply. See Luebbers, supra. Accordingly, we must determine whether the transactions authorized by the Check-Cashers Act constitute loans and whether the fees charged constitute interest. •
a. Whether the transactions constitute loans
Generally speaking, a deferred-presentment transaction, or “payday loan,” has been described as a transaction in which the consumer writes a check, the amount of which includes the amount of the cash to be advanced to the customer, plus a service fee. See Dee Pridgen & Richard M. Alderman, Consumer Credit and the Law § 5:6 (2008). The understanding is that the business advancing the funds “will not attempt to cash the check until the due date.” Id. On the due date, the customer “can simply allow the check to be cashed, or can renew or ‘rollover’ the transaction by payment” of another service fee. Id. In Arkansas, “deferred presentment option” has been defined by our General Assembly as:
a transaction pursuant to a written agreement involving the following combination of activities in exchange for a fee:
(A) Accepting a customer’s personal check dated on the date it was written;
(B) Paying that customer an amount of money equal to the face amount of that check less any fees charged pursuant to this chapter; and
(C)Granting the customer the option to repurchase the customer’s personal check for an agreed period of time prior to presentment of such check for payment or deposit. The term “deferred presentment” includes related terms such as “delayed deposit”,“deferred deposit”, or substantially similar terms evidencing the same type of transaction^]
Ark. Code Ann. § 23-52-102(5) (Supp. 2007).
Initially, we must determine whether the transaction permitted by the Act constitutes a loan, which would then call into question whether any fee collected by a check-casher is interest. “Loan” is defined as “[a] thing lent for the borrower’s temporary use; esp., a sum of money lent at interest.” Black’s Law Dictionary 954 (8th ed. 2004). “To constitute a loan, there must be a contract under which, in substance, one party transfers to the other money that the other party agrees to repay absolutely, together with additional amounts as agreed for its usé, regardless of its form.” 47 C.J.S. Interest & Usury § 192 (2008). Likewise, this court has observed that “[w]hen a loan is made, the money is borrowed for a fixed time, and the borrower promises to repay such amount at a fixed future date.” Warren v. Nix, 97 Ark. 374, 380-81, 135 S.W. 896, 898 (1911).
It is clear from the statutory definition set forth above that an Arkansas check-casher pays, pursuant to a written agreement, an agreed-upon amount to its customer, less any fee charged pursuant to the Act, upon presentment of the customer’s check payable to the check-casher. In addition, that customer can “repurchase” his or her check within the agreed period of time. In other words, when the customer “repurchases” his or her check, he or she must pay the check-casher the amount of the check. We hold that such a transaction is a loan, as the check-casher is clearly loaning money to its customer for a fee with the expectation of repayment. See, e.g., Betts v. McKenzie Check Advance of Florida, LLC, 879 So. 2d 667 (Fla. Dist. Ct. App. 2004) (holding that there could be no question that what takes place in a deferred-presentment transaction is essentially an advance of money or a short-term loan).
b. Whether the fees charged constitute interest
Next, we must determine whether the fee paid to the check-casher by the customer constitutes interest. We have previously defined “interest” as “[t]he compensation which is paid by the borrower of money to the lender for its use, and, generally, by a debtor to his creditor in recompense for his detention of the debt.” Winston v. Personal Fin. Co. of Pine Bluff, Inc., 220 Ark. 580, 585, 249 S.W.2d 315, 318 (1952) (quoting Bouvier’s Law Dictionary). In Winston, we held that fees charged under the Arkansas Installment Loan Law, which were part of the lender’s overhead expense in doing business, were “in reality, nothing more or less than interest charges [.]” Id., 249 S.W.2d at 318. Our review of the instant Act reveals that it specifically authorizes a check-casher’s charge of “a reasonable fee to defray operational costs incurredf.]” Ark. Code Ann. § 23-52-104(a) (Supp. 2007). Because that fee is in reality an amount owed to the lender in return for the use of borrowed money, we must conclude that the fees authorized clearly constitute interest.
Our conclusion is further evidenced by the Act’s requirement that any agreement for a deferred-presentment option shall contain a written explanation that “shall contain a statement of the total amount of any fees charged for the deferred presentment option expressed both in United States currency and as an annual percentage rate.” Ark. Code Ann. § 23-52-106(c) (Repl. 2000) (emphasis added). “Annual percentage rate,” commonly referred to as an APR, is “[t]he actual cost of borrowing money, expressed in the form of an annualized interest rate.” Black’s Law Dictionary 831 (8th ed. 2004) (emphasis added). Despite the Act’s attempt to label these charges as fees, that does not exempt them from our scrutiny. See, e.g., Luebbers, supra. As we have oft stated, “The law shells the covering and extracts the kernel. Names amount to nothing when they fail to designate the facts.” Luebbers, 344 Ark. at 239, 40 S.W.3d at 750. In other words, merely because the Act so labels does not make it so. For the foregoing reasons, we hold that the fees authorized by the Act unmistakably constitute interest.
c. Whether the Act permits usurious charges
With these conclusions in mind, we turn to McGhee’s claim that the Act authorizes usurious transactions. We hold that there is no question that it does. According to our calculations, if a customer wrote a check-casher a check for $100, incurring an interest charge often percent (10%), plus a $10 fee (both of which are authorized by the Act) for a thirty-one (31) day loan, it would result in an APR of 294%. In the instant case, sample contracts contained in the record reflected APR rates ranging from 168.20% to 558.71%. Such rates of interest are clearly and unmistakably usurious and in violation of article 19, section 13.
Because the Act so clearly authorizes usurious interest rates, it cannot stand. Here, AFSA argues that the Act regulates two different types of businesses, check-cashing and deferred-presentment options, and that should this court deem any portion of the Act unconstitutional, we should remand the matter to the circuit court to have those portions severed. We will not do so. To determine whether the invalidity of part of an act is fatal to the entire legislation, we look to: (1) whether a single purpose is meant' to be accomplished by the act, and (2) whether the sections of the act are interrelated and dependent upon each other. See City of North Little Rock v. Pulaski County, 332 Ark. 578, 968 S.W.2d 582 (1998). The mere fact that an act contains a severability clause is to be considered, but is not alone determinative. See id.
While Act 1216 of 1999 does contain a severability clause in section 19, the Act further provides that the purpose of the Act was “to provide an Act to license and regulate check-cashing and deferred presentment option businesses.” In addition, the Emergency Clause of the Act proclaims that “the effectiveness of this act on its passage or approval is essential to the operation of the deferred presentment check-cashing and other check-cashing business in Arkansasf.]” Act 1216 of 1999, § 21. Despite the Act’s severability clause, it is evident to this court from both of these statements that the General Assembly’s intent was to pass the Act as a whole or not at all. See, e.g., City of North Little Rock, supra. Furthermore, our review of the Act reveals that its provisions concerning the business of check-cashing and the business of deferred-presentment options are so intertwined that severance would be inappropriate. See U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994) (observing that when portions of an act are mutually connected and interwoven, severability is not appropriate). For these reasons, we declare the entirety of the Check-Cashers Act unconstitutional.
On a final note, it was argued to this court both in the briefs and at oral argument by those in favor of the Act that the check-cashers provide a service to Arkansas citizens that would not otherwise be available. While such a statement might have some semblance of truth, we simply “must refuse to allow arguments, however plausible, to lead us away from the plain wording and spirit of our Constitution.” Winston, 220 Ark. at 587, 249 S.W.2d at 319. Our duty in these types of cases was eloquently stated in a previous decision involving a usurious loan pursuant to article 19, section 13:
This section is clear and unambiguous. With the wisdom and policy of it the courts have nothing to do. It is their duty to carry into effect according to its true intent, to be gathered from its own words, without regard to the hardships incident to the faithful execution of such laws.
German Bank v. DeShon, 41 Ark. 331, 337 (1883) (decision under prior version of article 19, section 13, which provided that all contracts for a greater rate of interest than ten per centum per annum shall be void).
In sum, because the Check-Cashers Act clearly authorizes loans charging usurious rates of interest in contravention of the limits set forth in article 19, section 13, we hold that the Act, in its entirety, clearly and unmistakably conflicts with our constitution and is unconstitutional. We, therefore, reverse the order of the circuit court and remand for entry of an order consistent with this .opinion.
Wills, J., not participating.
The circuit court also granted Arkansas Federal Credit Union’s motion to intervene. See McGhee II, supra.
Consequently, the General Assembly repealed that subsection. See Act 1962 of 2005, § 106.
The statute further provides:
(b) Unless otherwise authorized by this chapter, the fees authorized by this section shall not exceed the following:
(1) For the service of selling currency or check in exchange for checks, without regard to whether a deferred presentment option is involved:
(A) A fee not to exceed five percent (5%) of the face amount of the check if the check is the payment of any kind of state public assistance or federal social security benefit payable to the bearer of the check or the check is otherwise a check issued by a federal or state governmental entity;
(B) A fee not in excess of ten percent (10%) of the face amount of any personal check or money order; or
(C) A fee not in excess of six percent (6%) of the face amount of the check in the case of all other checks. Such a fee may be collected separately or by paying the customer an amount of money equal to the face amount of the check less the appropriate fee under this chapter;
(2) For a deferred presentment option which involves a personal check, an additional fee not to exceed ten dollars ($10.00) may be charged by a check-casher; and
(3) In addition to the foregoing fees, a check-casher may charge a fee of no more than five dollars ($5.00) to set up an initial customer account and issue an optional identification card for providing check-cashing services. A replacement optional identification card may be issued at a cost not to exceed five dollars ($5.00).
Ark. Code Ann. § 23-52-104(b) (Supp. 2007).
According to information previously published by the Board, which is included in the record, an APR is calculated as follows:
1. customer check amount - payment to customer = finance charge
2. payment to customer = amount financed
3. APR = finance charge / [(amount financed x days outstanding) / 365]
“A check-casher shall not defer presentment of any check for less than six (6) calendar days nor more than thirty-one (31) calendar days after the date the check is sold to the check-casher.” Ark. Code Ann. § 23-52-106(d). For a six-day loan involving the same amounts, the APR would be as much as 1521%.
Despite the Act’s limitation on the loan amount to $400, a thirty-one day loan of that amount would still result in an APR of 168%, and a six-day loan would result in an APR of 869%. See Ark. Code Ann. § 23-52-106(m).
Indeed, some commentators maintain that such transactions can result in an annual percentage rate of unimaginable proportion. See Elizabeth Renuart & Diane E.Thompson, The Truth, the Whole Truth, and Nothing but the Truth: Fulfilling the Promise of Truth in Lending, 25 Yale J. on Reg. 181 (2008) (suggesting 780%); Jean Ann Fox, Fringe Bankers: Economic Predators or a New Financial Services Model?, 30 W! New Eng. L. Rev. 135 (2007) (suggesting an annual interest rate of 390% to 780% for a $300 loan costing between $45 and $90 for a two-week term); Joseph R. Falasco, Comment, Who's Getting Used in Arkansas: An Analysis of Usury, Check Cashing, and the Arkansas Check-Cashers Act, 55 Ark. L. Rev. 149 (2002) (suggesting that the Arkansas Check-Cashers Act permits interest rates in excess of 2000%); Charles A. Bruch, Comment, Taking the Pay out of Payday Loans: Putting an End to the Usurious and Unconscionable Interest Rates Charged by Payday Lenders, 69 U. Cin. L. Rev. 1257 (2001) (suggesting annual percentage rates from 390% to 7300%, with an average of 500%). | [
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Robert L. Brown, Justice.
Appellant Ray Dotson, a resident of Washington County, appeals from the Benton County circuit judge’s November 2, 2007 order dismissing Dotson’s amended counterclaim and granting the petition for replevin of the appellee, the City of Lowell, an Arkansas municipal corporation and a city of the first class, which exists entirely within Benton County. Dotson asserts three points on appeal. We affirm.
On October 5, 2004, the City of Lowell’s city council passed an ordinance authorizing then-mayor Phil Biggers to purchase a stagecoach from Dotson for $16,500. The stagecoach was intended to serve as a symbol of the City of Lowell’s history, and it was anticipated that the stagecoach would be used at events to promote the city. This transaction was consummated on October 20, 2004. In February of2006, the City of Lowell contacted Dotson for help in refurbishing the stagecoach. Dotson arranged for the stagecoach to be repaired by Lantham Coach Works in Tipton, Missouri. The City of Lowell tendered four checks to Dotson totaling $10,000 in connection with these services. Upon return from Missouri, the stagecoach remained with Dotson.
On May 23, 2007, the City of Lowell made a written demand on Dotson to return the stagecoach. On that same date, Dotson presented the City of Lowell with an itemized list of expenses associated with the stagecoach totaling $28,248, but he did not return the stagecoach. On June 1, 2007, Dotson claimed that on December 11, 2006, he had entered into an enforceable contract with then-mayor Biggers whereby he had the right to keep the stagecoach. This document, entitled Memorandum of Understanding, stated that in return for Dotson’s prior assistance in procuring, refurbishing, and storing the stagecoach, Dotson would be entitled to use the stagecoach in his private business. Dotson demanded that the City of Lowell comply with the agreement contained in the Memorandum of Understanding.
On June 15, 2007, the City of Lowell filed a complaint and petition for replevin in the Benton County Circuit Court, seeking the return of the stagecoach from Dotson. Dotson next filed a motion to dismiss in which he claimed that venue was improper in Benton County under Arkansas Code Annotated section 16-60-116(a), which requires that an action be brought in the county in which the defendant resides. The City of Lowell filed a response in which it alleged that section 16-60-116(a) had been superseded by Act 649 of 2003, now codified at Arkansas Code Annotated section 16-55-213(a) (Repl. 2005), which allows an action to be brought in the county in which the plaintiff resided. In an order dated June 22, 2007, the circuit judge ruled that venue was proper in Benton County under section 16-55-213(a).
Dotson then filed an answer and a counterclaim against the City of Lowell for breach of contract and unjust enrichment. The City of Lowell moved to dismiss Dotson’s counterclaim and alleged the affirmative defenses of illegality and statute of frauds. In an order dated November 2, 2007, the circuit judge held that the Memorandum of Understanding was void for illegality because it allowed Dotson to use property purchased with public funds for his private benefit in violation of article 12, section 5, and article 16, section 13, of the Arkansas Constitution and Arkansas common law, and that, even if the memorandum of understanding was not void for illegality, it would be unenforceable under the statute of frauds because it lacked a reasonable description of the lease term. The circuit judge dismissed Dotson’s counterclaim for failure to state a claim upon which relief could be granted and ordered him to return the stagecoach to the City of Lowell.
I. Improper venue
For his first point on appeal, Dotson claims that the circuit judge erred in ruling that venue was proper in Benton County under Arkansas Code Annotated section 16-55-213(a), which allows civil actions to be brought in the county in which the plaintiff resided at the time of the events giving rise to the claim. Dotson urges that Arkansas Code Annotated section 16-60-116(a), which is a general venue statute and provides that actions must be brought in the county in which the defendant resides, was the controlling venue statute and, thus, Washington County was the proper venue. The City of Lowell counters that venue was proper in Benton County because the newer general venue statute, section 16-55-213(a), repealed by implication section 16-60-116(a).
We turn then to an analysis of section 16-55-213(a) and section 16-60-116(a). This is a matter of statutory construction, which this court reviews de novo. See McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). The General Assembly is vested with the power to establish venue under the Arkansas Constitution. Ark. Const, amend. 80, § 10. It is this court’s fundamental duty, as well as a basic rule of statutory construction, to give effect to the legislative purpose set by the venue statutes. See Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).
Since 1838, the General Assembly has provided that, in the absence of a statutory exception, the basic rule of venue is that a defendant must be sued in the county where he or she resides or is summoned. See id. To that end, Arkansas Code Annotated section 16-60-116(a) provides that “every other action may be brought in any county in which the defendant or one (1) of several defendants resides or is summoned.”' Nevertheless, in 2003, the General Assembly enacted Act 649 of 2003, the “Civil Justice Reform Act.” Although the act primarily focused on tort reform, Act 649 contained the following venue provision now codified at Arkansas Code Annotated section 16-55-213(a):
(a) All civil actions other than those mentioned in §§ 16-60-101 —16-60-103,16-60-107,16-60-114, and 16-60-115, and subsection (e) of this section must be brought in any of the following counties:
(1) The county in which a substantial part of the events or omissions giving rise to the claim occurred;
(2) (A) The county in which an individual defendant resided.
(B) If the defendant is an entity other than an individual, the county where the entity had its principal office in this state at the time of the accrual of the cause of action; or
(3) (A) The county in which the plaintiff resided.
(B) If the plaintiff is an entity other than an individual, the county where the plaintiff had its principal office in this state at the time of the accrual of the cause of action.
Ark. Code Ann. § 16-55-213(a) (Repl. 2005) (emphasis added).
The City of Lowell contends that venue was proper in Benton County because Arkansas Code Annotated section 16-55-213(a) repeals by implication Arkansas Code Annotated section 16-60-116(a). Repeals by implication, however, are not favored, and this court will make every effort to read seemingly conflicting statutes in a harmonious manner if possible. Griffin, 369 Ark. at 325, 254 S.W.3d at 737; Great Lake Chem. Corp. v. Bruner, 368 Ark. 74, 243 S.W.3d 285 (2006). Repeal by implication is recognized in two situations: (1) where the provisions of two statutes are in irreconcilable conflict with each other; and (2) where the legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends the latter statute as a substitute. Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992).
Recently, in Wright v. Centerpoint Energy Resources Corp., 372 Ark. 330, 276 S.W.3d 253 (2008), this court was asked to determine whether the new statute, section 16-55-213(a), repealed by implication section 16-60-112(a), which specifically provides that personal injury and wrongful-death actions shall be brought in the county where the accident occurred, or in the county where the person injured or killed resided at the time of the accident. The appellant in Wright was the personal representative of the estate of the deceased, who had died from carbon monoxide poisoning in her apartment in Craighead County. Although the deceased had resided in Craighead County at the time of her death and the accident had occurred in Craighead County, the appellant elected to file a wrongful-death action in his county of residence, Crit-tenden County, arguing that venue was proper in the county in which he, as the plaintiff, resided under section 16-55-213(a). The appellant argued that section 16-60-112(a) was in conflict with section 16-55-213(a) and, thus, had been repealed by implication.
This court disagreed, however, finding that the two statutes could be harmonized. In reviewing, section 16-55-213(a) as a whole, this court determined that a wrongful-death action could be brought in only three counties: (1) the county where a substantial part of the events or omissions giving rise to the claim occurred; (2) where an individual defendant resided; and (3) where the plaintiff resided. See Wright, supra (emphasis added). This court determined that the use of the past tense in the subsections of section 16-55-213(a) showed that the General Assembly intended for venue to be fixed “where the plaintiff or defendant resided at the time of the events giving rise to the cause of action.” Id. (emphasis in original). Accordingly, venue was fixed, under both statutes, at the time of the events giving rise to the claim — here, the time of injury or death — thereby precluding the appellant, who was appointed personal representative of the decedent’s estate after the accident, from being a “plaintiff’ under section 16-55-213(a).
The City of Lowell insists that Wright is distinguishable here. We agree. First, the City of Lowell asserts that the statute at issue here, section 16-60-116(a), is like section 16-55-213(a), in that both are general default venue statutes that apply only when other specific venue statutes do not, while the statute at issue in Wright, section 16-60-112(a), was a specific venue statute applicable only to personal injury and wrongful-death actions. Second, the City of Lowell notes that in Wright, both statutes used the past tense in fixing venue, whereas here the newer statute, section 16-55-213(a), fixes venue at the time the cause of action arose and uses the past tense, while the older statute, section 16-60-116(a), fixes venue as defendant’s residence at the time the suit is filed, as evidenced by the legislature’s use of the present tense “resides.”
We conclude that section 16-55-213(a) repeals by implication section 16-60-116(a). First, the two statutes are in irreconcilable conflict with each other. Section 16-55-213(a) provides that all civil actions, excluding a few statutory exceptions, must be brought in one of three counties: (1) the county in which a substantial part of the events or omissions giving rise to the claim occurred; (2) the county in which an individual defendant resided; or (3) the county in which the plaintiff resided. Additionally, the use of the past tense in these subsections evidences the fact that the General Assembly intended for venue to be fixed at the time of the events giving rise to the claim. See Wright, supra. The older statute, section 16-60-116(a), on the other hand, provides that venue is proper in any county where the defendant “resides,” which means that the General Assembly intended for venue to be fixed at the time the suit is filed. See Quinney, 320 Ark. at 185, 895 S.W.2d at 542. Therein lies the conflict. Section 16-60-116(a) provides for a venue — a county where a defendant resides at the time the lawsuit is filed — that is not permitted under section 16-55-213(a).
In sum, we are persuaded of this conflict by the fact that the new general default venue statute expressly fixes venue for “ [a]ll civil actions,” with certain noted statutory exceptions. It also fixes venue at the time the events giving rise to the cause of action occurred, while the existing general default venue provision fixes venue at the time the cause of action is filed. Both points are evidence of the General Assembly’s intent to adopt a new general venue scheme as a substitute for section 16-60-116(a). David Newbern andjohn Watkins have noted the conflict between these provisions in their Arkansas Practice Series on Civil Practice and Procedure:
Act 649 seems to fall into both categories [of repeal by implication]. First, Ark. Code Ann. § 16-55-213(a) establishes a new general rule for venue quite different from the former rule set forth in Ark. Code Ann. § 16-60-116(a), thereby creating an irreconcilable conflict. Second, the plain language of § 16-55-213(a) — i.e., that“[a]ll civil actions,” with certain exceptions,“must be brought in the following counties” — demonstrates the General Assembly’s intent to adopt a new venue scheme as a substitute for the old.
Newbern & Watkins, 2 Arkansas Practice Series, Civil Practice and Procedure § 9:1 n.8 (4th ed.). We affirm the circuit judge on this point.
II. Illegality
For his next point, Dotson asserts that the circuit judge erred in finding that his counterclaim failed to state a claim upon which relief could be granted due to the illegality of the alleged agreement. Dotson contends that the City of Lowell lacked standing to bring an illegal exaction claim and also that there can be no illegal exaction where there is a mutual benefit to the parties.
In arguing this point, the parties disagree over the applicability of article 16, section 13, of the Arkansas Constitution dealing with illegal exactions and article 12, section 5, which prohibits lending public money to individuals. The parties also disagree over whether the public-purpose doctrine controls the issue under our common law. See, e.g., Chandler v. Bd. of Trs. of Teacher Ret. Sys., 236 Ark. 256, 365 S.W.2d 447 (1963). We decline to resolve this issue by an interpretation of the Arkansas Constitution or the public-purpose doctrine. This court has made it clear that we will not address a constitutional question if we can resolve the case without doing so. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968).
We turn, rather, to Arkansas law and specifically to the powers of municipalities set out in the Arkansas Code:
(a) Municipal corporations are empowered and authorized to sell, convey, lease, rent, or let any real estate or personal property owned or controlled by the municipal corporations. This power and authorization shall extend and apply to all such real estate and personal property, including that which is held by the municipal corporation for public or governmental uses and purposes.
(c) The execution of all contracts and conveyances and lease contracts shall be performed by the mayor and city clerk or recorded, when authorized by a resolution, in writing, approved by a majority vote of the city council present and participating.
Ark. Code Ann. § 14-54-302(a), (c) (Repl. 1998).
The record in this case is devoid of any resolution by the City of Lowell’s city council authorizing Dotson’s private usage of the stagecoach under the alleged Memorandum of Understanding. We conclude, therefore, that illegality is readily established by the fact that private use of the stagecoach by Dotson was never sanctioned by resolution of the City of Lowell city council, as required by section 14-54-302(c). This noncompliance was noted by the circuit judge in his order in which he said: “No written resolution has been alleged to have been approved by a majority vote of the Lowell City Council. Accordingly, section (a) A.C.A. § 14-54-302 is inapplicable to the facts before this Court.”
Although the circuit judge did not address the effect of the City of Lowell’s noncompliance with section 14-54-302(c) as the basis for his finding that the alleged contract was illegal, it is axiomatic that this court can affirm a circuit court if the right result is reached even if for a different reason. See, e.g., Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). We hold that the absence of the city council’s resolution is fatal to the validity and viability of the alleged Memorandum of Understanding.
For this reason, we affirm the circuit judge’s dismissal of Dotson’s counterclaim and his order for the return of the stagecoach to the City of Lowell. Because we decide this case as we do, it is unnecessary for us to address the remaining issues raised by the parties. We further decline to address Dotson’s argument raised in his brief on appeal that Arkansas Code Annotated section 14-58-303(a) applies, as no ruling on this point was made by the circuit judge. It is well settled that issues not ruled on by the trial judge will not be considered on appeal. See, e.g., Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001).
Affirmed.
Subsequent ratification of the alleged agreement by the City of Lowell's city council was not argued before the circuit judge or on appeal. See, e.g., Day v. City of Malvern, 195 Ark. 804, 114 S.W.2d 459 (1938). Accordingly, we do not address it. | [
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Per Curiam.
Appellant, Jarsew, LLC, filed a motion for rule on clerk seeking an order of this court that the Arkansas Supreme Court Clerk accept its record and transcript for filing. Appellant attempted to file the record and transcript on May 30,2008, under an extension of time granted by the circuit court on April 23, 2008 , pursuant to a motion for extension under Arkansas Rule of Appellate Procedure-Civil 5(b). The clerk refused the filing based upon a failure to comply with Ark. R. App. P.-Civil 5(b)(1)(C).
To extend the time for filing the record and transcript with the clerk of the Supreme Court, Ark. R. App. P. — Civil 5(b)(1)(C) requires that “all parties have . . . the opportunity to be heard on the motion, either at a hearing or by responding in writing.” Appellant, in its reply to the Appellees’ response to this motion, tacitly admits its failure to give notice to the Appellees of its motion for extension of time. It is clear from the pleadings in this matter that the Appellees were not given an opportunity to be heard on the motion for extension which was granted by the circuit court on April 23, 2008, and, thus, Appellant was not in compliance with Rule 5(b). Therefore, Appellant’s motion for rule on clerk is denied.
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Paul E. Danielson, Justice.
Appellant Steven Wertz appeals from his convictions on two counts of capital murder and his sentence of death. He asserts four points on appeal: (1) that the evidence did not sufficiently corroborate the accomplice testimony; (2) that the jury erred in finding the existence of an aggravator during the sentencing phase; (3) that the jury erred in finding no mitigating circumstance; and (4) that various considerations should be taken into account during this court’s review pursuant to Arkansas Rule of Appellate Procedure — Criminal 10 (2008). We affirm Wertz’s convictions and sentence.
The facts, as derived from the record, are these. On the morning of December 31, 1986, Kathy and Terry Watts were found dead in their Ash Flat home by Kathy’s mother, Judy Bone. Ms. Bone found their almost one-year-old son, alive, near his father’s body. During the investigation into the Wattses’ deaths, it was discovered that a child-custody matter regarding another child was ongoing between Terry Watts and Wertz’s then-wife, Belinda. Ultimately, Wertz became the primary suspect, and, the same day that the bodies were discovered, investigators traveled to Oklahoma, where the Wertzes resided, to inquire.
At that time, Wertz told investigators that he and Jamie Snyder, Jr., the son of a friend, spent the night at Wertz’s home on December 30, 1986. Wertz claimed that he had been sick that evening and that he had gone to the Tinker Air Force Base clinic the next day for treatment, which records corroborated. In addition to Wertz, another suspect was also investigated. In 1989, Glenn Collins, an inmate at the Arkansas Department of Correction, wrote two letters to the chief of the Ash Flat Police Department in which he confessed to committing two murders in Ash Flat “some three years ago.” However, after being interviewed, Collins was eliminated as a suspect because, according to one investigator, his story did not match the crime scene. It appears from the record that, despite having suspects, police neither arrested nor charged anyone in connection with the murders until much later.
In spring 2001, David Huffmaster of the Sharp County Sheriffs Department began to review the case file on the Wattses’ murders after being contacted by Kathy Watts’s sister, Chris Lindner, at a school function. In spring 2002, Huffmaster essentially reopened the case and, over the course of the next few years, conducted interviews of some of the persons previously interviewed and involved in the original investigation. Huffmaster’s interviews of both Belinda Stewart, who had been married to Wertz at the time of the crimes, but had since divorced him and remarried, and Jamie Snyder, Jr., yielded statements that led to an arrest warrant being issued for Wertz on April 27, 2006. On April 28, 2006, a felony information was filed, charging Wertz with two counts of capital murder. He was tried by a jury, was convicted, and as already stated, was sentenced to death. He now appeals.
I. Corroboration of Accomplice Testimony
For his first point, Wertz asserts that there was insufficient evidence to corroborate the accomplice testimony of Jamie Snyder, Jr. He contends that if Snyder’s testimony were eliminated, the independent evidence remaining would eliminate Wertz as the perpetrator of the crimes. He further asserts that other evidence introduced at trial going to opportunity, method, and time of death, did not corroborate Snyder’s testimony, and he points to the testimony he believes eliminates him as the perpetrator. The State responds that the evidence the prosecution presented of Wertz’s motive, threats, and opportunity, as well as Wertz’s conduct and statements before and after the murders, was more than adequate to connect him with the commission of the crimes.
Here, Wertz challenges the sufficiency of the State’s evidence corroborating Snyder’s testimony. During his trial, Wertz moved for a directed verdict, arguing that there was insufficient corroboration of Snyder’s testimony. His motion was denied, and he again moved for a directed verdict on this basis after the defense rested. That motion, too, was denied. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. See id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. See id.
W ertz was convicted of two counts of capital murder. Under Arkansas law in 1986, a person committed capital murder if “with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode[.]” Ark. Stat. Ann. § 41-1501(c) (Repl. 1977 & Supp. 1985). We have held that the premeditation and deliberation required may be formed in an instant. See Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007); Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972). We have further observed that intent can rarely be proven by direct evi dence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. See Winston, supra.
A felony conviction 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. See Ark. Stat. Ann. §43-2116 (Repl. 1977). Corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. See id. Corroborating evidence must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not directed toward corroborating the accomplice’s testimony. See Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). It need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. See Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). The test for corroborating evidence is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. See id. While corroborating evidence may be circumstantial so long as it is substantial, evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. See id.
We begin by outlining Snyder’s testimony. Snyder testified that on the day of the murders, he received a phone call from Wertz, during which Wertz told him that he needed “some help with the matter of Terry Watts.” After meeting Wertz at the armory to turn in some National Guard gear, Snyder and Wertz went to Wertz’s home, arriving between 4:00 and 4:30 p.m. Snyder stated that, while there, Wertz retrieved a shotgun from his home and put it in Snyder’s mother’s car, which Snyder was driving. They then left Wertz’s home. Driving toward Guthrie, Oklahoma, where some of Terry Watts’s relatives lived, Wertz told Snyder that he expected Terry Watts to be at the Guthrie home. According to Snyder, Wertz further explained that there would likely be five to eight people at the home, including children, and that “anyone over eight would need to be eliminated as a possible witness.” When Snyder conveyed his concerns about “including anybody else, especially childrenf,]” Wertz told him that he “would take care of the children and that we would not abort and that I didn’t want to make myself expendable.” Upon driving down a road in Guthrie, Wertz told Snyder that “they” were not there and that he and Snyder “would head over to Arkansas.” They did so, and during the trip, Wertz told Snyder that if they encountered any “law enforcement interference[,]” they “would abort the mission.”
Upon arriving in Ash Flat near midnight, Snyder testified that he and Wertz exited the car, taking shotguns, and approached the front door of the home by its porch. Fie said that Wertz had him knock on the door, which Snyder did. Snyder stated that a male came to the door, looked out, and began to open the door, when Wertz stepped forward. At that time, the male, whom Snyder assumed was Terry Watts, slammed the door closed and yelled “Steve.” At that time, according to Snyder, Wertz fired his shotgun, and Snyder quickly turned to leave. Snyder stated that he believed that Wertz then kicked the door and entered the house. While standing beside the front porch, Snyder heard two or three more shots.
Snyder testified that, as Wertz came out of the house after being inside for no more than five minutes, Snyder returned to the car. He stated that when Wertz entered the passenger’s side of the car, he was laughing and said that “Kathy Watts had a nice body” or “words to that effect.” Snyder said that he turned the car around and exited the property. After Snyder made a wrong turn, Wertz took over driving. Snyder testified that, during their return trip, Wertz told him: “[I]f there were any questions, we had spent the night at the — at his residence in Cushing. And that he had been ill as if with the flu. And that he would go to Tinker Air Force Base on sick call upon our return to give credibility to the alibi.” Snyder said that they returned to Wertz’s home “in the area of 7:00” the morning of December 31.
Our review of the record reveals that there was sufficient evidence to corroborate Snyder’s testimony. Judy Bone testified that on the morning of December 31, 1986, she found both Kathy and Terry Watts dead in their home. Dr. Charles Kokes, the Chief Medical Examiner for the Arkansas State Crime Lab, testified that the autopsy reports revealed that Kathy suffered a number of shotgun-reiated injuries and that Terry was struck by two separate shotgun discharges and had a horizontal cut across his neck. Steve Huddleston, a former investigator with the Arkansas State Police, testified that a total of four shotgun shells were recovered from the crime scene.
In addition, evidence was presented that Wertz had made several threats to Terry Watts. Jeffery Birt testified that about one week prior to December 18, 1986, he heard Wertz say, “[W]e did it their way. Now we are going to do it my way.” Birt observed that Wertz was complaining about the cost of the custody matter, that things were not going his way, and that it was time to do it his way. John Watts testified that, in July 1986, he went with Terry Watts to pick up his daughter from the Wertzes’ home. He stated that as they were leaving, Wertz said, “[I]t was a long way back to Arkansas.” Finally, Tom Garner, the attorney who aided Terry Watts with his custody matter, testified that at some time in December 1986, Terry came to him and told him that he wanted to make a will. Gamer said that Terry told him he wanted to get his affairs in order in case something happened to him because, after his last custody hearing, Wertz told Terry “he was a dead man.”
Finally, further corroborating Snyder’s testimony was the testimony of Belinda Stewart, Wertz’s former wife, who was married to him at the time of the murders. She testified that, during the time she had her daughter for visitation after Christmas of 1986, Wertz told her daughter several times that she would not have to go back to her father’s. Belinda further testified that on December 30, she saw her husband and Snyder at her house around 4:00 or 4:30 p.m. She said that after 4:30 p.m., she did not see Wertz the rest of the day. She said that the next time she saw him was early the next morning, as the sun was starting to rise. She further testified, “He just said that if anybody asked that he was home the whole night and that he was at the Armory through — during the day time.” She said that when Wertz left the house at 4:00 p.m. the day of the murders, he took a bag with him. She further stated that while they had several guns in their home in a closet, she noticed that a little shotgun was missing.
After eliminating Snyder’s testimony, we hold that the other evidence independently establishes the crimes and tends to connect Wertz with their commission. The crimes were clearly established by the testimony of Ms. Bone, Dr. Kokes, and Investigator Huddleston. We must turn, then, to whether the other testimony tends to connect Wertz to the crimes. It clearly does.
As set forth above, Wertz made several threats to the victim on different occasions, and we have held that proof of ill will and threats is sufficient to corroborate an accomplice’s testimony. See Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). Moreover, Wertz told Belinda, his then-wife, to tell anyone who asked that he was home on the night in question when she said he was not, and we have held that a family member’s testimony that he or she was asked to lie about an appellant’s whereabouts during the commission of a crime is sufficient to connect the appellant to the crimes as well as corroborate an accomplice’s testimony. See Stephenson, supra. In addition, Belinda’s testimony that Wertz was not home on the night in question, that he took a bag with him when he left, that a shotgun was missing, and that he told her daughter that she would not have to return to her father’s home was circumstantial evidence of Wertz’s involvement. As we have already stated, corroborating evidence may be circumstantial, so long as it is substantial. See Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). In accord with the statute and our case law, we hold that the foregoing testimony establishes the crimes and tends to connect Wertz with their commission.
We further note that in support of his argument on this point, Wertz points to the many inconsistencies he believes were present in the testimony of the various witnesses, as well as the fact that he presented evidence that he believes contradicted Snyder’s testimony. Admittedly, there are discrepancies. However, factual discrepancies in the testimony are not for this court to resolve, as the credibility of witnesses is an issue for the jury and not this court. See Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. See Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). Because our review of the record reveals that there was sufficient corroborating evidence to support Snyder’s testimony, we affirm Wertz’s convictions and sentence as to this point.
II. Existence of an Aggravator
As his second point, Wertz avers that the prosecution presented no evidence supporting the notion that Wertz knew the Wattses’ infant son, Joshua, was in the house at the time of the murders. For that reason, he claims, the State did not prove the aggravator that he knowingly created a great risk of death to a person other than the victim. The State urges that Wertz’s challenge is without merit. It contends that it presented substantial evidence in support of the aggravator at issue, which demonstrated that Wertz knowingly fired a shotgun into a house where he knew a baby resided.
Whenever there is evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. See Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). Once the jury has found that an aggravating circumstance exists beyond a reasonable doubt, this court may affirm only if the State has presented substantial evidence in support of each element therein. See id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. See id. To make this determination, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. See id.
During sentencing, the jury was instructed on two aggravating circumstances:
(4) the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim; [and]
(5) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody^]
Ark. Stat. Ann. § 41-1303 (Repl. 1977 & Supp. 1985). On appeal, Wertz argues that there was insufficient evidence to support a finding of the former.
After viewing the evidence in the light most favorable to the State, we hold that the jury could have determined beyond a reasonable doubt that Wertz knowingly created a great risk of death to the Wattses’ child, Joshua. Ms. Bone testified that she found Joshua in the Wattses’ home, near his father’s lifeless body. Shotgun shells were found both in the living room area of the home, where Joshua was found, as well as in a bedroom in which was Joshua’s crib. Prior to .the murders occurring, Wertz told Snyder that children might be present and that those over eight would need to be eliminated as possible witnesses. In addition, David Huffmaster testified that, based on his review and his investigation and the investigatory file, Wertz was aware that the Wattses had an infant son. We hold that this evidence is substantial evidence that Wertz knowingly created a great risk of death to Joshua Watts, a person other than the victims. We, therefore, affirm on this point as well.
III. Failure to Find a Mitigating Circumstance
Wertz next asserts that despite the fact that the jury was made aware that he did not have any criminal history, it erroneously found that no mitigation existed. The State, on the other hand, maintains that the jury did not err in so finding as the jury was not provided with proof that Wertz had no significant prior criminal history. It avers that the jury was made aware that Wertz had no criminal history by way of defense counsel’s closing argument and that statements by counsel are not evidence that can be properly relied upon by the jury.
We have previously held that a jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. See Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998). In addition, we have recognized that a jury may generally refuse to believe a defendant’s mitigating evidence; however, when there is no question about credibility and when objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. See Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003).
It is clear to this court that the jury did not erroneously reject any mitigating circumstance. Our review of the record reveals that the only reference to Wertz’s alleged lack of criminal history was made during defense counsel’s closing argument during the sentencing phase. Defense counsel’s credibility aside, we are unable to find any objective proof that was presented of Wertz’s alleged lack of criminal history, which would have made a reasonable conclusion inescapable. Moreover, the jury had been instructed that counsel’s arguments were just that, arguments, were not evidence, and, in fact, should be disregarded if there was no basis in the evidence for the argument:
[e] Opening statements, remarks during the trial, and closing arguments of the attorneys are not evidence, but are made only to help you in understanding the evidence and applicable law. Any argument, statements, or remarks of attorneys having no basis in the evidence should be disregarded by you.
For these reasons, it was within the jury’s province to disregard or refuse to believe what Wertz claims was mitigating evidence. We, therefore, affirm as to this point as well.
IV Points for Rule 10 Consideration
For his fourth and final point, Wertz sets forth several issues that he believes warrant reversal of his convictions and should be reviewed by this court pursuant to Ark. R. App. P.-Crim. 10. Specifically, Wertz points to: (1) the fact that Snyder was convicted of manslaughter for his involvement and was sentenced to twenty years’ imprisonment, with fifteen years suspended and more than 400 days’ credit for time served; (2) the viability of Glenn Collins as an alternative suspect; (3) the fact that Snyder passed a polygraph examination when he first denied participation in the murders; (4) the admissibility of photographs from the crime scene; (5) his motion to dismiss premised upon the State’s alleged failure to prove that Kathy Watts was indeed the victim of a homicide, due to the lack of identification of her by Judy Bone or David Lindner; (6) the admissibility of a Polaroid photograph; (7) and Wertz’s statement that he would kill anyone over the age of eight at the residence in Guthrie. Rule 10, in pertinent part, provides:
(b) Mandatory review. Whenever a sentence of death is imposed, the Supreme Court shall review the following issues in addition to other issues, if any, that a defendant may enumerate on appeal. Counsel shall be responsible for abstracting the record and briefing the issues required to be reviewed by this rule and shall consolidate the abstract and brief for such issues and any other issues enumerated on appeal. The Court shall consider and determine:
(i) pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Ark. Code Ann. § 16-91-113(a), whether prejudicial error occurred;
(ii) whether the trial court failed in its obligation to bring to the jury’s attention a matter essential to its consideration of the death penalty;
(iii) whether the trial judge committed prejudicial error about which the defense had no knowledge and therefore no opportunity to object;
(iv) whether the trial court failed in its obligation to intervene ■without objection to correct a serious error by admonition or declaring a mistrial;
(v) whether the trial court erred in failing to take notice of an evidentiary error that affected a substantial right of the defendant;
(vi) whether the evidence supports the jury’s finding of a statutory aggravating circumstance or circumstances; and
(vii) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
Ark. R. App. P.-Crim. 10(b).
Pursuant to Rule 10, we have reviewed the entire record, which includes those matters pointed to by Wertz, and we hold that no reversible error exists. We have further reviewed the record pursuant to Arkansas Supreme Court Rule 4-3 (h) (2008), and no reversible error has been found.
For the foregoing reasons, we affirm the orders of conviction and sentence.
Affirmed.
Glaze, J., not participating.
This requirement remains virtually unchanged and is now codified at Arkansas Code Annotated § 16-89-lll(e)(l) (Repl. 2005).
Dr. Kokes did not perform the Wattses’ autopsies, but testified in place of the medical examiners who conducted the autopsies following the murders based on their reports.
As stated in his brief, Wertz does not dispute the testimony of either Watts or Birt that he threatened Terry Watts during the Oklahoma child-custody matter.
We note that Wertz states in his brief that he does not dispute that the Wattses were murdered.
We note on this point that the record reveals defense counsel’s statement to the circuit court that Wertz refused to allow defense counsel to conduct a mitigation investigation. We further note that while there was testimony that Wertz served as a reserve police officer, which he appears to equate to further evidence that he had no criminal history, such evidence would in no way necessitate a finding by the jury of no criminal history. Certainly there have been persons who have served as an officer and also have had a criminal history.
David Lindner is Ms. Bone’s son-in-law. He returned to the Wattses’ home with Ms. Bone and saw the bodies. | [
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Per Curiam.
In accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas (2007), Judge William R. Wilson, Jr., of the United States District Court for the Eastern District of Arkansas filed a motion and certifying order with our clerk on September 19,2008. The certifying court requests that we answer one question of Arkansas law that may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court. The law in question involves whether Arkansas Code Annotated section 16-55-212(b) (Repl. 2005) violates the Arkansas Constitution.
After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question: Whether Arkansas Code Annotated section 16-55-212(b) violates the Arkansas Constitution in requiring that any evidence of damages for the costs of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.
This per curiam order constitutes notice of our acceptance of the certification of question of law. For purposes of the pending proceeding in the Supreme Court, the following requirements are imposed:
A. Time limits under Rule 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Kenneth Jones, is designated the moving party and will be denoted as the “Petitioner,” and his brief is due thirty days from the date of this per curiam; the defendant, Fred Stores of Tennessee d/b/a Fred’s Store, shall be denoted as the “Respondent,” and his brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondent’s brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs content. Only the following items required in Rule 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Rule 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondent.
Accepted. | [
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Elana Cunningham Wills, Justice.
This appeal requires our court to decide when the statute of limitations commences to run for the offense of criminal non-payment of child support. Appellant William Reeves married Maureen Reeves on October 28, 1977, and the couple had a daughter, Amanda Reeves, who was born on July 12, 1978. The Reeveses divorced on June 2, 1982, in Memphis, Tennessee. As part of the Tennessee divorce decree, William was ordered to pay $300 per month in child support. However, in the ensuing years, William paid little, if any, on his child support obligations. William moved to Benton in 1986. Amanda reached the age of eighteen in 1996.
In August of 2003, Maureen asked a Shelby County, Tennessee, court to reduce William’s child-support arrearages to a judgment; the court did so and entered judgment against William in the amount of $43,392.00. On January 29, 2004, Maureen filed a petition to register the Tennessee judgment in the Saline County Circuit Court, and the circuit court granted her motion on March 24, 2004. Maureen enlisted the aid of the Saline County Office of Child Support Enforcement (OCSE) in an attempt to collect the judgment, but both parties were unsuccessful.
The OCSE finally referred the matter to the Saline County Prosecutor’s Office on May 24, 2006. William was charged with failure to pay child support, a Class B felony, on December 8, 2006. On April 3, 2007, William filed a motion to dismiss the charges against him on the grounds that the statute of limitations had expired. The trial court denied his motion, finding that the offense of failing to pay child support is a continuing offense. The matter proceeded to jury trial, and a Saline County jury convicted William on one count of felony nonsupport. The circuit court accepted the jury’s sentencing recommendation and sentenced William to 180 months’ probation and ordered him to pay restitution. William filed a timely notice of appeal, and he now continues his argument that the State’s prosecution should have been barred by the statute of limitations.
It is within the trial court’s discretion to grant a motion to dismiss the prosecution of a charge. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); see also Cameron v. State, 94 Ark. App. 58, 224 S.W.3d 559 (2006); Morris v. State, 88 Ark. App. 251, 197 S.W.3d 41 (2004). When a court’s ruling on a matter is discretionary, we will not reverse unless there has been an abuse of that discretion. See, e.g., Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). An abuse of discretion may be manifested by an erroneous interpretation of the law. See, e.g., Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003); Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001).
This court has specifically held that nonsupport is a continuing offense. See Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004). For statute of limitations purposes, a continuing offense is committed at the time a course of conduct or the defendant’s complicity therein is terminated. See Ark. Code Ann. § 5-1-109(e)(1)(B) (Repl. 2006). The primary question presented in the instant case is when the statute of limitations for the continuing offense of nonsupport begins to run. Stated another way, when did William’s complicity in the crime end?
William urges that the statute of limitations should have begun to run at the time his daughter turned eighteen, in 1996. While he acknowledges that non-payment of child support is a continuing offense, he nonetheless contends that his complicity in the crime ended in 1996 when his child support obligation ceased to accrue. The State responds that the statute establishing nonpayment of child support, Ark. Code Ann. § 5-26-401 (a) (2) (Repl. 2006), does not provide that a minor child’s reaching the age of majority ends the obligation to pay arrearages. Therefore, the State asserts, the continuing crime of felony nonsupport does not cease until the obligor meets his financial obligations.
In Hampton v. State, supra, the appellant, Hampton, was charged with criminal nonsupport for failing to provide court-ordered support for his child for approximately six years. The information alleged that he had failed to provide child support “on or about a six-year period preceding September 25, 2001,” the date of the filing of the information. Hampton, 357 Ark. at 481, 183 S.W.3d at 153. Hampton filed a motion in limine seeking to limit the period of time in which the State could charge him for nonsupport and seeking to limit the time whereby the State could calculate the amount of child support owed. The trial court denied his motions. Id. at 475, 183 S.W.3d at 149.
On appeal, Hampton continued his argument that the State should have been limited to charging him with nonsupport for the three-year period of time prior to the date on which he was charged. Id. at 480, 183 S.W.3d at 152. This court rejected his argument, holding that, in cases of continuing courses of conduct, the statute of limitations begins to run when the course of conduct or the defendant’s complicity therein is terminated; therefore, because he had failed to pay support for that six-year period, his complicity had not terminated at the time charges were filed, and the State’s prosecution of the offense was within the three-year statute of limitations. Id. at 481, 183 S.W.3d at 153.
Hampton, however, is factually distinguishable from the instant case. In Hampton, the defendant’s child was still under the age of eighteen, see id. at 477, 183 S.W.3d at 151, and his child-support obligations were thus still ongoing. In the present case, William Reeves’s child turned eighteen in 1996, ten years before the State commenced its prosecution for nonsupport. Thus, Hampton does not squarely address the issue before the court.
Neither does Morris v. State, 88 Ark. App. 251, 197 S.W.3d 41 (2004). In Morris, the court of appeals relied on Hampton and held that, because the information alleged that the defendant failed to pay support from May 1, 1986, through June 1, 2003, the continuing offense of nonsupport was committed as of June 1, 2003, and the information, which was filed on June 17, 2003, was filed within three years of the date the offense was committed. Morris, 88 Ark. App. at 255-56, 197 S.W.3d at 44. Again, though, as was the case in Hampton, there was no issue in Morris concerning whether the supported child’s reaching the age of majority terminated the obligation to pay support and thus triggered the running of the statute of limitations.
As stated previously, nonsupport is a continuing offense. However, there is no controlling case law in Arkansas addressing the precise issue before the court — when the statute of limitations begins to run for that offense. It is plain that even a “continuing offense” has a point at which it terminates and the statute of limitations commences to run. See, e.g., State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1979) (statute of limitations for the continuing offense of theft by receiving does not begin to run until defendant’s possession of stolen property ends).
In this case, however, before we can determine when the statute of limitations began to run, we must determine which version of the statute governs William’s crime. As noted above, William’s daughter reached the age of eighteen in 1996. As of that date, Arkansas Code Annotated section 5-26-401 (Repl. 1993) read, in pertinent part, as follows:
(a) A person commits the offense of nonsupport if, without just cause, he fails to provide support to:
(2) His legitimate child who is less than eighteen (18) years old[.]
(b) Nonsupport is a Class A misdemeanor, except that it is a Class D felony [in certain other circumstances not applicable to the instant case].
It was not until the statute was amended in 1997 that the degree of the offense came to depend upon the amount owed in past-due child support. See Act of Apr. 9, 1997, No. 1282, 1997 Ark. Acts 7275. Specifically, after the 1997 amendment, section 5-26-401(b)(l) stih declared that failure to support a “legitimate child who is less than eighteen years old” was a Class A misdemeanor; however, section 5-26-401 (b)(2) added that nonsupport became a Class B felony “if the person owes more than twenty-five thousand dollars ($25,000) in past-due child support, pursuant to a court order or by operation of law.” Ark. Code Ann. § 5-26-401 (b)(2) (Repl. 1997). See also Morris, supra (Roaf, J., concurring).
The State chose to prosecute William under the current version of the law, charging him with a Class B felony because his arrearages amounted to more than $43,000.00. However, this court has frequently noted the “well-established rule that a sentence must be in accordance with the statutes in effect on the date of the crime.” State v. Ross, 344 Ark. 364, 367, 39 S.W.3d 789, 791 (2001). The court has also “consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime.” Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007).
Arkansas case law also provides that no one has any vested right in a statute of limitations until the bar of the statute has become effective. See Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996); Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978); Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956). The General Assembly may also validly enlarge the period of limitations and make the new statute, rather than the old, apply to any cause of action which has not been barred at the time the new statute becomes effective. Morton v. Tullgren, supra. However, the General Assembly only has the power to amend statutes of limitation affecting causes of action which are not yet barred. See Branch v. Carter, supra. Therefore, when the action is already time-barred at the time the new statute becomes effective, the General Assembly may not revive a cause of action previously barred by the existing statute of limitations. See Durham v. Ark. Dep’t of Human Servs., 322 Ark. 789, 912 S.W.2d 412 (1995).
This precept is applicable to criminal cases. See Dye v. State, 82 Ark. App. 189, 119 S.W.3d 513 (2003). In such cases, the statute of limitations is jurisdictional and goes to the court’s power to try the case. Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); McIlwain v. State, 226 Ark. 818, 294 S.W.2d 350 (1956).
Here, as mentioned above, the nonsupport statute was amended in 1997 to make nonsupport a Class B felony with a statute of limitations of three years. Prior to that date, however, the statute was a Class A misdemeanor, which had a statute of limitations of one year. See Ark. Code Ann. § 5-l-109(b)(3) (Repl. 1993). We conclude that the date of the crime of nonsupport in this instance must be determined based upon the previous version of the statute, prior to its amendment in 1997.
This court strictly construes criminal statutes and resolves any doubts in favor of the defendant. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006); Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). Although the crime of nonsupport is a continuing one, it is clear that, under the previous version of the statute, the defendant’s course of conduct ended upon the child’s eighteenth birthday. The previous version of the statute made it a crime for a person to “fail[ ] to provide support to [his] . . . [legitimate child who is less than eighteen (18) years old.” No reference was made to non-payment of any past-due amounts. As a consequence, it is unnecessary to determine when the defendant’s complicity ended under the new version of the statute.
Amanda Reeves’s eighteenth birthday fell on July 12, 1996. The effective date of the 1997 amendment to section 5-26-401 was August 1, 1997. The one-year statute oflimitations in effect for a Class A misdemeanor expired several weeks prior to the effective date of the amended version of the statute (which incorporated the three-year statute of limitations for a Class B felony). The State was time-barred from bringing the misdemeanor charges against William Reeves under the prior version of the statute. Thus, the amended statute making non-payment of past-due amounts a Class B felony, with its three-year statute of limitations, may not be applied against Reeves. Accordingly, the circuit court erred in denying William’s motion to dismiss the criminal charges against him.
Reversed and dismissed.
The original information stated that the offense date was “6/3/1982 - 7/12/1996.” However, an amended information filed on July 17,2007, reflects an offense date of “6/3/1982 - 7/17/07.”
The General Assembly adjourned that year on May 2,1997, and Act 1282 of 1997 did not contain an emergency clause. Pursuant to Amendment 7 of the Arkansas Constitution, Acts of the General Assembly that do not contain an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns. See Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).
William raised a second point on appeal in which he argued that his prosecution for a Class B felony violated the Ex Post Facto Clause of the Constitution; however, because we reverse on statute-of-limitations grounds, we need not address his second argument. | [
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Jim Gunter, Justice.
This appeal arises from the September 21, 2007 order of the Sebastian County Circuit Court ruling that the May 2, 2006 list of bail bonding companies prepared by Appellee Nancy Brewer, circuit court clerk, was in conformity with Act 417 of 1989 as well as subsequent amendments. Appellants Bob Cole Bail Bonds, Inc (“Bob Cole”), Exit Bail Bonds, Inc. (“Exit”), and Bob Underwood, Inc. (“Bob Underwood”) now bring this appeal. First Arkansas, Inc. (“First Arkansas”) brings a cross-appeal. We affirm the circuit court’s rulings on both the direct appeal and the cross-appeal.
Act 417 of 1989, currently codified as Arkansas Code Annotated sections 17-19-101 through 17-19-306, went into effect on March 8, 1989, providing that bail bondsmen should be included on the list in the order in which they initially register with the clerk. Peggy Watson was the circuit clerk of Sebastian County in 1989. When she posted the list in 1989, Bob Cole was listed first, Bob Underwood was listed second, and AAA (now Exit) was fourth. In 1997, Nancy Brewer became the circuit clerk. Brewer relied upon the list provided to her by Watson. On October 25, 2005, Brewer received a letter from Appellee Spencer Bonding Services, Inc., (“Spencer”) asserting that it should be first on the list. The next day, Brewer received a letter from First Arkansas, asserting that it should be first on the list. Neither First Arkansas nor Spencer was on the list provided to Brewer.
After researching the clerk’s records, Brewer discovered that the list she had received from Watson was incorrect because the bond companies’ names were not listed in the order in which they registered as required by Arkansas Code Annotated section 17-19-306. She then made a new list with the bonding companies listed in the proper order according to the statute with Spencer listed first, First Arkansas second, Bob Cole third, Bob Underwood fifth, and Exit tenth. Brewer sent this new list to the jail on May 2, 2006. The next day, Bob Cole filed suit against Brewer as circuit clerk and sought an emergency temporary injunction and a permanent injunction commanding Brewer to reinstate the original list. The circuit court ordered Brewer to reinstate the original list and enjoined Brewer from changing the list until a hearing could be held. First Arkansas, Spencer, Exit, and Underwood moved to intervene in the case. The circuit court granted these motions. A hearing was held on August 23, 2007. On September 21, 2007, the circuit court found that the May 2, 2006 list made by Brewer was the proper priority listing of bail bond companies. Appellants Bob Cole, Bob Underwood, and Exit all filed notices of appeal. First Arkansas also filed a notice of appeal, which we will treat as a cross-appeal, asserting that it should be first on the list.
On appeal, Appellants assert that the circuit court should have applied the equitable doctrines of laches and estoppel to Brewer, First Arkansas, and Spencer. We will not address the merits of this argument because Appellants failed to obtain a ruling on these issues. The circuit court’s order contains no reference to laches or estoppel. The failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).
On cross-appeal, First Arkansas asserts that the circuit court erred in failing to find that First Arkansas was the first to register and was entitled to be the first on the jail list. Specifically, First Arkansas asserts that (1) the subsequent acts amending Act 417 of 1989 do not conflict with the language of the Act; (2) Act 417 clearly and unambiguously indicated the order on the list should be based on individual bail bondsmen registration and (3) even if, based on the subsequent acts, the order should be based on company registration, First Arkansas should still be first on the list pursuant to principal-agent common law.
The issue here is whether the registration of individual bondsmen controls or whether the registration of the bond companies controls. The bail-bond registry shows that Mark Gilmore and Carolyn Pollan, both representatives of First Arkansas, registered as individuals on April 7, 1989. Spencer registered as a company on April 11, 1989 at 8:27 a.m. That same day, at 10:57 a.m., First Arkansas registered as a company. Spencer is listed first on Brewer’s May 2, 2006 list because Spencer was the first company to register. First Arkansas asserts that, because its representatives registered before Spencer, it should be first. To decide this issue, we must construe Act 417 of 1989.
We review issues of statutory construction de novo. Ark. Comprehensive Health Ins. Pool v. Denton, 374 Ark. 162, 286 S.W.3d 698 (2008). It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. 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. Id. However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. This court seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id. We are 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. City of Pine Bluff v. S. States Police Benev. Ass’n, 373 Ark. 573, 285 S.W.3d 217 (2008).
Act 417 of 1989 governs the practice of bail bondsmen. The Act provides, in pertinent part:
The chief law enforcement officers of any facility having individuals or prisoners in their custody shall post in plain view in the facility housing those individuals or prisoners a list provided by the circuit clerk. The list prepared by the circuit clerk and approved by the circuit court shall contain the names of professional bail bondsmen who register with the circuit clerk for the purpose of being included on the list. Professional bail bondsmen shall be included on the list in the order in which they initially register with the clerk. The list provided by the circuit clerk and approved by the court shall include the name of the professional bail bondsman, the company the bail bondsman represents, and the bail bondsman’s office address and phone number.
Act of Mar. 8, 1989, No. 417,1989 Ark. Acts 843, 849-50 (emphasis added). The Act was amended by Act 402 of 1993, now codified as Arkansas Code Annotated 17-19-306, which provides:
(a) The chief law enforcement officers of any facility having individuals or prisoners in their custody shall post in plain view in the facility housing those individuals or prisoners a list provided by the circuit clerk.
The list prepared by the circuit clerk and approved by the circuit court shall contain the names of the professional bail bond companies, which are registered with the circuit clerk for the purpose of being included on the list.
(b) Professional bail bond companies shall be included on the list in the order in which they were initially registered with the clerk pursuant to Act 417 of 1989. The order of the company names shall not change from year to year. The agents’ names will be listed under the professional bail bond company with whom they are licensed.
Act ofMar. 9,1993, No. 402, 1993 Ark. Acts 913, 913-14 (emphasis added). The Act was again amended by Act 1139 of 2001, which provides:
(a)(1) The chief law enforcement officers of any facilities having individuals or prisoners in their custody shall post in plain view in the facility housing those individuals or prisoners a fist of bonding companies authorized to do business in the county provided by the circuit clerk.
(2) The fist prepared by the circuit clerk and approved by the circuit court shall contain the names of the professional bail bond companies which are registered with the circuit clerk for the purpose of being included on the fist.
(3) This registration is for the purpose of being on the phone fist in each county only.
(4) Once a professional bail bond company has registered with a circuit clerk to be on the phone list, it shall not be necessary for it to register each year. The company will keep its place on the list from year to year.
(5) The fist shall be posted in each municipality of the county.
(b)(1) Professional bail bond companies shall be included on the list in the order in which they were initially registered with the circuit clerk pursuant to this chapter.
(2) The order of the company names shall not change from year to year.
Act of Mar. 28, 2001, No. 1139, 2001 Ark. Acts 4272, 4272-73 (emphasis added).
Arkansas Code Annotated section 17-19-101(5) defines “professional bail bond company” as “an individual who is a resident of this state, an Arkansas firm, partnership, or corporation.” Section 17-19-101(6) defines “professional bail bondsman” as “an individual who is a resident of this state and who acts through authority of a professional bail bond company.”
Here, the circuit court made the following finding:
The Court finds that subsequent acts amending Act 417 of 1989, do not conflict with the language of said Act regarding the registration of bail bondsmen and/or companies. In the definition of “professional bail bondmen” and “professional bail bond company” they are both defined as “individuals” authorized to make bonds.
While Act 417 refers to bondsmen and Acts 402 and 1139 refer to bond companies, we agree with the circuit court’s finding that Act 417 of 1989 does not conflict with the subsequent amendments. The amendments state that the bail bond companies should be included on the list in the order in which they initially registered. According to the 1989 registration fist, Spencer was the first company to register. Moreover the registration list clearly shows that, although Pollan and Gilmore were representatives of First Arkansas, they registered as individuals because they have “Ind.” listed next to their names rather than “Co.” Therefore, we hold that the May 2,2006 list with Spencer listed first is in compliance with Act 417 of 1989 and its subsequent amendments. Accordingly, we affirm.
Affirmed on direct appeal; affirmed on cross-appeal. | [
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Jim Hannah, Chief Justice.
Dollarway Patrons for Better
Schools, Felix Smart, Debbie Jenkins, Jamie Barajas, and Mary Pringos (“DPBS”) appeal a decision of the Jefferson County Circuit Court dismissing their complaint as an untimely election contest. DPBS asserts this was error because the complaint did not assert an election contest but rather states a viable cause of action in illegal exaction. According to DPBS, this cause of action asserts that the election was void and, therefore, any tax increase imposed is an illegal exaction.
We hold that DPBS attempted to state a cause of action in illegal exaction, and that the circuit court erred in finding that DPBS alleged a cause of action contesting the election. We reverse and remand this case for consideration under Ark. R. Civ. P. 12(b)(6) and to determine whether DPBS has stated a cause of action in illegal exaction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (4).
In 2006, the Altheimer School District was consolidated into the Dollarway School District. This created a new school district (School District) that was taxed at two different rates. Those who lived in the area that was formerly the Altheimer School District were taxed at 32.6 mills, while those living in what was the former
Facts Dollarway School District were taxed at 40.8 mills. After consolidation, the new School District requested that the Jefferson County Election Commission set a special election for consideration of a millage increase in taxation. The Election Commission set the election, and a Notice of Election was published that informed the public that the ballot question was whether to raise taxes in the new School District to 42.3 mills. The election was held, and the Election Commission certified that 399 votes had been cast in favor of the new rate of 42.3 mills and 378 votes had been cast against the new rate.
DPBS alleges that the election was void because the School District, as the taxing entity, and as the entity that sought the millage increase, misled the electorate by publishing and circulating information prior to the election that misrepresented the tax increases. The information provided by the School District stated that the increases would be only half as great as the measure voted on imposed. For example, where a person had real estate appraised at $30,000, a School District pamphlet showed that the tax increase for a person living in the former Altheimer School District would be $29.30 per year and for a person living in the former Dollarway School District the tax increase would be $4.50. However, a table in the possession of the School District received from financial advisors prior to the election showed that actual increases would be $58.20 and $9.00 respectively.
Motion to Dismiss
The School District filed a motion to dismiss under Ark. R. Civ. P. 12(b)(1), arguing a lack ofjurisdiction in that the complaint stated a cause of action to contest an election but was barred by a failure to bring the action within twenty days of the election as required by Ark. Code Ann. § 6-14-116. Relying on Ark. R. Civ. P. 12(b)(6), the School District also alleged DPBS stated no cause of action under illegal exaction.
We review a decision on a motion to dismiss by accepting the facts alleged as true and liberally construe them in plaintiffs favor. Bright v. Zega, 358 Ark. 82, 186 S.W.3d 201 (2004). In stating a cause of action, facts must be pled; mere conclusions will not be accepted as facts. Id. As to issues of law presented, our review is de novo. See R.K. Enters., LLC v. Pro-Comp Mgmt., Inc., 372 Ark. 199, 272 S.W.3d 85 (2008).
Ark. R. Civ. P. 12(b)(1)
DPBS’s complaint purports to state causes of action for illegal exaction, declaratory judgment that any taxes collected based on the election constitute an illegal exaction, an injunction against imposition of the taxes, and for costs. The primary allegation in the complaint is that preelection misrepresentations by the Dollarway Board of Education and employees of the School District voided the election. DPBS argues that because the election is void, there is no authority to collect the taxes, and this makes their collection an illegal exaction. DPBS does not allege that there were any irregularities in the election process and does not contest the election results.
The circuit court relied on Ark. Code Ann. § 6-14-116:
(a) If the election of any member of a school district board of directors is contested, it shall be before the circuit court of the county in which the school district is domiciled.
(b) All actions to contest the election shall be commenced within twenty (20) days after the date the election is certified.
(c) Actions to contest the election of school district officers shall follow the procedures set out in § 7-5-801 et seq.
Even though the statute speaks to the election of board members, it has been applied in other school elections. See, e.g., Douglas v. Williams, 240 Ark. 933, 405 S.W.2d 259 (1966). The intent of this statute was to “place jurisdiction for the contest of all school election matters in the circuit court.” Adams v. Dixie Sch. Dist. No. 7, 264 Ark. 178, 182, 570 S.W.2d 603, 605 (1978).
Section 6-14-116(c) (Supp. 2005) provides that an election contest under this section follows the procedures set out in the general election contest procedures set out in the Arkansas Code beginning in Ark. Code Ann. § 7-5-801 (Repl. 2000). Because the general election contest procedures are followed, this court’s discussion in King v. Davis, 324 Ark. 253, 255, 920 S.W.2d 488, 489 (1996), is helpful:
In Phillips v. Earngey, 321 Ark. 476, 901 S.W.2d 782 (1995), and in Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), we distinguished between election contests and actions brought to declare an election void. We did so, however, only for the purpose of discussing whether an election commission might be a proper party. We did nothing in those cases to disturb the conclusion we reached in Files v. Hill, supra, that “the mere fact that one bringing suit only seeks to have the election declared void and does not seek the office for himself, or even for the candidate he espouses, does not keep the proceeding from being categorized as an election contest.” See also Spires v. Election Comm’n of Union County, 302 Ark. 407, 790 S.W.2d 167 (1990).
There thus are two types of election contests. When it is of the type where the contestant seeks to oust and replace the certified winner, the proof must be as we stated in Binns v. Heck, supra, but a contest of the election in general, seeking to have it declared void altogether is different.
This court in Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), noted that in an election contest an election may not be voided for actions less grave than those set out in Patton v. Coates, 41 Ark. 111 (1883). In Patton, fraud and coercion made it impossible to count votes; thus, the vote count was at issue. In Files the issue was again the vote count.
Thus, while there are two forms of election contests, both types concern counting the votes. The first type of election contest is a demand that votes be counted, recounted, or otherwise determined. The second type of election contest is one where the votes, though cast, cannot be counted. The inability to count votes voids the election. See Files, supra. Both forms of election contest concern counting the votes, and both seek to invalidate an election based on the results of the election.
DPBS does not seek to invalidate the results of the election. It does not seek to have votes counted or recounted, nor does it claim that votes cannot be counted. Rather, DPBS alleges that there was no authority to hold the election at all. The cases cited by DPBS allow for an action to void an election on this basis. In Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937), Phillips brought suit to enjoin disbursement of revenues collected under an initiative act. The challengers questioned the existence of the act authorizing the election. This was based on several grounds including that the “submission of the question at the election was unauthorized under amendment No. 7 . . . and that act No. 1, therefore, did not become law notwithstanding the favorable vote thereon.” Phillips, 194 Ark. at 947, 110 S.W.2d at 28. This court stated as follows:
That such suits are not election contests has been recognized in all the similar cases which have come before this court, and that any citizen or taxpayer may institute a proper suit to prevent unauthorized and illegal diversion of public funds is a proposition of law which this court has frequently announced, and the right of the individual citizen to be thus heard has always been enforced.
Phillips, 194 Ark. at 948, 110 S.W.2d at 28. In Phillips, the court concluded that the proposed act was never properly presented to the voters and that “there was no authority for holding the election, and it is, therefore, a nullity.” Phillips, 194 Ark. at 960, 110 S.W.2d at 34.
In Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), the preamble to the ordinance authorizing the election stated that the estimated cost of the power plant was $65,000; however, $65,000 was actually the amount that could legally be raised through the sale of bonds. The cost of the plant was in excess of the $65,000 stated in the preamble. Further, the ballot title was interpreted by the court to mean that the plant would be constructed for the sum raised by the bonds. Use of funds other than the bond funds to construct the plant constituted an illegal exaction.
A cause of action alleging that an election is a nullity because the election was illegally held is not an election contest under section 7-5-801 or under school elections section 6-14-116. DPBS argues that the election was not legally held, and that it is a nullity due to misrepresentations regarding the increase in taxation that were made by the School District. DPBS thus alleges that the election itself was illegal. It does not contest the results of the election. Therefore, DPBS attempted to plead a cause of action in illegal exaction, and the circuit court erred in dismissing the case under Ark. R. Civ. P. 12(b)(1) as an untimely election contest.
Ark. R. Civ. P. 12(b)(6)
In addition to alleging error under Ark. R. Civ. P. 12(b)(1), the School District argued that DPBS’s complaint fails to state a claim upon which relief can be granted. DPBS argues that the School District as a governmental entity voided the election by misrepresenting the amount of the tax increase that would result if the measure passed. DPBS acknowledges that this court’s precedent thus far has voided elections only where the voters were misled by representations in the title of the ordinance, the preamble to the ordinance, the body of the ordinance, the notice of the election, the ballot title, or the body of the proposition. This court has stated that “[i]t is to these sources just mentioned that the electors had the right to look to ascertain what they were asked to approve, and not discussions in the Council meetings, or street conversations, or to speeches made at a mass meeting which may or may not have been largely attended.” City of Rector, 214 Ark. at 654, 217 S.W.2d at 337. However, DPBS argues that the law concerning whether an election will be voided should be expanded to include the School District’s conduct in this case. This argument is based on the fact that the School District is the taxing authority seeking the tax increase, that the School District is a governmental entity, that the School District is the governmental entity “sponsoring” the tax increase, and because the voters may justifiably rely on the School District’s representations in making a decision on how to vote.
The question of whether representations by a taxing authority about a tax it seeks may act to void the election is an issue of first impression that has not been developed or decided below. We remand this case for a decision on whether the law on voiding elections should be extended beyond that set out in City of Rector, supra, and if so, whether any conduct alleged against the School District states a cause of action to void the election and make the tax illegal.
Fiduciary, Constructive Fraud, Unclean Hands
DPBS also argues that the election must be voided due to a breach of fiduciary duty by the School District, constructive fraud committed by the School District, and based on the unclean-hands doctrine. These issues were not decided below and will not be decided for the first time on appeal. Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001).
Reversed and remanded.
Corbin, J., dissents.
Glaze, J., not participating.
This court has stated that two types of illegal-exaction cases arise under article 16, section 13 of the Arkansas Constitution. White v. Arkansas Capital Corp., 365 Ark. 200, 226 S.W.3d 825 (2006). There are public fond cases where it is contended that public funds generated from tax dollars are being misapplied or illegally spent, and there are illegal-tax cases, where it is contended that the tax itself is illegal. Id. In the present case, DPBS alleges that an illegal tax is being imposed.
The issue was raised more recently in Williams v. City of Fayetteville, 348 Ark. 768, 76 S.W.3d 235 (2002); however, the wording in the ballot tide and documents in Williams did not limit funding as was the case in Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949). We are also cited to McGhee v. Arkansas State Bd. of Collection Agencies, 360 Ark. 363, 201 S.W.3d 199 (2005); however, that case concerned alleged illegal exaction in the use of general funds by the Board in an alleged violation of an act of the General Assembly. It is not on point, ha. Alcoholic Beverage Control Division v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985), an election held in 1956 was at issue, and the Division argued that the action had to be brought within twenty days because it was an election contest. However, the issue of whether it was an election contest was not reached in Barnett. | [
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Per Curiam.
D. Scott Hickam, attorney for the Estate of Daniel D. Becker, moves this court to substitute counsel for the appellant and extend the time for filing appellant’s opening brief. On June 26, 2008, we appointed Daniel D. Becker to represent the appellant on appeal. Briefing was commenced, and the appellant’s brief was due August 5, 2008.
Mr. Hickam’s motion states that on July 15, 2008, Mr. Becker died. Accordingly, Mr. Hickam timely filed the instant motion on July 28, 2008. We grant the motion and appoint attorney John Ogles to represent the appellant. Our clerk is directed to set a new briefing schedule for the appeal.
Motion granted. | [
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Paul E. Danielson, Justice.
Appellant Richard Brown appeals his conviction for first-degree murder and his sentence of life imprisonment plus an additional five years for the use of a firearm. He asserts two points on appeal: (1) that the circuit court erred in denying his directed-verdict motion because the evidence was insufficient to prove the requisite intent to sustain the conviction; and (2) that the sentence imposed by the jury is unconstitutionally disproportionate to the facts established at trial. We affirm Brown’s convictions and sentence.
The record reveals the following facts. On April 18, 2006, in Shannon Hills, Arkansas, Cody Brown, Brown’s son, had been working with Raymond Lowe Jr., the victim in this case, to repair a truck belonging to Michael Franks, a friend of the Brown family. Cody Brown and Lowe went together to retrieve Franks’s keys for his truck. At the time, Franks was at the Browns’ home. As they pulled into the driveway, Cody Brown saw his father walking toward their house. Lowe approached Franks, who was sitting outside in a chair, to get his keys. Cody Brown did not see any initial confrontation between Lowe and Franks and began to listen to the radio while he waited on Lowe to return to the vehicle. Franks testified that, indeed, there had not been a confrontation between himself and Lowe. Franks did testify that Lowe had been “razzing” him to get the keys, but Franks would not turn over the keys. According to Franks, Lowe pushed him out of his chair a few times, but that it was a form of giving him a hard time and Franks was not afraid of Lowe, nor did he believe it was escalating into a fight. Shortly thereafter, Cody Brown and Franks heard gunfire. Cody Brown then saw Lowe lying on the ground and his father standing on the porch with his shotgun.
Brown was tried for Lowe’s murder on August 28, 2007, and found guilty by a jury of first-degree murder. He was sentenced to life imprisonment plus an additional five years for the use of a firearm. Brown filed a timely notice of appeal on September 14, 2007. Neither of Brown’s arguments on appeal were preserved for our review and, therefore, we affirm.
Arkansas Code Annotated section 5-10-102 states in pertinent part that:
(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit a felony; and
(B) In the course of and in the furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life;
(2) With a purpose of causing the death of another person, the person causes the death of another person; or
(3) The person knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed.
Ark. Code Ann. § 5-10-102(a) (Repl. 2006).
Brown first argues that there was insufficient evidence introduced by the State at trial to prove the requisite intent to sustain a conviction of first-degree murder. The requisite intent for first-degree murder is purposefully. See id. § 5-10-102(a)(2). However, we decline to reach this issue of sufficiency of the evidence because it is not preserved for our review. A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at both the conclusion of the State’s case and at the conclusion of all of the evidence. See Ark. R. Crim. P. 33.1 (2007); Maxwell v. State, 373 Ark. 553, 285 S.W.3d 195 (2008). Rule 33.1 provides, in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Ark. R. Crim. P. 33.1(a), (c) (2007).
The rationale behind this rule is that “when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005). Without a ruling from the circuit court on a specific motion, there is nothing for this court to review. See Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004).
In the instant case, counsel for Brown failed to make a specific motion regarding lack of evidence to prove the requisite intent. His motion asserted only that “no evidence [was] adduced that [Brown] could have retreated from the situation” and that the evidence did not provide proof beyond a reasonable doubt as to where Brown fired the shot from. No argument was presented to illustrate a lack of evidence as to Brown’s purposeful intent. Accordingly, his sufficiency argument is not preserved for our review.
We are mindful of the fact that Brown was sentenced to life imprisonment and that this court is required to review all motions made for potential reversible error under Arkansas Supreme Court Rule 4-3 (h). Nevertheless, this court has held in the past that failure to make the motions for directed verdict with specificity regarding the sufficiency issue on appeal equates to the motion never having been made. See Maxwell, supra (citing Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997)). Rule 4-3(h), as a result, does not mandate review of the point regarding requisite intent when the directed-verdict motion was not properly made. See Tillman, 364 Ark. at 147, 217 S.W.3d at 775.
Brown’s second argument on appeal is that his sentence is disproportionate to the facts established at trial and, therefore, violates the Arkansas Constitution’s prohibition against the infliction of cruel and unusual punishment. However, this argument is also not preserved for our review. Brown failed to present an objection to his sentence to the circuit court. A defendant who makes no objection at the time the sentence is imposed has no standing to complain of it. See Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). Even constitutional arguments will not be addressed when raised for the first time on appeal. See Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007). Therefore, we decline to address this point and affirm.
Pursuant to Arkansas Supreme Court Rule 4-3 (h), a review of the record has been made for reversible error, and none has been found.
Affirmed.
Glaze, J., not participating. | [
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Donald L. Corbin, Justice.
Appellant James E. Evans, Jr., appeals the order of the Washington County Circuit Court transferring a suit for the recovery of attorney’s fees filed in that court to the Jefferson County Circuit Court. On appeal, Evans argues that the trial court erred in ruling that (1) the objection to venue was not waived, and (2) he was required to obtain the permission of the Jefferson County Circuit Court to proceed against Appellee Metropolitan National Bank in Washington County.
The record reflects that the present case stems from litigation that arose in the Jefferson County Circuit Court regarding matters involving two trusts, the Samuel Wirt Blankenship, Jr., Revocable Living Trust, and the Julia Cooke Blankenship Revocable Living Trust (hereinafter “the Trusts”). Because of Judith Cooke Blankenship’s decision declining to serve as Trustee of either Trust, Jo Ann Blankenship, Judith Overton, and Bob Blankenship were appointed as successor trustees. Thereafter, Jo Ann, Judith, and Julia met with Evans about a possible cause of action against Bob Blankenship and Goat Shed Farms, Inc. Evans ultimately filed suit against Blankenship and his corporation in Jefferson County Circuit Court. As a result of the Jefferson County litigation, Metropolitan was appointed as receiver of the property held in the Trusts.
On January 17, 2007, Evans filed suit in Washington County Circuit Court to recover attorney’s fees in the amount of $223,051.70 that he claimed were owed to him as a result of his representation of the Trusts. Metropolitan filed a motion to dismiss, alleging that venue was improper in Washington County and arguing that Evans should have petitioned the Jefferson County Circuit Court, as it was the court that appointed Metropolitan as receiver.
Jo Ann filed an answer, motion to dismiss, and counterclaim on February 27, 2007. Therein, she asserted several affirmative defenses and moved for dismissal of Evans’s claim, pursuant to Ark. R. Civ. P. 12(b)(6), for failure to state facts upon which relief could be granted. Jo Ann also adopted Metropolitan’s motion to dismiss based on improper venue. In addition, Jo Ann filed a counterclaim against Evans alleging claims of negligence, breach of fiduciary duty, and breach of contract related to Evans’s representation of the Trusts in the Jefferson County proceeding.
Following Evans’s filing of his suit, Michael and Judith Overton filed a cross-claim against Metropolitan and Jo Ann, seeking to recover funds they claimed to have advanced to the Trusts prior to Metropolitan’s appointment as receiver.
A hearing on Metropolitan’s motion to dismiss was held on April 12, 2007. Metropolitan argued that Washington County was the improper venue where the Jefferson County Circuit Court had appointed it as the receiver. Evans countered that venue was proper in Washington County and that he was not required to obtain the Jefferson County Circuit Court’s permission before proceeding with his cause of action. At the conclusion of the hearing, the trial court announced from the bench that it was necessary for Evans to obtain approval from Jefferson County to proceed and that it would take Metropolitan’s motion to dismiss under advisement. A written order was subsequently entered of record on April 23, 2007, reflecting the trial court’s oral ruling, as well as denying Jo Ann’s motion to dismiss filed pursuant to Rule 12(b)(6).
Thereafter, the Jefferson County Circuit Court refused to grant Evans permission to proceed against Metropolitan in Washington County. A second hearing on Metropolitan’s motion to dismiss was heard on October 4, 2007. Metropolitan again argued that because the Jefferson County Circuit Court had appointed it as receiver, it must consent to the litigation. Evans announced that his argument regarding venue had changed slightly. In addition to arguing that it was unnecessary for the Jefferson County Circuit Court to grant permission to proceed, Evans also argued that Metropolitan had waived its venue argument by failing to raise the defense under Rule 12(b)(3) in its answer to the Overtons’ cross-complaint. At the conclusion of the hearing, the trial court announced that it was transferring the case to the circuit court in Jefferson County. The trial court then entered an order on December 13, 2007, granting Metropolitan’s motion. This appeal followed.
As a threshold matter, this court must determine whether the present appeal is properly before us. A review of the record reveals that the order appealed from is not a final, appealable order pursuant to Ark. R. App. P. — Civ. 2(a). Although the present matter is not a proper interlocutory appeal, Evans asserts that we may still address the merits of his appeal by treating it as a petition for writ of prohibition or certiorari. This court may address an allegation of improper venue by means of an extraordinary writ, see, e.g., Premium Aircraft Parts, LLC v. Circuit Court of Carroll County, 347 Ark. 977, 69 S.W.3d 849 (2002); here, however, Evans has failed to demonstrate that he is entitled to such a writ.
According to Evans and the Overtons, the trial court was without authority to transfer this case to Jefferson County because Metropolitan waived the defense of improper venue. Specifically, they argue that Metropolitan waived the venue issue when it filed an answer to the cross-complaint filed by the Overtons and such a waiver inured to the benefit of all parties and, as a result, this court should either issue a writ of prohibition preventing the Washington County Circuit Court from transferring the case or issue a writ of certiorari, directing that Washington County is the proper venue.
Prohibition is an extraordinary writ that is appropriate only when the trial court is wholly without jurisdiction. Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. However, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id.
Evans and the Overtons contend that prohibition is warranted in this case because there is no other remedy, such as an appeal, available and that prohibition is the proper method to obtain review of the issue of the trial court’s jurisdiction. Citing to Premium, 347 Ark. 977, 69 S.W.3d 849 (2002), Evans asserts that this court will grant a writ of prohibition on an issue of improper venue where there are no disputed facts regarding venue. In Centerpoint Energy, Inc. v. Miller County Circuit Court, 372 Ark. 343, 276 S.W.3d 231 (2008), we recently discussed the issuance of a writ of prohibition in a matter alleging improper venue. There, we stated:
The purpose of a writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. As stated earlier, a writ of prohibition is extraordinary relief that is only appropriate when the trial court is wholly without jurisdiction. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised. Venue has thus often been characterized as procedural rather than jurisdictional. However, even though procedural, this court has a long history of granting the writ when venue is improper as to a party. This is so because this court characterizes the venue issue as one of jurisdiction over the person, the improper assertion of which in that instance, justifies issuance of the writ. Where the issue of the writ of prohibition alleges improper venue, this court will grant the writ only when there are no disputed facts regarding venue. Furthermore, we will look only to the pleadings to determine if a complaint lacks sufficient facts to support venue, and we ascertain the character of the action and the primary right asserted from the face of the complaint.
Id. at 354, 276 S.W.3d at 239-40 (citations omitted).
The holding in Centerpoint, as well as the holding in Premium, does not support Evans’s contention that he is entitled to a writ of prohibition in the instant .case. Both Centerpoint and Premium involved situations where the trial court improperly retained jurisdiction where venue was not proper in the respective courts. Thus, the courts’ lack of jurisdiction over the persons warranted issuance of the writs of prohibition. Here, however, the trial court determined that it did not have jurisdiction because venue was proper in Jefferson County and therefore transferred the case to that county. A trial court has the authority to transfer a case when venue is proper in another court. See Ark. R. Civ. P. 12(h)(3). Moreover, the trial court’s order transferring the case because of improper venue may be appealed once a final, appeal-able order is issued. See, e.g., Gailey v. Allstate Ins. Co., 362 Ark. 568, 210 S.W.3d 40 (2005). Accordingly, there is no merit to the assertion that a writ of prohibition is warranted.
Likewise, Evans is not entitled to a writ of certiorari. A writ of certiorari is a remedy used to quash irregular proceedings. Lenser v. McGowan, 358 Ark. 423, 191 S.W.3d 506 (2004). Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. Id. Certiorari is available in the exercise of this court’s superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Id. However, certiorari may not be used to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority. Id. Certiorari is appropriate where a party claims that a lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467 (2003). As previously stated, the trial court had discretion to transfer this cause to the Jefferson County Circuit Court. In so doing, the circuit court was not proceeding illegally, and a writ of certiorari will not lie.
Petition for writ of prohibition or, alternatively, certiorari denied.
Julia Cooke Blankenship died on July 26,2002. | [
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] |
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