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John Mauzy Pittman, Judge.
The appellees brought an action against the appellants alleging that appellants committed the torts of deceit and interference with a business expectancy during the purported purchase of appellees’ business by the appellant, Don Davis. After a jury trial, a verdict was returned in favor of appellees on the issue of deceit, and a judgment was entered assessing damages in the amount of $60,000 against appellant Don Davis and in the amount of $65,000 against appellant Vera Stine. The $65,000 assessed against appellant Vera Stine included $5,000 in punitive damages. From that decision, comes this appeal.
For reversal, appellants contend that the evidence is insufficient to support the jury’s finding of deceit; that the evidence is insufficient to support the punitive damage award against appellant Vera Stine; and that the trial court erred in denying appellants’ motion for a new trial. We affirm.
We first address appellants’ contention that the evidence is insufficient to support the jury’s finding of deceit. The tort of deceit consists of five elements that must be proven by a preponderance of the evidence: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in rebanee upon the representation; (4) justifiable rebanee on the representation; and (5) damage suffered as a result of the rebanee. Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994). Our standard in reviewing the sufficiency of the evidence is web settled: (1) the evidence is viewed in a bght most favorable to the appehee; (2) the jury’s finding wih be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the fact-finder past speculation and conjecture. Medlock v. Burden, 321 Ark. 269, 900 S.W.2d 552 (1995). In cases of deceit, the credibihty of the witnesses is vital in determining liability, and the trier of fact is the sole judge of the weight and credibihty of the evidence. Id.
Viewing the evidence, as we must, in the light most favorable to the appellees, the record shows that appellees are the owners of a security business, Sanders Security and Detective Corporation. They sought to sell their business in October 1994, and advertised the business for sale for an asking price of $200,000 in newspapers in Little Rock and Dallas. Appellant Don Davis saw one of the advertisements and contacted appellees regarding purchase of the business. Mr. Davis met with Mr. Sanders and discussed various aspects of the business. Appellant Vera Stine, who was employed by appellees as manager of their business, provided Mr. Davis with an informational packet listing some of the clients of the business and the income derived from those clients. She also, in furtherance of the prospective sale of the business, took Mr. Davis to several business clients of Sanders Security. Mr. Davis met with appellees’ attorney and was provided with information regarding the tax debt of the business, tax returns, and additional financial documents. Mr. Davis then met with Mr. Sanders at the offices of Sanders Security on November 4, 1994. Mr. Davis and Mr. Sanders reached an oral agreement for the sale of the business for $120,000, and Mr. Davis agreed to provide a check for the purchase price from his accountant the next week. However, although Mr. Davis never canceled the agreement, no check was ever provided. At about this same time, Ms. Stine quit her job as manager of Sanders Security following an argument with Mrs. Sanders. Her last day of work for Sanders Security was November 7, 1994. Although Ms. Stine told appellees that she was going to work for University Mall, she did not do so. Unbeknownst to appellees, she began a romantic involvement with Mr. Davis that culminated in their engagement to be married. Ms. Stine obtained her own security license on November 9, 1994, and, together with Mr. Davis, formed a rival security business, Interstate Security and Investigations.
The rival business was staffed with former employees of Sanders Security who were induced to defect by appellants. Where Sanders Security had sixty-five employees when Mr. Davis agreed to purchase the business, one month later Sanders Security had only five remaining employees, the rest having gone to work for appellants at Interstate Security. Such defections would normally have been impossible, because it was standard practice for Sanders Security to have its employees execute an agreement not to work for competing firms. However, the records of these agreements were missing. The office secretary for Sanders Security, Cora Maglero, continued to work for Sanders until November 14, 1994. She gave appellees no notice of her intent to quit her job. On Ms. Maglero’s last day of work, a housekeeping employee saw her printing a great many documents from the office computer, although she had not been asked to print out anything. She told the housekeeping employee that she had to get the documents off the computer before she left, and was seen taking the documents out and placing them in the back seat of her red convertible. Ms. Maglero then returned to the office and continued to work on the computer. Later that day, the housekeeping employee saw Ms. Maglero’s auto parked at Ms. Stine’s house, and she continued to see Ms. Maglero’s car parked there every day, morning and night. Ms. Maglero admitted that she went to work for Ms. Stine. Following Ms. Maglero’s departure from Sanders Security, it was discovered that the business data on the company computer had been completely deleted: Diagnostic tests showed that an enormous amount of printing had been done on the days immediately preceding Ms. Maglero’s departure, and that the business information had been deleted on Ms. Maglero’s last day of work.
Staffed with appellees’ employees, appellants’ rival company soon obtained appellees’ clients as well. Anthony Timberlands, Turf Catering, Oaklawn Jockey Club, Nickle Molding, and Lauray’s Jewelers canceled their contracts with appellees shortly after the date of the sale agreement and obtained security service from the rival company. Several of these firms had been clients of the appellees for twenty years. Several of the firms canceled their contracts with appellees upon learning that appellees’ workers’ compensation insurance coverage had lapsed. Ms. Stine was responsible for maintaining workers’ compensation insurance for appellees’ business, and had been contacted by the insurance agent regarding the problem, yet Ms. Stine neither reinstated the coverage nor informed appellees about the problem.
After Ms. Stine’s departure, appellees learned about the problem from clients calling to cancel their contracts with Sanders on the grounds that Sanders was in breach for failure to maintain workers’ compensation insurance. Telephone records showed that Ms. Stine telephoned many of these clients from her home within one week of the date of the agreement.
In arguing that the evidence is insufficient to support a finding of deceit, appellants list the actions of Mr. Davis and Ms. Stine separately and urge us to reverse because the evidence does not show that either appellant committed all the acts that would satisfy all five elements of deceit. We do not agree. It is not necessary for a single person to perform all the acts constituting fraud where two persons participate in a fraudulent scheme. Each party to a fraudulent transaction is responsible for the acts of others in furtherance of the fraudulent scheme, and all who participate are hable for the fraud. 37 C.J.S. Fraud § 83 (1997); see, e.g., Medlock v. Burden, 321 Ark. 269, 900 S.W.2d 552 (1995); Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989).
Appellants also contend that there is no substantial evidence to show that Mr. Davis agreed to purchase the business. However, Mr. Sanders clearly testified that, after investigation and negotiation, Mr. Davis agreed to purchase the business for $120,000. Mr. Sanders’s credibility was a question within the sole province of the jury, see Medlock v. Burden, supra, and, having been found to be credible, his testimony constitutes substantial evidence that an agreement was reached.
Appellants further contend that an agreement to purchase the business was not the sort of misrepresentation for which deceit will lie because it was not a misrepresentation of a present fact, but was instead merely a promise to do something in the future. Although it is true that, as a general rule, a promise of future conduct may not form the basis for a claim of fraud or deceit, Golden Tee, Inc. v. Venture Golf Schools, Inc., 333 Ark. 253, 969 S.W.2d 625 (1998), this rule will not apply if the party mak ing the false promise knew at the time it was made that it would not be kept. Undem v. First National Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). The intent of the promisor in this regard is a question of fact. Id. We think that the evidence in this case, including the evidence that Mr. Davis agreed to purchase the business on November 4; that, without notifying the appellees, he formed a rival business with appellees’ employees and clients on November 9; that appellees’ business records were wrongfully taken to further the formation of the rival business and wrongfully destroyed to hinder appellees from taking timely corrective measures; and that Mr. Davis subsequently denied making the agreement — a denial that the jury found to be false — was sufficient evidence to permit the jury to find that Mr. Davis did not intend to purchase the business when he promised to do so.
Appellants next contend that, in the absence of a written agreement, appellees had no right to rely on Mr. Davis’s promise to purchase the business. There are no Arkansas cases on point, and there is a division of authority on the question of whether the statute of frauds will bar an action for fraud even though the promise underlying the fraud is itself unenforceable under the statute. See generally 37 C.J.S. Statute of Frauds § 140 (1997). We think that the better rule, however, is that the statute of frauds does not abrogate the common-law remedy for fraud merely because the fraudulent misrepresentation was not in writing. See, e.g., Hanson v. American National Bank & Trust Co., 865 S.W.2d 302 (Ky. 1993). This view is the logical corollary of the rule, which has long been the law in this state, that fraud may be predicated on promises made with the intent not to perform them. In both cases, the gist of the fraud is not the breach of the agreement to perform, but is instead the fraudulent intention and representation of the promissor. See Pierce v. Sicard, 176 Ark. 511, 3 S.W.2d 337 (1928). Arkansas courts have consistently held that the statute of frauds is designed to prevent fraud, not shield or effectuate it, Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976), so that the statute will not be allowed to be an instrument of fraud either in permitting one guilty of fraud to shelter himself behind it or in allowing its use as a means of perpetrating fraud. Bolin v. Drainage District No. 17, 206 Ark. 459, 176 S.W.2d 143 (1944).
The action in the present case was not one to enforce the agreement, but is instead based upon.facts that grew out of the making of the agreement, and proof of the oral agreement was offered only to show that a fraudulent representation had been made. To interpret the statute of frauds as barring an action for damages resulting from such a fraudulent representation would be to allow the statute to be used as an instrument of fraud. See Nanos v. Harrison, 97 Conn. 529, 117 A. 803 (1922).
Appellants further contend that there is no evidence that appellees actually relied upon any misrepresentation. In this context it is important to note that there was evidence of two deceptions practiced on appellees: Mr. Davis’s representation that he would buy the business, and Ms. Stine’s concealment of material facts surrounding the sale. Nondisclosure of material facts may be a basis of recovery for fraud where there is rebanee on the failure to disclose those facts. Copelin v. Corter, 291 Ark. 218, 724 S.W.2d 146 (1987). In the case at bar, Mr. Sanders testified that he believed Mr. Davis’s representation that he would buy the business, and we think that the jury could infer that Mr. Sanders bebeved that the business was in a brief transition period while he awaited the payment that Mr. Davis promised to bring. There was also evidence that Ms. Stine remained employed by appebees during this period. Ms. Stine, who as manager of Sanders Security controbed virtuahy every aspect of the business, owed appebees a fiduciary duty, Tandy Corporation v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), and we think that, on this record, the jury could properly infer that appebees rebed on Ms. Stine to continue to act in good faith towards them and to disclose any facts within her knowledge that were detrimental to their business during the period leading up to the sale and the brief transition period thereafter. We find no error on this point.
Next, appellants contend that appellees suffered no damage as the result of their reliance on any misrepresentations. They argue that this is demonstrated by the fact that appellees were owners of Sanders Security at the time of the purported sale, and that appellees continue to be owners of Sanders Security to the present day. This argument is somewhat disingenuous, for it ignores the evidence that Mr. Davis, having agreed to purchase Sanders Security, failed to do so but nevertheless obtained the profit-making aspects of that business, i.e., its clients, business records, and employees. We think that the evidence supports a finding that this was achieved by the concerted efforts of appellants to induce Mr. Sanders to believe he had sold the business, a belief that helped distract attention from the loss of key employees and the depredations practiced by Ms. Stine in obtaining the clients, business records, and employees of the business — depredations that were largely accomplished during the brief but crucial period immediately following Mr. Davis’s representation that he would purchase the business. We think that the record also contains substantial evidence to show that Ms. Stine, while employed in a fiduciary capacity, undermined the business by failing to pay the workers’ compensation premiums or inform her employers of the problem, and that her concealment of this incident led to breaches of Sanders Security’s agreements with its clients and the resultant termination of those contracts. We also think that the evidence that Ms. Maglero went directly to Ms. Stine’s home with a large stack of documents printed on Ms. Maglero’s unannounced last day of work for Sanders Security, together with the evidence that Ms. Maglero thereafter went to work for Ms. Stine’s rival company, supports an inference that Ms. Stine and Ms. Maglero worked in concert to wrongfully remove and destroy business records belonging to their former employer. Finally, we think that there is substantial evidence to show that the removal and destruction of these business records made it impossible for appellees to prevent the defection of its employees and severely handicapped the company in competing with appellants’ rival firm thereafter. Appellants also argue that appellees were not damaged by their misrepresentations because appellees’ business was in such serious financial difficulty that it was, in any event, bound to fail. However, it is not necessary that the misrepresentation be the sole cause of the injury:
It has been held that although the fraud does not cause substantial damage apart from the happening of subsequent events which reasonably may be expected to happen, if these do happen the defendant is chargeable with the natural consequences of his act. In such case, he cannot complain that these supposed facts followed as conditions concurring with his fraud to cause the damage, if his fraud was planned in reference to the probability that these events would follow. . . . Fraudulent representations or misrepresentations need not be the sole cause of loss in order to be actionable; it is sufficient if they are a material inducement or an essential, material, or inducing cause.
37 Am. Jur. 2d Fraud and Deceit § 293 (1968). On this record, we cannot say that the jury could not have found that appellees were damaged by appellants’ misrepresentations, and we hold that there was sufficient evidence to support the jury’s finding for deceit against appellants.
Appellants next contend that the trial court erred in denying their motion for a new trial on the ground that the verdict was contrary to the preponderance of the evidence. The test on appeal from the denial of a motion for a new trial is whether the verdict is supported by substantial evidence. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993). In light of our holding that there was sufficient evidence to support the jury’s verdict, we find no error on this point.
Finally, appellants assert that there was insufficient evidence to support the jury’s verdict of $5,000.00 in punitive damages against Ms. Stine. We disagree. Although in ordinary cases, recovery of exemplary damages will not be allowed in an action of deceit unless the wrong involves violation of a duty springing from a relation of trust and confidence, or the fraud is gross, or there are extraordinary or exceptional circumstances clearly indicating malice and willfulness, see Dodge v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972), there was evidence in this case that Ms. Stine stood in a relation of trust and confidence to the appellees. Furthermore, in law, malice is not necessarily personal hate, but is rather an intent and disposition to do a wrongful act greatly injurious to another, id., and we think the evidence supports a finding that Ms. Stine was motivated by such an intent in her dealings with appellees.
Affirmed.
Robbins, C.J., and Griffen, Stroud, and Meads, JJ., agree.
Bird, J., dissents.
Mr. Davis testified that he never offered to purchase appellant’s business. Mr. Sanders testified that Davis did make such an offer. This conflict in the testimony is the crux of this case. The jury believed Mr. Sanders. The dissenting judge does not, and the dissent is founded on the premise that no offer to purchase was made. This rejection of the jury’s credibility determination concerning the central issue in this case is contrary to a long line of authorities holding that, in cases of deceit, the credibility of the witnesses is all important in determining liability, Ellis v. Liter, 311 Ark. 35, 841 S.W.2d 155 (1992), and that in such cases the jury is the sole judge of the credibility of the witnesses and the weight and value of the testimony. Id; Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991). In cases of deceit, the resolution of conflicts in the testimony is fundamentally a function of the jury, especially where credibihty of the witnesses is involved, and the jury’s findings are usually conclusive. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). Although we respect the learned dissenting judge’s views regarding the credibihty of the witnesses and the weight to be given their testimony, we do not adopt them because the resolution of conflicts in the testimony is simply not within the province of the appellate court. Id.
The dissent is simply wrong in stating that there is no evidence that employees signed documents preventing them from going to work for competing security companies. After generally describing the nature of the documents, Mrs. Sanders testified that “[i]f we would have had the documents that had been taken from the files of the men, then they would not have been able to go to work for Interstate, but the documents were taken out of their files.” There was no objection to this testimony. Without a doubt, it would be preferable to examine the documents themselves in this instance but, in their absence, to refuse to credit Mrs. Sanders’s testimony regarding their contents would be to unjustly reward the parties who stole them.
Conceding that Ms. Maglero printed a large number of documents and removed them to her auto on her last day of work, the dissent nevertheless makes the somewhat puzzling assertion that there is no evidence that Ms. Maglero took any of the company’s missing employee records. Although it is true that no eyewitness could testify concerning exactly which documents were printed by Ms. Maglero and placed in her auto before she left work for the last time, it is clear that the employee records, including the vital noncompetition agreements, were missing; that Ms. Maglero had control of the computer at the time in question; that Ms. Maglero had not been asked to print anything; that an enormous amount of printing was nevertheless done; that Ms. Maglero was in a hurry to accomplish this printing before she left the office for the last time; that the printed documents were deposited in Ms. Maglero’s automobile; that this automobile was immediately thereafter seen parked at Ms. Stine’s house; and that Ms. Stine contemporaneously founded a rival business by which Ms. Maglero was employed. When considered in light of Ms. Maglero’s somewhat dubious explanation of her reason for her hasty departure from appellants’ employ, and of the evidence that the business records on the computer were subsequently found to have been completely deleted on Ms. Maglero’s final day of work, the evidence that Ms. Maglero took the missing employee records is compelling. Fraud and deceit are, by their nature, frequently accomplished in secret and, despite the dissent’s implication to the contrary, it is not necessary that fraud be shown by direct evidence or positive testimony. Pacini v. Haven, 194 Ark. 31, 105 S.W.2d 85 (1937). Circumstantial evidence can provide a basis for the jury to infer fraud where, as is manifestly the case here, the circumstances are inconsistent with honest intent. Id; Interstate Freeway Services, Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992).
It would, as the dissent observes, be speculative at best to suggest that Ms. Stine foresaw when she failed to inform appellants of the lapse of insurance coverage in August 1994 that Mr. Davis would arrive from Dallas two months later and offer to buy the business. We made no such suggestion. The fact remains, however, that Ms. Stine was employed as manager of appellants’ business, that as their agent she owed them the utmost good faith and loyalty, and that she was required at all times to make full disclosure of any facts damaging to her principals. Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983). We think this duty was a continuing one, and that Ms. Stine was as much obliged to report the ultimately disastrous lapse in coverage to her employers in October as she was in August. Furthermore, as manager in total control of appellants’ business, Ms. Stine owed appellants a fiduciary duty. See Tandy Corporation v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). The dissent would, in effect, set the concept of fiduciary duty on its head by holding that the great trust and confidence bestowed upon Ms. Stine by the appellants barred them from complaining of any subsequent breach of that trust.
Both Betnar and Bolin are, as the dissent notes at some length, distinguishable because the agreements in those cases were partially performed. This distinction is irrelevant in the present case because both Betnar and Bolin involved actions to enforce the agreement, whereas the action in the present case was not to enforce the agreement, but to recover damages resulting from the fraudulent misrepresentation itself. In the context of this case, Betnar and Bolin are significant only as statements of the general proposition that the statute of frauds will not be allowed to be used as an instrument of fraud. | [
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Olly Neal, Judge.
Arthur and Renita Cotton-Johnson, both practicing physicians, were divorced by a decree entered on July 9, 2003. The decree, in relevant part, established Arthur’s annual income for child-support purposes, divided certain accounts receivable as marital property, awarded alimony to Renita, and ordered Arthur , to reimburse Renita for one-half of the money that he spent on gifts to other women during the marriage. Arthur contends that the trial court erred in its resolution of each of the above matters. We affirm but with modifications that we will explain hereafter.
Calculation of Income for Child-Support Purposes
The trial court ordered Arthur to pay $9,413 per month as child support for the couple’s two minor sons, of whom Renita had custody. The order was based on a trial exhibit, prepared by Renita’s expert, CPA Cheryl Shuffield, that calculated Arthur’s annual income as $894,433. Arthur argues that the computation of his income was erroneous. We disagree.
Arthur has been a neurosurgeon with the River Valley Musculoskeletal Center (hereafter “the Clinic”) since August 2001. He joined the Clinic after leaving his previous employment at Sparks Regional Medical Center. Clinic administrator Edward Hickman testified that the Clinic pays Arthur monthly in an amount that varies, depending on Arthur’s collected billings. To explain the payment system in the simplest manner possible, from the collection of fees attributable to Arthur, amounts are deducted for a percentage of the Clinic’s overhead expenses and Arthur’s individual expenses. The net result is paid to Arthur as though he were an employee, with federal and state tax, FICA, and Medicare withheld. Arthur receives a W-2 from the Clinic each year reflecting his salary and showing the amount of federal tax, FICA, Medicare, and state tax withheld.
In 2001, Arthur’s gross yearly salary was $1,056,906, which included his income from Sparks Regional Medical Center before leaving there; income from the Clinic after having joined the Clinic; and “tail” income that he continued to receive from Sparks Regional Medical Center after leaving his employment there. In 2002, his gross salary, which was totally attributable to the Clinic, was $830,499. His 2003 earnings, which were only a few months old at the time of the May 2003 divorce hearing, were annualized by Cheryl Shuffield to project a 2003 salary of $729,346. Shuffield averaged Arthur’s annual earnings for 2001, 2002, and 2003, along with other outside income, to establish Arthur’s gross annual income for child-support purposes as $894,433. The trial court adopted the $894,433 figure and ordered Arthur to pay $9,413 per month as child support, based on the family support chart percentage for payors whose income exceeds chart amounts.
Arthur’s first argument is that, by averaging his income over a three-year period, the trial court erroneously treated him as a self-employed payor rather than an employee whose income should be calculated based on his current earnings. Child-support cases are reviewed de novo on the record. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. Id.
It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002), provides that all orders granting child support shall contain the court’s determination of the payor’s income. See Order No. 10, Section I. Section II of Order No. 10 defines income as:
any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest, less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.
Section III(c) of the Order contains special provisions for calculating the income of “nonsalaried payors,” such as disability and unemployment-compensation recipients, members of the military, commissioned workers, or the self-employed. The provision regarding self-employed workers states in pertinent part: “For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year.”
In calculating Arthur’s income, the trial court determined that Arthur was in essence self-employed. The court cited such indicia of self-employment as the fact that Arthur’s paycheck varied from month to month and that, rather than being paid immediately upon starting work at the Clinic, Arthur received no income when he first began working there in order to allow his collections to begin accumulating. The court also observed that Administrative Order No. 10 distinguishes not so much between employees and self-employed payors as between payors whose income is steady and those whose income varies.
We believe that the trial court’s reasoning is correct and falls in line with our recent decision in Delacey v. Delacey, supra, which involved a physician who was compensated under a formula similar to the one in this case. In Delacey, we noted that, although Order No. 10 does not address the situation of a non-self-employed payor whose earnings fluctuate from month to month, in the case of such a payor, his income should be calculated by averaging his earnings over a period of time to give an accurate picture of his income for child-support purposes. Therefore, even if Arthur is considered an employee rather than self-employed, his income should be calculated based on an average over a period of time, given the variable nature of his earnings. Thus, the trial court did not abuse its discretion by employing an averaging method in this case.
Arthur argues further that his 2001 earnings of $1,056 million should not have been considered in calculating his income because, in 2003, he projected earnings of approximately $250,000 less than his 2001 income. He further argues that his income from 2001 was inflated because, for a period of time, he was receiving income from both the Clinic and from Sparks Regional Medical Center.
Even though Arthur’s 2001 income was much greater than his projected 2003 income, that disparity is taken into account by the very nature of the averaging method. Arthur’s ultimate income of $894,433, as calculated by the court, is an average of the higher-earning years of 2001 and 2002 and the lower-earning year of 2003. As for whether the 2001 income was atypical, the evidence showed that, for a period of time in 2001, Arthur was indeed receiving income from both his old employer, Sparks, and his new employer, the Clinic. However, the evidence also showed that, when Arthur first began working for the Clinic, he did not receive a paycheck for three months. Therefore, the 2001 income figure is not quite so inflated as it would initially appear.
Finally on this point, Arthur appears to argue that the trial court should have reduced the child-support award and given him credit for the fact that he has procured a $1.2 million life insurance policy with his children as beneficiaries and that he contributes $1,833 per month to an educational fund for the two boys. The trial court addressed this argument as follows:
The court is appreciative of [Arthur] taking seriously his responsibility to his children, and it is certainly aware that he is not legally obligated to pay for the life insurance or to pay for the education fund. However, [Arthur] is a fortunate man in that through his hard work, expertise, and the backing of [Renita] he has become quite wealthy. The court is convinced that [Arthur] is capable financially of doing what the court has ordered him to do while at the same time being able to do additional things of his choosing for the children and still have enough left over for a very comfortable lifestyle for himself.
The court’s decision is not a abuse of discretion. There is a rebuttable presumption that the amount contained in the family-support chart is the correct amount to be awarded. See Ark. Code Ann. § 9-12-312(a)(2) (Repl. 2002); see also Administrative Order No. 10, supra, Section I. However, a court is not precluded from adjusting the amount of child support if warranted by the facts of a particular case. See Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997); McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996). Section V of Order No. 10 deals with “Deviation Considerations.” Among the factors that “may warrant adjustment to the child support obligation” are the procurement or maintenance of life insurance and the creation or maintenance of a trust fund for the children. The use of the word “may” indicates that such an adjustment is discretionary. The trial court in this case thoughtfully considered Arthur’s request for a deviation and correctly pointed out that Arthur could easily afford to make provisions for his children above and beyond the chart amount, if he chose to do so. See generally Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).
In light of the foregoing, we affirm the trial court’s calculation of Arthur’s income for child-support purposes.
Accounts Receivable as Marital Property
This issue concerns Renita’s entitlement to a portion of the accounts receivable attributable to Arthur’s production at the Clinic. The record shows that, as of March 31, 2003, Arthur had work in progress of $58,800 and had billed $527,136 that was not yet collected, for total accounts receivable of $585,936. There was historically a forty-percent collection rate on Arthur’s accounts, so when $585,936 was reduced accordingly and Arthur’s income taxes were deducted, $128,906 remained. After assessment of a fifteen-percent collection fee, the value of the accounts was $109,570. Based on the above calculations, CPA Cheryl Shuffield valued the accounts receivable at $109,570, and Renita was awarded one-half that amount, or $54,785, as a division of marital property. Arthur argues that the accounts were not marital property because the accounts did not belong to him but to the Clinic. We disagree, but we modify the value placed on the accounts.
We review a trial judge’s division of property in a divorce case under the clearly erroneous standard. Cole v. Cole, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See id. When the evidence in a case is conflicting or evenly poised or nearly so, the judgment of the trial court is persuasive. Henslee v. Ratliff, 66 Ark. App. 109, 989 S.W.2d 161 (1999). Accounts receivable are an asset subject to division upon divorce, with their net present value to be divided between the spouses. See Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986).
The question on appeal is whether the accounts were owned by Arthur or by the Clinic. There was no written employment contract or other agreement between Arthur and the Clinic that fixed the ownership of accounts receivable. Further, there was no provision in the Clinic’s bylaws that addressed ownership of accounts receivable. So, this dispute must be resolved by the oral testimony adduced at trial. There was evidence on both sides of the question. Arthur testified that he was not a shareholder in the Clinic and did not own an interest in the accounts receivable. Edward Hickman, the Clinic’s administrator, testified that, in his opinion, Arthur had no ownership interest in the receivables, either as an individual or as a shareholder of the Clinic. Hickman stated that the Clinic owned the accounts receivable and offered as proof the fact that the Clinic had pledged the accounts as security on a note. He further stated that the Clinic’s bylaws required a physician to be with the Clinic for two years before becoming a shareholder and that, at the time of the May 2003 hearing, Arthur had been with the Clinic for only one year and ten months.
On the other side of the issue, Hickman testified that the Clinic hoped that Arthur would continue his association with it. He further confirmed that Arthur had signed as a guarantor on the Clinic’s $2.7 million loan to purchase a new facility and that Arthur had invested over $100,000 of his own money in the new facility. Hickman also acknowledged that there were no rules as to whether or not Arthur would be entitled to his accounts receivable. Finally, he acknowledged that he had once described the Clinic as owning no assets and as a “pass-through” entity. Arthur admitted that he had submitted financial statements to banks in which he listed the accounts receivable as his own assets. Further, there was testimony by both Hickman and Arthur that another clinic physician, who had not yet attained shareholder status, had left the Clinic and was allowed to keep his accounts receivable, less a fifteen-percent collection fee and conditioned upon payment of his share of the Clinic’s business loan.
The trial court ruled that it was “convinced [that Arthur’s] accounts receivable belonged to him rather than the clinic, and, as such, are marital property.” The court relied on the fact that Arthur represented the accounts as his own in the financial statements and that the Clinic allowed another physician to retain his accounts upon leaving the Clinic even though he had not been with the clinic for two years. The court also relied on the fact that Arthur would become a member of the clinic within two months of trial and that Arthur was already obligated to pay a share of the construction costs of a new clinic facility.
We cannot say that the trial court’s decision that the accounts were marital property was clearly erroneous in this case. Arthur apparently considered the accounts to be his own property because he made representations on financial statements that he owned the accounts. Further, another physician who had not been with the Clinic for two years was allowed to keep his accounts receivable upon leaving, which is some evidence that the Clinic considered its physicians as having an ownership interest in the accounts, even if they had not been with the Clinic long enough to become a shareholder. Additionally, Arthur acted and was being treated as though he were a shareholder because he was an obligor on a note to construct a new clinic facility. Moreover, Hickman described the Clinic as a pass-through entity with no assets, which is further indication that Arthur, rather than the Clinic, owned the accounts. In light of these considerations, the trial court did not clearly err in awarding Renita a share of the accounts receivable.
However, despite our agreement that the accounts were marital assets, we must modify the calculation of their value. Arthur points out that, when the departing physician left the Clinic and received a portion of his accounts receivable, he was required to pay his share of the Clinic’s business loan. Arthur argues that, because the other doctor was required to pay his share of the loan as a condition of acquiring the receivables, Arthur’s share of the loan should also be deducted to arrive at the accounts’ value. We agree that consistency would require this, and we consequently reduce the value of the accounts receivable by Arthur’s share of the loan — $32,900 — for a final value of $76,670. The award of accounts receivable to Renita is therefore modified to one-half of $76,670, or $38,335.
Alimony
The trial court awarded Renita alimony of $3,500 per month for seven years and $2,000 per month thereafter until she dies, remarries, or cohabits. Arthur argues that the award was in error.
The decision whether to award alimony lies within the trial judge’s sound discretion, and we will not reverse a trial judge’s decision to award alimony absent an abuse of that discretion. Cole v. Cole, supra. The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. In fixing the amount of alimony, the courts consider many factors, including: (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; (12) the amount of child support. Id.
In the case at bar, the trial court ruled that the alimony award would allow Renita to maintain a lifestyle fairly close to the one to which she had become accustomed and helped create; that it would be inequitable for Arthur to continue living his lifestyle but for Renita to be forced to accept a diminished lifestyle; that the parties were married for twenty-two years and started out with almost nothing; that Renita worked as hard in medical school as Arthur did but that they both made a decision for her career to be subordinated; that, when Arthur became associated with the Clinic, he began making almost a million dollars a year; that Renita played a vital part in Arthur achieving the means to afford the family’s present lifestyle; and that the amount of support would not unreasonably burden Arthur because he would still have $31,910 per month on which to live after alimony, taxes, and child support were paid.
Arthur argues first that Renita should not have been awarded alimony because she has the potential to earn $157,000 per year. He is referring to the fact that Renita has been working two days per week as a family-practice physician at the rate of $75 per hour and has been offered full-time employment. Renita testified that she would not accept full-time employment because it was important to her to stay home with her children.
In Delacey v. Delacey, supra, we considered a similar argument and held that no error occurred in awarding alimony because the wife “testified that she preferred to work part-time so that she could raise her children.” We also noted in that case that, even if the wife had been capable of earning the amount that the husband suggested, the husband’s earning potential would far exceed hers. Likewise, here, even if Renita were to earn gross wages of $157,000 per year, Arthur’s gross income would far exceed hers.
Arthur also argues that Renita’s monthly budget, which shows monthly expenses of $17,939, contains frivolous and excessive items. He complains that two' of the largest expenses on her list — the $6,000-per-month mortgage payment and $1,400-per-month utility payments — have been paid by him during the separation. While that may be true, the divorce decree placed responsibility for those expenses on Renita. Arthur also complains about Renita’s charitable gifts of $1,400 per month; however, his own expense sheet lists tithes of $3,000 per month. Further, Renita testified that tithing and charitable giving were things that the couple traditionally did. As for the other items on Renita’s list, it appears that some of them may be overstated but not to the extent that it would call the entire $3,500 alimony award into question, given the totality of the circumstances in this case.
Finally, Arthur asserts that the trial court’s finding that he is going to have $31,910 per month on which to live does not account for the fact that he will owe “$25,000 per month on marital debts.” However, Arthur mischaracterizes his situation. The trial exhibit to which he refers in his argument reflects Arthur as having $25,000 in monthly living expenses, only some of which includes debt payments. Further, the expense list includes the $6,000 mortgage payment on the marital home, for which Arthur is no longer responsible. We find no error on this point.
Given the overall circumstances in this case, and considering that our ruling on the accounts-receivable issue means that Renita will lose $16,450 in assets, we find no abuse of discretion in the alimony award.
Repayment of One-Half of Value of Gifts to Other Women
Prior to trial, the parties stipulated that, during the marriage, Arthur had spent $13,400 buying gifts for two women, Verna Bell and Angela Ward. The trial court found that Arthur gave a total of $14,020 in gifts and ordered him to reimburse Renita for one-half that amount. Arthur argues that this award was in error. We agree in part and modify the award accordingly.
The trial judge’s findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). We have upheld an unequal division of property when a spouse diverts marital assets to a paramour. In Williams v. Williams, supra, where the husband spent marital funds on other women after the parties separated, we upheld the trial court’s unequal division of the couple’s property and debts that took the husband’s gifts into account.
Here, we are asked not to uphold an unequal division of property but to uphold a direct reimbursement to the marital estate of funds that were spent for improper purposes. In the case of the gifts to one of the women, this distinction is meaningful. Arthur testified that his gifts to Verna, which totaled about $3,200, were given between October or November 1998 and May 1999 when he and Renita were separated. He said that he and Renita reconciled thereafter and that he discussed the gifts with her. There was no testimony by Renita to the contrary.
We hold that the reimbursement to Renita for one-half the value of these gifts was in error. At the time the complaint for divorce was filed in 2002, a significant period of time had passed since the 1998-99 gifts were made. Further, the parties reconciled after the gifts were made and, according to Arthur, he and Renita discussed the gifts at the time of reconciliation. While we certainly would not go so far as to say that Renita sanctioned the gifts or approved of Arthur’s behavior by reconciling with him, a reconciliation under these circumstances is tantamount to a forgiveness of the manner in which marital funds were spent during the separation, such that Renita should be precluded at a later time from seeking reimbursement of those funds to the marital estate. We therefore reduce the trial court’s award to Renita by $1,600, which is one-half of the $3,200 in gifts to Verna.
The same reasoning does not apply, however, to Arthur’s gifts to Angela. Those gifts were made in January 2002, just a few months before the divorce complaint was filed, and there was no evidence that Renita reconciled with Arthur while knowing of those gifts. We therefore conclude that the trial court’s award to Renita of one-half the value of the gifts to Angela was not clearly erroneous. See Williams v. Williams, supra. Arthur argues that one of his gifts to Angela resulted in a $3,300 charge on a Visa card and, because the divorce decree orders him to pay the Visa balance, he is paying twice for the gift. However, because the gift was made in April 2002, we have no way of knowing whether the card’s $14,199 balance as of the May 2003 trial still contained the gift amount or whether Arthur had reduced the balance or paid the gift off entirely. Therefore, we cannot say that the trial court clearly erred on this particular point.
Conclusion
Based on the foregoing, we affirm the trial court’s calculation of Arthur’s income for child-support purposes; affirm as modified the trial court’s finding that the accounts receivable were marital assets; affirm the alimony award; and affirm as modified the reimbursement to Renita of one-half of the value of gifts that Arthur made to other women.
Affirmed as modified.
Stroud, C.J., and Hart, Robbins, and Vaught, JJ., agree.
Baker, J., dissents in part.
Because both parties are “Dr. Johnson,” we will refer to them as Arthur and Renita for the sake of clarity.
As described by Hickman, Arthur “eats what he kills.”
The discrepancy in amount is not explained, but Arthur does not object to the $14,020 figure. | [
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Andree Layton Roaf, Judge.
Appellant Southwestern Bell Telephone (“Southwestern Bell”) appeals from the Board of Review’s (“Board”) decision granting unemployment benefits under Ark. Code Ann. § ll-10-513(c) (Supp. 2003) to employee Stephen Barkley, who voluntarily participated in a work force reduction process initiated by Southwestern Bell. On appeal, Southwestern Bell argues that the Board’s decision that Barkley left his employment after it requested volunteers for a permanent work force reduction is not supported by substantial evidence and amounts to an erroneous construction of section ll-10-513(c). We reverse and remand for the Board to make further findings of fact.
Barkley, who began working for Southwestern Bell in 1974, ended his employment as a cable-splicing technician on July 8, 2003, after participating in Southwestern Bell’s Voluntary Sever- anee Program (“VSP”). Under this program, when Southwestern Bell determines that there is a surplus of employees in a certain area and that a work force reduction will be necessary, it is required by its collective bargaining agreement to offer eligible employees the opportunity to sign up for a voluntary severance package. Participation in the VSP is based on seniority, and the most senior employees are allowed to participate until the workgroup that contains a surplus is reduced by the required number of employees. The surplus will only be resolved by layoffs if there are not enough eligible participants in the VSP. Layoffs are determined by reverse seniority, so that the least senior employee is laid off first.
In the summer of 2003, a surplus was announced in Para-gould, which is within Barkley’s “Force Adjustment Area” (“FAA”). Barkley testified that there was not a surplus within his particular workgroup, in Jonesboro, but that he was eligible to be considered in the VSP because there was a surplus within his FAA. He requested a “Voluntary Candidate Request Form” from his manager and filled it out on May 9, 2003, stating that he was requesting to be offered a voluntary severance payment. Barkley then received a “Voluntary Severance Candidate Request Conditional Offer,” which stated that his form had been received by the Placement Bureau, that the company was trying to establish a “pool” of voluntary severance candidates, and that it was trying to determine if Barkley would be willing to accept an offer should a match be made for his position. The letter stated that if Barkley accepted the offer, his decision was irrevocable.
Barkley signed this document on June 30, 2003. He testified that he had applied for the VSP and had been made conditional offers on prior occasions, but that he did not accept the offers at those times because he was not “ready to go.” On this occasion, after Barkley was offered a voluntary severance payment of $46,700, he decided to accept the offer. Barkley testified that he was matched with another employee in Paragould, who would have lost his job had he not accepted the voluntary severance offer. Barkley acknowledged that his job was not in jeopardy at that time and that he could have continued to work at Southwestern Bell if he had not participated in the VSP. He testified that it was “general knowledge” within the company that the VSP was available once there was an announced surplus and that “the word just gets out.” He stated that no one at Southwestern Bell approached him and asked him to volunteer.
Barkley’s workgroup manager, Allen Jay Simmons, testified that Barkley was one of ten employees in his workgroup and that he asked to fill out the Voluntary Candidate Request Form after the surplus was announced within their FAA. Simmons stated that no one in his particular workgroup was going to be affected by the surplus and that Barkley’s job was not at risk. Simmons testified that the VSP forms are kept on his desk and that the employee makes the choice to fill out the form and send it in. He stated that the employee from Paragould who was matched with Barkley had taken over Barkley’s position in Jonesboro.
After leaving his employment with Southwestern Bell, Barkley was denied unemployment compensation by the Arkansas Employment Security Department (“ESD”) on the basis that he voluntarily and without good cause left his work. Barkley appealed to the Appeal Tribunal, which reversed the ESD’s determination and awarded him unemployment benefits under Ark. Code Ann. § ll-10-514(a) (Supp. 2003) on the finding that he was discharged from his last work for reasons other than misconduct in connection with the work. Southwestern Bell then appealed to the Board of Review, which affirmed and modified the Appeal Tribunal’s decision, finding that Barkley was entitled to benefits under section 11-10-513(c) because he voluntarily participated in a permanent reduction in the employer’s work force after the employer had announced a pending reduction and asked for volunteers. Southwestern Bell now appeals the Board’s decision.
Southwestern Bell argues that the Board’s decision that Barkley left his employment after Southwestern Bell requested volunteers for a permanent work force reduction is not supported by substantial evidence and amounts to an erroneous construction of Ark. Code Ann. § 11-10-513(c).
On appeal, the findings of the Board of Review are affirmed if they are supported by substantial evidence. Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences therefrom in the fight most favorable to the Board’s findings. Id. Even where there is evidence upon which the Board might have reached a different conclusion, appellate review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Section 11-10-513(a)(1) (Supp. 2003) states that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” However, in an amendment that became effective on April 11, 2003, the legislature added a new subsection to this statute, which states:
(c)(1) No individual shall be disqualified under this section if he or she left his or last work because he or she voluntarily participated in a permanent reduction in the employer’s work force after the employer announced a pending reduction in its work force and asked for volunteers.
(2) Such actions initiated by the employer shall be considered layoffs regardless of any incentives offered by the employer to induce its employees to volunteer.
(3) Any incentives received shall be reported under § 11-10-517.
(Emphasis added.)
While Southwestern Bell admits that there was a surplus in its work force that was announced, it contends that there was no evidence that it “asked for volunteers” for the VSP, as is required under subsection (c) of the statute. According to Southwestern Bell, Barkley voluntarily chose to apply for the VSP, without being asked to volunteer, and the Board’s “implicit” finding that Southwestern Bell “asked for volunteers” merely by the availability of its VSP is an erroneous construction of the statute.
We are unable to address this argument and must reverse and remand to the Board for it to make further findings. As Southwestern Bell recognizes in its argument, the Board never explicitly made a finding as to whether, and if so, in what manner, the company “asked for volunteers” pursuant to the requirements of section ll-10-513(c). Under the Board’s “Findings of Fact and Conclusions of Law,” it stated that, “[b]ased on the evidence, the Board of Review finds that the claimant voluntarily participated in a permanent reduction in the employer’s work force after the employer announced a pending reduction in its work force, and asked for volunteers; under the law this is a non-disqualifying separation from work.” However, the Board does not set forth any factual basis for this conclusion. Although the Board includes some of the relevant facts in its “Summary of Evidence” section, it does not make findings as to which facts it relied upon in reaching its decision.
It is the responsibility of the state agency to make findings of fact, and this court cannot review an agency decision in the absence of adequate and complete findings on all essential elements pertinent to the determination. Sanders v. Director, 80 Ark. App. 110, 91 S.W.3d 520 (2002); Ferrin v. Director, 59 Ark. App. 213, 956 S.W.2d 198 (1997). A conclusory statement by the Board that does not detail or analyze the facts upon which it is based is not sufficient. Ferrin, supra. Because we are unable to determine the facts upon which the Board relied in reaching its conclusion that Barkley was entitled to benefits under section 11-10-513(c) and because we are unable to do a de novo review of an agency decision, we reverse and remand for the Board to make further findings.
Reversed and remanded.
Bird and Crabtree, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellants James Stanley and Audrey Burtrum-Stanley appeal the Pulaski County Circuit Court’s April 28, 2003 order distributing the proceeds of a partition sale. On appeal they argue that the property was subject to invalid and unenforceable leases and that the court erred in confirming the sale and refusing to set aside the partition sale. Appellees filed a motion to dismiss the appeal, contending that appellants did not file a timely notice of appeal. We agree that the appeal was not timely filed and dismiss the appeal.
A thorough discussion of the trial pleadings is necessary. On July 15,1999, appellants filed a petition to partition a lot located in North Little Rock. On August 29, 1999, a second amended petition for partition was filed naming William B. Blevins, William S. Robinson, Harriet Robinson, and Bank of America, N.A., as defendants. Ultimately on January 24, 2000, the Internal Revenue Service (I.R.S.) was joined as a defendant in the third amended petition.
On January 18, 2001, the trial court ordered an appraisal of the property. On March 5, 2001, the trial court entered an agreed order waiving the appointment of a commissioner and ordering that the property be sold. The order stated that, after an appraisal, the property would be sold and the proceeds of the sale would be placed in the registry of the court. On April 16, 2002, an appraisal report was filed with the court placing the market value of the property at zero dollars. The report stated that the property’s value would be $275,000 if it were not subject to certain leases and litigation. On August 20, 2002, the court appointed a commissioner and again ordered the property sold.
The property was sold to appellees at a commissioner’s sale held October 31, 2002. On December 6, 2002, the report of sale was filed with the court. An order confirming the sale and order of distribution was also filed on December 6, 2002.
One day prior to the confirmation order being entered, the I.R.S. filed a pleading objecting to the confirmation. On December 13, 2002, appellants filed a pleading entitled Response to the United States’ Objection to Confirmation in which they joined the I.R.S. in its objections. On December 18, 2002, appellees filed a response to the objections, arguing that the objections of the I.R.S. and appellants were moot. On January 3, 2003, the I.R.S. filed a notice of appeal, and appellants filed a motion to set aside the December 6, 2002 order. On February 19, 2003, the trial court entered an order allowing appellants and the I.R.S. to submit briefs by March 5, 2003. The trial court never specifically ruled on appellants’ motion to set aside the December 6 order, but on April 3, 2003, it entered an order striking the I.R.S.’s objection to the purported leases. On April 28, 2003, the trial court entered an order distributing the funds held in the registry of the court. Although not included in the addendum, appellants filed their notice of appeal on May 22, 2003, appealing the April 28, 2003 order of distribution.
Appellants raise two points on appeal. They argue that the leases for the subject property were invalid and unenforceable and that the court erred in confirming the sale and refusing to set it aside. These issues arise from the December 6, 2002 order confirming the sale and distribution of proceeds. A notice of appeal shall be filed within thirty days from the entry of judgment, decree, or order appealed from, unless the time to appeal is extended by the filing of a post-trial motion within ten days of the order. See Ark. R. App. P.—Civ. 4(a), (4)(b)(1). Appellants never appealed the December 6, order, nor did they file a cross appeal to the I.R.S.’s appeal. Appellants did, however, file a motion to set aside the December 6 order on January 3, 2003. Because appellants’ motion was not filed within ten days of the December 6 order, but rather was filed twenty-eight days later, it was insufficient to extend the time to file their notice of appeal from the December 6 order.
The confirmation of the decree and report of sale is conclusive of any issue which might and should have been raised in opposition to the confirmation. All of the issues sought to be raised here could have and should have been raised at the proper time, and we must now give conclusive effect to this confirmation order. See Dumas v. Owen, 210 Ark. 505, 196 S.W.2d 987 (1946); Jones v. National Bank of Commerce of El Dorado, 207 Ark. 613, 182 S.W.2d 377 (1944).
Appellants filed a notice of appeal from the second order of distribution and not from the order confirming the sale. Accordingly, appellants’ appeal is untimely and must be dismissed.
Dismissed.
Stroud, C.J., and Neal, J., agree.
Assuming that the I.R.S.’s pleading effectively filed on December 7, 2002, and appellants’ pleading filed on December 13,2002, in which theyjoined the I.R.S.’s objections, qualifies as a post-trial motion, appellants’ notice of appeal was still untimely. Both pleadings were filed within ten days of the order, which would serve to extend their time for filing notices of appeal. Because the court took no action, their motions were deemed denied on January 5, 2003. See Ark. R.App. P.—Civ. 4(b)(1). Appellants then had until February 4, 2003, to file their notice of appeal. Because appellants did not file their notice of appeal until May 22,2003, it was untimely. | [
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Wendell L. Griffen, Judge.
Appellants Richard and Erma Hudson appeal the Pulaski County Circuit Court’s award of $3,019.55 in damages and $2,750 in attorney fees to appellees Emile and Jennifer Hilo in what turned into a contract-rescission case. They argue (a) that the trial court erred in awarding damages for betterments when there was no proof of the value of the betterments and (b) that the judgment for attorney fees was also improper. The appellees argue that the trial court’s decision was correct despite its misplaced analysis, that the award of damages was proper, and that the award of attorney fees should be upheld. We hold that the trial court properly awarded damages to the appellees based on the cost of improvements made to the property, but that the trial court improperly based its decision on the Arkansas Betterment Act, Ark. Code Ann. § 18-60-213 (Repl. 2003). We also hold that the trial court’s award of attorney fees to the appellees was permissible because appellees incurred legal expenses in defending a foreclosure action arising from a real-estate-installment note. Thus, we affirm.
Background Facts
The Hudsons executed a warranty deed on property in Pulaski County from themselves to the Hilos on April 24, 2001. The Hilos signed a real-estate-installment note for $26,500 at 8% interest. Payments were to be made in $400 installments starting in April 2001. The note was secured with a mortgage. The Hilos made several improvements to the property, including carpeting, linoleum, floor replacement, ceiling fans, sheet rock, vanity lights, a water heater, pipes, and landscaping.
On September 27, 2002, the Hudsons filed a complaint for foreclosure, alleging that the Hilos had stopped making payments on the note and were in default. The Hilos answered by admitting that they did not make payments; however, they counterclaimed for rescission of the contract, alleging that the Hudsons made incorrect statements on a disclosure statement. The Hilos alleged a misrepresentation when the Hudsons erroneously stated that the septic system and other utilities were not shared with any adjoining property owner when in fact the septic system was on the neighbor’s land.
At trial, Jennifer Hilo testified that she and her husband spent $6,530 on improvements to the property. No one testified that those improvements added to the value of the property. Mrs. Hilo also testified that appellees paid $500 for the down payment and $389.55 in closing costs, that they made eighteen payments of $400, and that they occupied the property for twenty-nine months. The parties disputed the fair rental value of the property, with the Hudsons placing that value at $400 and the Hilos at $200.
The circuit court found that the Hudsons made a material misrepresentation about the location of the septic lines, but that the misrepresentation did not rise to the level of being fraudulent. The circuit court rescinded the contract and declared the Warranty Deed and Mortgage null and void. The circuit court also dismissed the foreclosure complaint and awarded the Hilos $3,019.55 in damages. On subsequent motion, the circuit court awarded the Hilos $2,750 in attorney fees.
On July 3, 2003, the Hudsons asked for findings pursuant to Ark. R. Civ. P. 52 regarding the judgment. They also asked the circuit court to set aside the judgment. While the court declined to set aside the judgment, it issued the following findings:
1. The defendants expended $6,530.00 for repairs and improvements to the real property.
2. The defendants made a down payment of $500.00.
3. The defendants paid closing costs in the amount of $389.55.
4. The defendants paid eighteen (18) payments of $400.00.
5. The defendants occupied the real property for 29 months.
6. The reasonable rental value of the real property, with repairs, was $400.00 a month.
This appeal followed.
Analysis
We review traditional cases of equity de novo and will not reverse factual findings by the trial court unless they are clearly erroneous. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Murphy v. City of West Memphis, 352 Ark. 315, 1001 S.W.3d 221 (2003). However, a trial court’s conclusion of law is given no deference on appeal. Id.
The Hudsons argue that the trial court erred in awarding damages based on the cost of the improvements to the property. They contend that the award for betterments under the rescinded contract was erroneous because there was no proof as to the value of the betterments. The Hilos argue that the court erred in characterizing the improvements as betterments, but that the court reached the correct result for the wrong reason.
The remedy under the Arkansas Betterment Act is based on the value of the improvement to land, as the Hudsons stated in their brief. See Smith v. Nelson, 240 Ark. 954, 403 S.W.2d 99 (1966). However, the Betterment Act applies in cases where a party, believing himself to be the owner of land and under color of title, peacefully improves land later discovered to belong to another. Riddle v. Williams, 204 Ark. 1047, 66 S.W.2d 893 (1942). In this- case, the Hilos made improvements to land that they purchased under an installment contract, not land that actually belonged to others. The Betterment Act is inapplicable in such cases.
In their reply brief, the Hudsons rely on Massey v. Tyra, 217 Ark. 970, 234 S.W.2d 759 (1950), for the proposition that the proper measure of damages is not the cost expended on the improvements, but the increase in value to the property after the improvements. Massey v. Tyra, supra, is not a case involving the application of the Betterment Act. Rather, it involves damages stemming from a misrepresentation concerning the water supply on the land and the buyer’s reliance that the water supply would be adequate enough to open a restaurant. Accordingly, the measure of damages provided in the Betterment Act is the wrong measure of damages. Moreover, the improvements made by the Hilos were made in reliance on the Hudsons’ misrepresentation that formed the basis for the rescission. In Massey, supra, the supreme court awarded the buyer $509.68, the cost expended on the well on the property, because it found that the expenditure “was a direct and reasonably foreseeable result of defendants’ misrepresentation, and recovery on account of it should be allowed.” Id. at 977, 234 S.W.2d at 763.
In the present case, the trial court granted the remedy of rescission. As we have stated in the past, “It is generally recognized that in an action for rescission of a contract in a court of equity, the court applies equitable principles in an attempt to restore the status quo or place the parties in their respective positions at the time of the sale.” Riley v. Hoisington, 80 Ark. App. 346, 355, 96 S.W.3d 743, 749 (2003) (quoting Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992)). Based on these principles, it follows that the Hudsons must return all monies that the Hilos spent on the house, including money spent on improvements, where the contract has been rescinded.
We are affirming the judgment even though the trial court reached the proper result using the wrong reasoning. See Faulker v. Arkansas Children’s Hospital, 347 Ark. 941, 69 S.W.3d 393 (2002). However, the Hudsons argue that this court should not affirm the judgment on alternate grounds. They cite Simmons First National Bank v. Wells, 279 Ark. 204, 650 S.W.2d 236 (1983), and argue that “it was held that because a statute was not argued to the trial court, evidence relevant to the statute was not sufficiently developed for the [s] up reme [c]ourt to apply the rule that it will affirm the trial court if a correct result is reached, even if reached on an erroneous theory.” However, the evidence needed to properly calculate damages in this case, the cost of the improvements, was testified to by Jennifer Hilo. We have all the relevant evidence necessary to affirm the trial court’s decision in a rescission case.
The Hudsons also cite Hall v. Potter, 81 Ark. 476, 99 S.W. 687 (1907), for the proposition that “a ground of relief not raised by the pleadings or in the lower court cannot be considered on appeal.” The Hudsons argue that the Hilos only asked for “all expenses incurred in connection with the purchase of the aforementioned property.” However, the Hilos asked for those expenses as well as attorney fees, costs, and “for all other proper relief to which [they] may be entitled.” Because the cost of improvements is a proper measure of recovery in contract-rescission cases, we affirm.
The Hudsons also argue that the court erred in awarding attorney fees to the Hilos. In Arkansas, a court cannot award attorney fees unless they are expressly provided for by statute or rule. Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 876 S.W.2d 603 (1994). Both parties agree that Ark. Code Ann. § 16-22-308 (Repl. 1999), which allows for attorney fees in cases involving various actions such as breach of contract and negotiable instruments, does not allow attorney fees in contract rescission cases. See Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998); Friends of Children, Inc., supra. However, this case began as a proceeding to foreclose on a home and enforce a promissory note. The Hilos defended the suit by alleging grounds for rescission and prevailed on those grounds. We find that under these facts, the Hilos were the prevailing party in a foreclosure action, entitling them to attorney fees. Therefore, we affirm the award.
Affirmed.
Crabtree and Baker., JJ., agree.
Rescission is a remedy cognizable in equity. See Phelps v. U. S. Life Credit Life Ins. Co., 336 Ark. 256, 984 S.W.2d 425 (1998); Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993).
The Betterment Act reads, in pertinent part:
(a) If any person believing himself or herself to be the owner, either in law or equity, under color of title has peaceably improved, or shall peacefully improve, any land ■which upon judicial investigation shall be decided to belong to another, the value of the improvement made as stated and the amount of all taxes which may have been paid on the land by the person, and those under whom he or she claims, shall be paid by the successful party to the occupant, or the person under whom, or from whom, he or she entered and holds, before the court rendering judgment in the proceedings shall cause possession to be delivered to the successful party.
There was also an attempt to amend the pleadings to conform to the evidence when the Hudsons objected to evidence of the cost of the improvements. The court took the matter under advisement and allowed the testimony. Had the trial court sustained the objection and not allowed the evidence, then it would have run afoul of Ark. R. Civ. P. 15(b) (“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion.”). See also King v. State, Office of Child Support Enforcement, 58 Ark.App. 298, 952 S.W.2d 180 (1997) (finding no abuse of discretion when the court heard a statute of limitations issue when the parties discussed it extensively at a hearing). | [
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George K. Cracraft, Chief Judge.
Joseph M. Thorne appeals from a decree of the Baxter County Chancery Court quieting title to a tract of land in Benny and Janie Magness. The chancellor found that appellant’s tax deed was void and that appellees were the owners of the property. Appellant contends that the trial court erred in setting the tax sale aside because appellees lacked standing to attack it; in not holding that appellees had not acted in good faith and were barred from maintaining the action under the doctrine of clean hands; and in failing to grant his motion for a new trial or to amend the judgment and increase the award of damages. We find no error and affirm.
On November 24,1982, appellant obtained a certificate of purchase on a tract of property at a collector’s tax sale. Although appellant received the certificate of purchase on that date, he did not receive a deed from the county clerk until November 23, 1987. His deed was recorded on that same day. Appellant thereafter made improvements on the property.
On August 3,1989, appellees filed their petition to quiet title against appellant alleging that they were the owners of the property; that they acquired title by virtue of a quitclaim deed from First National Bank & Trust Company of Mountain Home; that they and their predecessors had adversely possessed the property for more than seven years; and that the tax deed conveying the property to appellant was void because of the clerk’s failure to comply with the statutes governing the forfeiture and sale of lands delinquent for nonpayment of taxes. Appellant answered denying the allegation and alleging that, because appellees had received their deed from First National Bank & Trust Company on March 13,1989, but had not recorded it until after this suit was brought, they were without clean hands to seek quiet-title relief. Appellant counterclaimed seeking to have title confirmed and quieted in him.
The chancellor found a number of fatal irregularities in the tax sale and set aside the deed from the county clerk to appellant. In quieting title in appellees, the chancellor found that they had acquired title by virtue of a quitclaim deed, dated March 13, 1989, and that they and their predecessors had adversely possessed the property for over seven years. The chancellor awarded appellant damages in the amount of $1750.00 for improvements made to the property under color of title, as provided in Ark. Code Ann. § 18-60-213 (1987), and $291.06 as reimbursement for taxes paid on the property since the date of the collector’s sale.
Appellant does not deny that the tax sale was defective and void. He contends that the chancellor erred in setting it aside because appellees lacked standing under Ark. Code Ann. § 26-38-107(b) (1987) to challenge its validity in that they did not acquire record title to the property until 1989, did not prove their chain of title, and had not paid taxes on the property for at least seven years. We disagree.
Arkansas Code Annotated § 26-38-107(b) provides:
No person shall be permitted to question the title acquired by a deed of the county clerk without first showing that he, or the person under whom he claims title to the property, had title thereto, at the time of the sale, or that title was obtained from the United States, or this state, after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid.
Although appellees did not acquire their deed from their immediate predecessor until March 1989, appellees did prove that their predecessors in title had legal title to the property at the time of the tax sale as required by the statute. The clear wording of the statute requires only that the persons under whom appellees claim had title at the time of the sale.
The record discloses that, at the time the sale was held the property taxes had been assessed in the name of “Steakhouse Marketing Company.” Appellees introduced into evidence an abstract of title to the property in question which deraigned appellees’ title from an original source to Steakhouse Marketing Company, in whose name the forfeiture occurred. They further deraigned their title from Steakhouse Marketing Company to the First National Bank & Trust Company, from whom appellees acquired title in 1989. These exhibits were admitted without objection, and we find no evidence that disputes their validity. Appellees satisfied the requirements of the statute. See Fine v. Bucha, 247 Ark. 1074, 449 S.W.2d 406 (1970); Davis v. Stonecipher, 218 Ark. 962, 293 S.W.2d 756 (1951).
Nor do we find merit in the argument that appellees lacked standing because the record showed that they had not paid taxes on the property. The court specifically found that the clerk had failed to append his certificate to the list of delinquent lands prior to the tax sale. In Standard Securities Co. v. Republic Mining and Manufacturing Co, 207 Ark. 335, 180 S.W.2d 575 (1944), the court held that this is a “meritorious defense” that could not be cut off by the legislature. See also Cooper v. Freeman Lumber Co., 61 Ark. 36, 31 S.W. 981 (1895).
Appellant next contends that, because appellees’ deed from the bank was not filed until after the petition was filed, they had come into court with unclean hands. This maxim bars relief only to those guilty of improper conduct in the matter as to which they seek relief. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990). The fact that appellees’ deed had not been recorded does not constitute evidence of improper conduct calling that maxim into play.
Relying on Ark. Code Ann. § 14-15-404(b) (1987), appellant contends that, because his deed from the county clerk was recorded prior to the time appellees’ deed was recorded, they cannot maintain this suit. That section gives priority to the first recording only as between purchasers deriving their interest from a common grantor. Taylor v. Scott, 285 Ark. 102, 685 S.W.2d 160 (1985); Richardson v. Fisher, 236 Ark. 612, 367 S.W.2d 440 (1963). It has no application to an intervening tax deed obtained from a county clerk.
Appellant also argues that, even if his tax deed is void, it still constituted color of title and, because he paid taxes on the property for seven years under color of title, his title has ripened into good title under Ark. Code Ann. § 18-11-102 (1987), which provides that unimproved and unenclosed lands will be deemed to have been held in the possession of a person who pays the taxes on its under color of title for at least seven years in succession. Reliance on this section is misplaced. Although appellant purchased the property at the tax sale and was issued a certificate of purchase in November 1982, he did not receive his deed until 1987. A certificate of purchase issued at a tax sale is not color of title. Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986). He therefore claimed under color of title for less than a year before the suit was filed.
While we agree with appellant that the evidence does not support the chancellor’s finding that appellees had been in adverse possession for seven years preceding the filing of the action, for reasons previously discussed, we affirm his action in quieting title in appellees on proof that they were the holders of the record title. The decree is modified accordingly.
There was testimony that appellees first acquired their interest in the property at a foreclosure sale from the Small Business Administration and First National Bank & Trust Company in the late 1970’s or early 1980’s, but had not recorded the deed and did not know what happened to it. Appellee Benny Magness testified that he obtained the 1989 deed from the bank in order to clear up that interest and to obtain the remainder of the land that had belonged to the bank. Appellant contends that the chancellor erred in denying his motion for new trial, arguing that because appellees’ petition failed to assert ownership of the property prior to March 1989, other than by adverse possession, he was surprised by this testimony and, therefore, was deprived of the affirmative defense of laches. We cannot agree.
Rule 59(a) of the Arkansas Rules of Civil Procedure provides that a new trial can be granted where there is proof of “accident or surprise which ordinary prudence could not have prevented.” The trial judge has broad discretion in determining whether or not to grant a new trial, and his determination will not be disturbed on appeal absent a showing of abuse. First State Bank v. Gramble, 14 Ark. App. 53, 685 S.W.2d 173 (1985). Here, appellant did not request a continuance or move to amend his answer to assert the defense of laches, and the evidence he complains of was received without objection, as was appellees’ deraignment of legal title. One who is surprised by his adversary’s testimony is not entitled to a new trial on that ground if, rather than asking for a postponement to secure necessary evidence, he reserves his plea of surprise as a “masked battery in the effort for a new trial.” Sellers v. Harvey, 220 Ark. 541, 249 S.W.2d 120 (1952). See also Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987).
Appellant also contends that he should have the judgment reopened in order to produce additional evidence of his damages for improvements made on the property under color of title. As we have stated, appellant did not request a continuance at trial nor has he included in his brief any indication of what additional evidence he was prevented from producing at trial. We conclude there was no abuse of discretion in failure to reopen or in failing to grant a new trial.
Affirmed and modified.
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George K. Cracraft, Chief Judge.
Thelma Jean Smith appeals from her conviction of delivery of a controlled substance for which she was sentenced to three years in the Arkansas Department of Correction and fined $ 10,000.00. The sole issue on appeal is whether the trial court erred in refusing to instruct the jury on the affirmative defense of entrapment. We find no error and affirm.
At trial, the State offered evidence that on two occasions Donnie Harris, a confidential informant operating with police officer Brad Bennett, obtained marijuana from appellant at her home in exchange for money. The officer testified that on both occasions he had searched Harris to make certain that he had no money or marijuana on his person prior to the controlled buy. He stated that on one occasion he gave Harris $25.00, drove him to the vicinity of the appellant’s residence, and watched him enter the house, and that Harris returned without the $25.00 and delivered to him a bag of marijuana. He testified that on the second occasion Harris was given $55.00 and the same procedure was followed. He testified that Harris went into appellant’s house, returned without the $55.00, and delivered to him a bag of marijuana.
Harris testified that he first met appellant at a club in Russellville and that he saw several times thereafter before there was any conversation about drugs. He testified that the first time drugs were mentioned was when he was at appellant’s residence and he asked appellant’s friend if she knew where he could get some marijuana. Harris stated that appellant replied that she “could get it.” Harris testified that he later returned with Officer Bennett and purchased some marijuana. He further testified that he had purchased some marijuana from appellant on a subsequent occasion for fifty or fifty-five dollars. He added that, on that occasion, appellant handed him a bag of marijuana from her refrigerator and he handed her the money. According to Harris, he had visited appellant’s residence “a dozen times or so” and that they were just acquaintances.
Appellant testified and denied that she had sold marijuana to Harris. She stated that on one occasion she had given Harris some marijuana but that she did not receive any money in exchange for it. She testified that she had obtained the marijuana from her nephew many years before and that it had been in her freezer. Appellant stated: “I gave it to Mr. Harris. I did not take any money from him.” She testified that on one occasion Harris had given her some money but that it was in payment of a debt and not in exchange for contraband. Appellant denied ever having given marijuana to Harris on any other occasion, Appellant further testified that she had seen Harris at least fifty times and that he had asked her to marry him. She stated that, although she did like Harris at first, they never had an affair and she was not interested in him.
The trial court refused to give appellant’s proffered instruction on entrapment because appellant denied that she had received anything of value in exchange for the admitted delivery of marijuana and that she was involved in any other delivery. Appellant was found guilty of one count of delivery of a controlled substance.
Appellant contends that the trial court erred in refusing to instruct the jury on the affirmative defense of entrapment. We do not agree. “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value. Ark. Code Ann. § 5-64-101(f) (Supp. 1989). Arkansas Code Annotated § 5-2-209 (1987) provides that entrapment occurs when an officer, or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
On several occasions our courts have had the opportunity to consider the affirmative defense of entrapment, and have held that when it is invoked it is necessarily assumed that the act charged was committed. See Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973). Where a defendant insists that he did not commit the acts he is charged with, one of the bases of the entrapment defense is absent and he is not entitled to that defense. Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1974); Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). As appellant denied that she accepted money or anything of value in exchange for the marijuana that she delivered to Harris, we cannot conclude that the trial court erred in refusing to give an entrapment instruction.
In Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989), our supreme court recognized that the federal courts had adopted the rule that, even if a defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. See Mathews v. United States, 485 U.S. 58 (1988). In Morris, the defendant denied that he had sold marijuana to an undercover agent and the trial court denied his requested instruction on entrapment. Affirming the trial court, the supreme court stated that it was not bound to follow Mathews because that case involved the construction of federal procedural law and that, in any event, there was no evidence from which the jury could have found entrapment. In dicta, the court in Morris stated:
[W]e can think of at least two situations where our prior cases and Mathews would conflict: (1) when the accused denies committing the offense charged, but the prosecution’s case-in-chief includes substantial evidence of entrapment; and
(2) when the accused is charged with conspiracy, but denies being party to the conspiracy, and claims that any overt acts done by him were the result of entrapment. Neither of these cases are before us, and we will save the resolution of the issue until we have such a case.
300 Ark. at 342, 779 S.W.2d at 527.
Appellant argues that we should depart from the established law in Robinson, Fight, and Brown and follow Mathews. We decline to do so for two reasons. First, we are bound to follow the existing rule. Any such departure should be made by the supreme court rather than the court of appeals as we do not consider it within our province to do so. Secondly, neither of the two situations in which the court in Morris noted that our prior cases and Mathews would conflict are present here.
Affirmed.
Jennings and Rogers, JJ., dissent. | [
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George K. Cracraft, Chief Judge.
Tommie Elliott Freeman appeals from his conviction of possession of a controlled substance with intent to deliver for which he was sentenced to fifteen years in the Arkansas Department of Correction. He contends that the trial court erred in refusing to suppress evidence seized during a search of his dwelling. We find no error and affirm.
In April 1989, the Little Rock Police Department received information from the Texas State Highway Patrol indicating that Texas officers had seized a large quantity of marijuana in which they found a piece of paper bearing the name “Tommie” and a Little Rock telephone number. Officer Debra Gray of the Little Rock Police Department investigated the matter and developed information that the person referred to as “Tommie” was appellant, who was on parole from the Arkansas Department of Correction. Officer Gray contacted Jim Lovette, appellant’s parole officer, and asked him to check appellant’s parole status. The parole officer reviewed appellant’s file and found that appellant had missed several office visits with his former parole officer, although he was not currently delinquent, and that there had been a number of telephone calls to appellant when he could not be reached. He also found that appellant was delinquent in the payment of fees, which was ordered as a condition of his parole.
The parole officer testified that, from “bits and pieces” reflected in appellant’s file, he determined that the information he had received from Officer Gray regarding appellant’s possible involvement in drug trafficking was “probably valid” and that he would investigate further. He contacted Officer Gray and asked her to accompany him to appellant’s residence because it was believed that a female shared appellant’s dwelling with him and he thought there might be trouble. The parole officer testified that, based on the information he had discovered in appellant’s file, he intended to arrest him for a parole violation.
The two officers went to appellant’s residence and knocked on the door. When appellant opened the door, the officers detected a strong smell of marijuana and observed a partially smoked marijuana cigarette in an ashtray on the table. Notwithstanding appellant’s request that they not enter the house, the officers did so and thereafter discovered a large quantity of marijuana in unsealed boxes in a bedroom. The trial court denied appellant’s motion to suppress the evidence obtained as a result of the search of his residence. Appellant thereafter entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b), and this appeal follows.
Appellant contends that the trial court erred in denying his motion to suppress, arguing that the officers’ warrantless entry into his residence was in violation of his fourth amendment right against unreasonable search and seizure. We do not agree.
When reviewing a trial court’s ruling on a motion to suppress, this court makes an independent determination based on the totality of the circumstances. We give great weight to the findings of the trial court in the resolution of evidentiary conflicts and defer to its superior position in passing upon the credibility of witnesses. The decision of the trial court will not be reversed unless clearly erroneous. Campbell v. State, 27 Ark. App. 82, 766 S.W.2d 940 (1989); Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988).
At the suppression hearing, it was shown that at the time of his parole, appellant had signed a form, acknowledging that he was subject to a warrantless search of his person or property under his control by a parole officer when the officer has reasonable grounds for investigating whether appellant was in violation of the terms of his parole or had committed a crime. In Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990), our supreme court held that such “consent-in-advance” is not viola-tive of any constitutional rights of the parolee because the supervision of parolees and probationers is a special need of the State, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. See also Griffin v. Wisconsin, 389 U.S. 686 (1989). The court held that, in determining whether the search was carried out under the terms of the consent, two issues must be addressed: (1) were there reasonable grounds to investigate whether the appellant had violated the terms of his parole, and (2) was the search conducted by the parole officer?
The term “reasonable grounds” has not been defined by our courts. However, in Cherry v. State, supra, the court held that this standard had been met on facts that were peculiarly similar to those here. In Cherry, the appellant’s parole officer received information that the appellant had violated the terms of his parole by residing with another parolee, who was subject to the supervision of another parole officer. Both parole officers, accompanied by a police officer, went to the house where the two parties were said to be residing and, upon entering, discovered a number of firearms and evidence of marijuana use. After the appellant was placed under arrest, his parole officer obtained the assistance of the police officer, who opened appellant’s vehicle with the use of a “slim-jim device.” The parole officer then searched the vehicle and discovered a weapon, which became the basis of a first degree murder charge against the appellant.
Here, the condition of appellant’s parole included that he pay certain monthly supervision fees, that he not have in his possession any narcotics except those prescribed by a licensed physician, and that he obey all federal and state laws. The parole officer had a right to inquire of appellant as to his compliance with these conditions. When appellant opened his door, the parole officer smelled the strong odor of marijuana and observed a partially smoked marijuana cigarette lying in plain view. We cannot conclude that the parole officer did not have reasonable grounds to investigate these violations.
Nor can we conclude that the search was not conducted by the parole officer. In Cherry, it was declared that a parole officer may enlist the aid of the police, and a police officer may act at the direction of the parole officer without overreaching the scope of the search. See also Griffin v. Wisconsin, supra. Here, the parole officer asked Officer Gray to assist him in his investigation. Officer Gray testified that she was unaware of the authority of the parole officer to search appellant’s residence without a warrant until she was asked to accompany the parole officer. The parole officer testified that he was the first person to discover the marijuana lying in an ashtray in the living room. He testified that both officers entered the bedroom where the quantity of contraband was discovered. We find no evidence that compels the conclusion that the parole officer was not conducting the investigation or that Officer Gray was doing more than assisting him.
From our review of the record, we cannot conclude from the totality of the circumstances that the trial court erred in denying appellant’s motion to suppress.
Affirmed.
Jennings, and Cooper, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Reynaldo Meekins appeals from his conviction of delivery of a controlled substance for which he was sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. He contends that the trial court erred in refusing to grant a continuance and that he was denied effective assistance of counsel. We affirm.
Prior to trial, the prosecuting attorney advised the trial court that it had been brought to his attention that appellant possibly was intoxicated. The prosecutor stated that a breathalyzer test had just been conducted by two police officers and that appellant had registered .19 percent blood alcohol. The prosecutor indicated that he would object to a continuance because, based on his observations of appellant and appellant’s conversations with the officers, appellant appeared to be coherent and able to assist attorney in his defense.
Appellant’s counsel moved for a continuance, stating that since appellant registered .19 on the breathalyzer test, he was unable to help pick a jury or go through the rigors of a trial. Counsel admitted, however, that he had not spoken to appellant since the night before and “I fully defer to the [prosecuting attorney] and the police officers, if they say he can respond effectively, I’ll go with that. But, I personally have no knowledge as to whether he can talk to me or aid me this morning.”
The trial judge then called the two officers to the bench and they testified as follows:
MR. VINES: Yes, sir, he run .19 percent on the breathalyzer. I’ve asked him his name and his address and his date of birth and he has responded to the four questions. He tells me he’s fine and whatever, and he you know, and I asked him to bring — up here and let the Judge ask his name and address and date of birth, and he’s give it probably right back to you. He has so far. His rights was read and he understood and did sign his rights for his breathalyzer at the City Police Department.
[PROSECUTING ATTORNEY]: I’ll ask Mr. Porter the same questions. Sir, were you involved in transportation of Mr. Meekins to and from the City for the breathalyzer test?
MR. PORTER: Yes, sir, we gave him a breathalyzer. The lady hooked the breathalyzer up. She asked him the questions — name, address, how old he was, his date of birth, and he answered her fine. Didn’t have any problem. He acted coherently and knew what was going on. Matter of fact wanted — there was a detective came in, he talked to him about that he’d remembered seeing him, his name on the subpoena list and all that stuff. He knows what’s going on. He’s not out of it. He knows what’s going on.
In light of the officers’ testimony, the court denied appellant’s request for a continuance, finding that appellant was able to understand the proceedings. The court stated that “if at such time that the Court is convinced that the defendant is unable to understand the proceedings then the Court will take an appropriate action at that time.”
Appellant contends that the trial court erred in refusing to grant a continuance, arguing that his sixth amendment rights were violated when he was forced to trial in an intoxicated condition. We agree that a person who is so intoxicated as to be unable to understand the proceedings or effectively participate in his defense ought not to be tried until that incapacity has been removed. See Taffe v. State, 23 Ark. 36 (1861); Ark. Code Ann. § 5-2-302 (1987). However, we cannot conclude from our review of the record that appellant was in such a condition.
The record reflects that the prosecuting attorney stated, when he first entered the courtroom, that he observed appellant reading a newspaper. Both police officers, who had closely observed appellant, opined that he was not incapacitated, but was coherent and in control of his faculties. Although appellant’s counsel initially denied any knowledge of appellant’s condition, he failed to renew his motion at any time during the trial, after he had full opportunity to observe and confer with his client.
The record also reflects that, after the State had offered its proof, appellant’s counsel announced that, although he had advised appellant that it would not be in his best interest for him to take the witness stand in his own behalf, appellant refused to accept his counsel’s advise. The court then questioned appellant to make sure that he knew of his right to remain silent, and appellant insisted that he wished to exercise his right to testify. From our review of the record, we find that appellant’s testimony was clear, precise, and candid and that there was nothing to indicate that he was unable to assist in his own defense. Appellant has not pointed out to us, and we have been unable to find, anything in the record indicating action on the part of appellant that would require the trial court to continue the case or declare a mistrial.
We find no merit in appellant’s argument that, because his blood alcohol level exceeded .10, we must conclude, based on Ark. Code Ann. § 5-65-103 (1987), that he was too intoxicated to stand trial. That section provides that it is unlawful for any person to operate a motor vehicle if his blood alcohol level is .10 percent or more. It does not declare or imply that a person in such condition is incompetent for any other purposes.
Nor do we find merit in appellant’s argument that the trial court should not have relied entirely on the testimony of the police officers and should have interrogated appellant in person. The trial court did conduct a hearing to determine whether appellant was competent to participate in the trial, interrogating those persons who purportedly had knowledge of appellant’s condition and to whose judgment appellant’s counsel deferred. Furthermore, the trial court had full opportunity to see and observe appellant throughout the trial. Whether to grant a continuance is within the sound discretion of the trial court and we will not reverse unless there has been an abuse of that discretion. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). From our review of the record, we cannot conclude, under the circumstances of this case, that the trial court abused its discretion in refusing to grant a continuance.
Appellant also contends that he was denied effective assistance of counsel. We do not address that issue because it was not properly preserved for appeal by motion for a new trial on that ground. Ark. R. Crim. P. 36.4.
Affirmed.
Rogers, J., dissents. | [
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Judith Rogers, Judge.
This appeal arose from an incident occurring at Central High School in Little Rock, Arkansas. The appellant was charged by felony information on February 1, 1990, with the following offenses: battery in the first degree, Ark. Code Ann. § 5-13-201 (Supp. 1989); burglary, Ark. Code Ann. § 5-39-201 (1987); possession of a controlled substance (cocaine), Ark. Code Ann. § 5-64-401 (1987); and carrying a weapon, Ark. Code Ann. § 5-73-120 (Supp. 1989). By agreement of the parties and upon approval of the court at an omnibus hearing, the battery and burglary offenses, which are the subject of this appeal, were severed from the other charges. At trial on March 21,1990, the jury returned verdicts of guilt for first degree battery and burglary, imposing sentences of twenty and ten years, respectively. As his sole point for reversal, the appellant argues that the trial court erred in failing to grant his motions for a directed verdict. Finding no error in the trial court’s decision, we affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id. The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982). When circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis; whether circumstantial evidence excludes every other reasonable hypothesis is usually a question of fact for the jury. Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982). It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985).
On appeal, the appellant posits error in the trial court’s denial of the motions for a directed verdict only with regard to the burglary conviction. Arkansas Code Annotated § 5-39-201 (1987) provides that“[A] person commits burglary ifheenters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Since specific intent, as well as illegal entry, are both elements of the crime of burglary, the appellant argues that independent proof of each is required and that the existence of one cannot be presumed from the other. The appellant does not present an argument on appeal with regard to the illegality of his entry into the school, but contends that there is no evidence other than that of his entry into Central High School which establishes his intent to commit an offense punishable by imprisonment. We cannot agree.
The evidence discloses that at approximately 7:45 a.m. on the morning of January 2, 1990, Ellen Linton, an assistant principal at Central High School, sustained serious physical injuries as a result of a stabbing incident that occurred in her office. January 2nd was the first day of classes after the Christmas break and Linton testified that she arrived at the school at around 7:30 a.m. for “zero hour,” otherwise known as advanced placement classes. Linton entered the school from Fourteenth Street by the library, the entrance designated as open for zero hour classes. She related that the only other entrance into the school at this hour was through the teachers’ parking lot. Linton explained that there were signs affixed to the doors directing persons seeking admittance to the building to enter through the main entrance. Linton stated that other than school personnel, the only persons authorized to be in the school at that time were students attending zero hour classes.
Linton testified that she was on her way to the library for coffee when the appellant approached her, a modern biology book in hand, and asked for help in finding the definition of physiology. She related that the appellant also asked her to write it down on a piece of paper he provided, but before she could finish, the appellant approached her and said, “Don’t make a sound!” Linton recalled that when she turned around she observed a knife in the appellant’s right hand. Linton described the knife as “a bread knife, about a twelve inch blade with a wood handle that angles down to a point in the end.” Linton remembered that the appellant pushed the door to, made her sit down and grimaced the entire time he was talking to her.
Linton testified that the appellant was jabbing her in the hand, and that as he got more irritated, she offered him money from her purse, but he was not interested. Linton determined that her only option to get out of the ordeal alive was to scream and possibly draw attention to herself from the students passing by her office. As she began to scream, the appellant came at her with the knife and stabbed her on the side of the head and face, while also beating and hitting her. Linton also related how the appellant got down on the floor on top of her and continued to stab her, this time in the back and left shoulder. When the appellant left her office she crawled to the phone and called for help.
Linton stated that after this incident she had an occasion to review the records of the students enrolled at Central High School. She explained that the appellant was not a student on this date. In fact, the appellant was withdrawn for nonattendance in November of 1989, and was supposed to re-register at Hall High School, but that he failed to do so. Linton concluded by stating that the appellant had no authority to be in the school on January 2nd at 7:45 a.m.
Maliaka Turner, an honor student, testified that she arrived at school early for an advanced placement class when she heard screaming, yelling and banging going on in Linton’s office. Turner recalled that after trying to open the door several times, a man stepped outside Linton’s office and attempted to shut it preventing her entrance. According to Turner, the man stated, “There’s a lady in there — There’s someone in there trying to hurt that lady.” Turner said that she shoved the man away and the door opened, whereupon she observed hair and blood all over Linton’s face. Turner stated that she had never seen the man before and that no other man was in the office other than the appellant. Turner identified the appellant at trial as the man leaving Linton’s office.
The appellant relies on the decision in Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), in arguing that there is no evidence that he intended to commit a crime punishable by imprisonment when he entered the school. In Norton, a burglary conviction was reversed where the appellant was found standing inside the doorway of an office building, which he had illegally entered and from which nothing was taken, speaking to his friends passing by. In Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988), we observed:
In Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), the court said that the United States Supreme Court’s decisions in Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432 U.S. 197 (1977), held that due process requires the prosecution to prove beyond a reasonable doubt every element of the crime charged. The Norton opinion also stated that specific criminal intent and illegal entry are both elements of the crime of burglary and that existence of the intent cannot be presumed from a mere showing of the illegal entry. . . . The existence of criminal intent or purpose is a question of fact for the jury when the evidence shows facts from which it may reasonably be inferred.
Id. at 307-09, 757 S.W.2d at 567-68. In Cristee, we affirmed the appellant’s burglary conviction as there was other evidence, such as his flight from the scene, from which the jury could have found that the appellant intended to commit a crime.
We are not unmindful of decisions in which burglary convictions have been reversed on the specific issue before us. See Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982); Norton v. State, supra. However, in those cases, there was no evidence other than the appellant’s illegal entry to sustain a conclusion that the entry was for the purpose of committing a punishable offense. In Wortham, the appellant was discovered standing in a doorway, but there was no proof offered that he had attempted to harm anyone, take anything or commit any other crime.
On the other hand, we have affirmed such convictions when there was evidence other than the appellant’s illegal entry that supported a finding of the requisite intent. For instance, in Oliver v. State, 14 Ark. App. 240, 687 S.W.2d 850 (198 5), we noted that the appellant had entered a building through a window that had been broken, wires had been cut and the appellant’s bicycle was found near the broken window. See also Cristee v. State, supra; Jimenez v. State, 12 Ark. App. 315, 675 S.W.2d 853 (1984); Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984).
Here, the appellant entered Central High School at a time when only zero hour classes were being held; he entered carrying a biology book and seeking help from the victim upon the pretense that he was a properly enrolled student; and, he was armed. Since intent is a state of mind which is not ordinarily capable of proof by direct evidence and may be inferred from the circumstances, it was permissible for the trier of fact to conclude that the appellant’s entry in the school was for the purpose of committing a punishable offense. See Henry v. State, 18 Ark. App. 115, 710 S.W.2d 849 (1986).
Adhering to the proof requirements set forth in Norton, supra, and considering the above testimony, there was substantial evidence from which the jury could have found that the appellant possessed a specific intent to commit an offense punishable by imprisonment.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Springdale Memorial Hospital appeals from a decision of the Arkansas Board of Review awarding unemployment benefits to Catherine Bar-ranger. Appellant contends that the claimant’s appeal to the Board of Review was untimely and that, in any event, there is no substantial evidence to support the Board’s finding that the claimant was discharged from her employment with appellant for reasons other than misconduct connected with the work. Because we find merit in appellant’s contention that the claimant’s appeal to the Board of Review was untimely, we do not address the second issue.
On February 10, 1989, the decision of the appeal tribunal was mailed to the claimant and her attorney. The opinion denied her claim, finding that she had been discharged from her employment for misconduct connected with the work. Although the Board’s review of an appeal tribunal’s decision ordinarily must be initiated within twenty days of the mailing date of the decision, Ark. Code Ann. §§ 11-10-524(a), -525(a) (1987), this claimant’s notice of appeal to the Board of Review was not mailed until October 2, 1989, almost eight months later. Pursuant to Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (1980), the Board of Review then conducted a hearing to determine whether the untimeliness of the appeal was due to “circumstances beyond the [claimant’s] control.”
The claimant testified that, upon receipt of the decision of the appeal tribunal, she discussed the matter with her attorney and instructed him to proceed with an appeal. She stated that he told her that he would and subsequently informed her that he had done so. She did not know why the appeal was not filed before October 2. Although called to testify, the claimant’s attorney merely noted that he did not have with him his file in the case, and his reasons for delay in filing the appeal are not shown in the record. On this evidence, the Board found as follows:
From the evidence, the Board of Review finds that the claimant’s appeal to the Board of Review was filed in an untimely manner due to circumstances beyond the claimant’s control and her appeal will therefore be considered timely. She entrusted her appeal to her attorney and the failure to file the appeal was due to circumstances beyond the claimant’s control.
The Board then reversed the decision of the appeal tribunal on its merits and awarded benefits to the claimant.
We conclude that the Board’s determination that the claimant’s reliance upon her attorney excuses her failure to file a timely appeal disregards the basic concept of the relationship between attorney and client. It is a rule of general application that a client is bound by the acts of his attorney within the scope of the latter’s authority, including the attorney’s negligent failure to file proper pleadings. See Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). In Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988), the court stated:
The rules of agency generally apply to the relationship of attorney and client. The editors of 7A C.J.S. Attorney & Client § 180, provide this summary:
[U] sually the general rules of law which apply to agency apply to the relation of attorney and client. [Citing White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931)]. Accordingly, the omissions, as well as commissions, of an attorney are to be regarded as the acts of the client whom he represents, and his neglect is equivalent to the neglect of the client himself. [Citing Blackstad Mercantile Co. v. Bond, 104 Ark. 45, 148 S.W. 262 (1912)]. Attorney’s acts are attributed to the client. Thus, in the absence of fraud, the client is bound, according to the ordinary rules of agency, by the acts, omissions, or neglect, of the attorney within the scope of the latter’s authority, [citing Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962), and Beth v. Harris, 208 Ark. 903, 188 S.W.2d 119 (1945)] whether express or implied, apparent or ostensible. In other words, whatever is done in the progress of the cause by such attorney is considered as done by the party, and is binding on him. . . .
296 Ark. at 204-05, 753 S.W.2d at 280. The fact that proceedings before the Board of Review are less formal than those in courts of law does not, in our opinion, alter the responsibility of a client for the acts of his attorney.
On the record presented, we conclude that the Board’s finding that the failure to file a timely appeal was due to circumstances beyond the claimant’s control is not supported by substantial evidence.
Reversed.
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Melvin Mayfield, Judge.
This is an appeal from the order of the trial court made after an appeal to this court, granting appellee’s motion for additional attorney fees. Neither party has suggested this matter should be decided by the Arkansas Supreme Court. We decide the case as we think it involves the application of statutes and settled court decisions.
Appellee National Cashflow Systems brought an action in circuit court to collect a debt alleged to be owed by the appellant Thomas Race. Appellee obtained judgment against appellant for the debt and was awarded $667.50 for attorney fees. Appellant filed an appeal and we affirmed the judgment of the trial court. See Race v. National Cashflow Systems, Inc., 30 Ark. App. 116, 783 S.W.2d 370 (1990). Our mandate awarded the appellee $75.00 as costs in this court on appeal.
The mandate was filed in the trial court on March 15,1990, and on March 22,1990, the trial court entered an order directing its clerk to deliver to the appellee “all monies” held as a supersedeas bond.
On March 29, 1990, appellee filed a petition in the trial court for “an additional award of attorney’s fees for the appeal and the subsequent collection of the supersedeas bond in this case.” And on April 13, 1990, the trial court awarded appellee an additional attorney fee in the sum of $727.50.
On appeal, the appellant contends the trial court erred in awarding attorney fees following the appeal because it was without authority to reopen the case and enter a new judgment for additional attorney fees. Appellant argues the costs awarded appellee in the mandate were paid and contends there was no authority for an award of attorney fees after the appeal.
In response, appellee contends that Ark. Code Ann. § 16-22-308 (Supp. 1989) provides the authority “for a trial court to award attorney fees to a litigant for legal expenses incurred before an appellate court.” That section provides:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
In a reply brief, appellant argues even if that section provides for attorney fees upon appeal, they should be requested in the appellate court.
In Buchanan v. Parham, 95 Ark. 81, 128 S.W. 563 (1910), the Arkansas Supreme Court reversed the judgment of the circuit court which awarded costs to the appellant. That case arose out of an election contest which was decided in Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024 (1908). Buchanan was the contestant and judgment in his favor was entered in circuit court. Our supreme court affirmed that part of the judgment which declared Buchanan to have been elected but reversed the judgment on other matters and rendered judgment in favor of Williams for costs of appeal. After rendition of the judgment in the supreme court, Buchanan filed a motion in circuit court to tax costs against Williams. The trial court rendered judgment in favor of Buchanan against Williams for the amount of costs. The supreme court stated the courts have no authority to give judgment for costs in contested election cases unless authorized by statute and held the judgment of circuit court awarding costs to Buchanan was void. The court stated:
This court rendered judgment against Buchanan for the costs of the appeal. The circuit court had no power to tax the costs of the appeal, or to enforce the judgment of this court against Buchanan. Parham’s remedy for the collection of his fee for making the transcript, which constituted a part of the costs of the appeal adjudged against Buchanan, is by enforcement of the judgment of this court. The judgment against Buchanan inured to his benefit, to the extent of the unpaid balance due him for making the transcript. He can apply here for taxation of his unpaid costs, or, if the same has already been taxed, he can apply to the clerk for a fee bill, which has the force and effect of an execution against the goods and chattels of the party against whom the costs were adjudged.
95 Ark. at 85.
Turning to the instant case, we have held that Ark. Code Ann. § 16-22-308 provides the authority for an award of attorney fees on appeal and that this court has the authority under the statute to award attorney fees to the prevailing party for services of his attorney on appeal. ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 571 (1990).
It has also been held that the appellate court can direct the trial court upon remand to award an additional amount for the services of the appellant’s attorney in the appellate court. Fitzgerald v. Investors Preferred Life Ins. Co., 258 Ark. 966, 530 S.W.2d 195 (1975).
And, in Hogue v. Hogue, 250 Ark. 102, 464 S.W.2d 67 (1971), the Arkansas Supreme Court said that where it had used its judicial discretion by deciding that liability for costs should be borne equally by both parties, the determination of the exact amount might properly be left to the trial court.
In Hogue, the judgment and mandate of the supreme court directed the cost of appeal be divided equally between the two parties. The cost statement attached to the mandate recited total costs of $291.50 which included a transcript or record fee of $71.50. There was no charge for the reporter’s transcription of the testimony because that item was not shown in the original record. Upon receipt of the mandate, the trial court entered a new decree conforming to the court’s opinion. Appellees filed a motion to set aside that decree and to permit them to show their actual costs. After a hearing, the trial court vacated its second decree and entered a third decree dividing equally the actual costs of $1,174.50. The supreme court affirmed the trial court’s retaxing of costs noting that it is not unusual for an appellate record to omit one or more items of costs and that the correction of such an omission is usually a ministerial matter involving merely a certification by the clerk of the trial court of the true amount of the costs, and upon that certification the appellate court clerk issues a new statement of costs to replace the one that first accompanied the mandate. The supreme court stated that although a different corrective process had been followed in that case, the right result was reached and the action of the trial court was affirmed.
Thus, in the instant case where the additional award of costs on appeal was not awarded at the direction of the appellate court, was not of a ministerial nature, and was for the services of the prevailing party’s attorney on appeal, we hold that the trial court was without authority to award attorney fees following the appeal.
There is also another reason for our holding. The mandate issued in this case simply affirmed the judgment of the circuit court and awarded $75.00 costs on appeal. There was nothing further for the trial court to do.
In the early case of Fortenberry v. Frazier, 5 Ark. 200 (1843), the court stated:
Appellate power is exercised by the Supreme Court over the proceedings of inferior courts — not by the latter on those of the former. The Supreme Court, except where bills of review, in cases of equity, and writs in the nature of a writ of error coram nobis, in suits at- law, may be prosecuted, possesses no power to review, revise, or reform its adjudications and opinions after the expiration of the term in which they are pronounced and recorded, unless they are suspended by an order made at that term; and they irrevocably conclude the rights of the parties thereby adjudicated. Whatever was before the Court, and is disposed of, is considered as finally settled. 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.
5 Ark. at 202.
Fortenberry was cited in Watkins v. Acker, 195 Ark. 203, 111 S.W.2d 458 (1937), where the supreme court stated that whatever is before it and disposed of must be considered as settled and the lower court must carry that judgment into execution according to the mandate of the appellate court.
For the reasons stated above, the judgment of the trial court is reversed.
Cracraft, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
On July 27, 1989, Arkansas State Trooper Kelly Watkins was told by his captain, George Riggs, that the state police had received an anonymous tip from someone in Little Rock that a man named “Jerry” would be leaving the Hot Springs area at approximately 3:00 p.m. The informant said that “Jerry” would be driving a black truck with “Woodline Motor Freight” in orange letters on it and hauling a shortbed trailer. The informant said that the driver would have approximately ten pounds of marijuana with him.
Trooper Watkins set up surveillance on Highway 70 East between Little Rock and Hot Springs, and at about 3:50 p.m. saw a Woodline freight truck heading toward Little Rock. He immediately stopped the truck. At Watkins’ request the driver presented his driver’s license and identified himself as Jerry Lambert. Trooper Watkins immediately advised Lambert of his Miranda rights. He then asked Lambert if there was any marijuana in the truck. Lambert said there was, went to the truck and got it, and gave it to the trooper.
Lambert filed a motion to suppress which the trial court denied after a hearing. Appellant then entered a plea of guilty pursuant to Ark. Code Ann. § 5-64-401 (1987) and was sentenced to six years imprisonment. On appeal the sole contention is that the trial court erred in denying the motion to suppress. We hold that the disposition in this case is governed by the decision of the United States Supreme Court in Alabama v. White, — U.S. —, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and that decision requires reversal here.
“Reasonable suspicion,” which is something less than probable cause, is required to constitutionally justify an investigative stop. See Alabama v. White, supra; see also Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988); Ark. R. Crim. P. 3.1. An anonymous tip, standing alone, will not ordinarily give rise to the reasonable suspicion necessary to justify an investigatory stop. See Alabama v. White, supra; see also Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).
The Court in Alabama v. White discussed the concept of reasonable suspicion at length:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . .Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.
— U.S. at —, 110 S.Ct. at 2416, 110 L.Ed.2d at 309 (citations omitted).
In White the police officer received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The officers went to Lynwood Terrace Apartments and saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers saw the defendant leave the 235 building and get into the station wagon. They then followed the defendant as she drove “the most direct route to Dobey’s Motel.” Just before the defendant reached the motel, she was stopped by the officers who, after obtaining her consent to search, found cocaine in the car.
In upholding the conviction the Court said:
Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.
If Alabama v. White was a “close case,” we cannot hold that the facts corroborating the tip in the case at bar are sufficient in quality or quantity, under the totality of the circumstances test, to give rise to reasonable suspicion. The only information that the trooper had at the time of the stop which matched with the anonymous telephone call was that he saw a Woodline Motor Freight truck on the highway between Hot Springs and Little Rock at about the time the caller said the truck should be there. In contrast to White, there was no confirmation of the departure point and the officers did not follow the truck to see whether it was, indeed, going to Little Rock as the caller predicted. The description of the vehicle here was also less precise.
Indeed, the facts in the case at bar do not compare favorably with those in Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988). There, Randolph County officers had received information from Missouri officers that Kaiser would be traveling through Randolph County in a gray or silver Lincoln, bearing the license number KLN 436, and carrying fifty pounds of marijuana. At trial the Randolph County Sheriff testified that the Missouri officers had told him that their information came from a confidential (rather than anonymous) informant whom they believed to be very reliable. See Kaiser v. State, 24 Ark. App. 19, 746 S.W.2d 559 (Cooper, J., dissenting). We upheld the circuit court’s decision based on arguments similar to those made by the state in the case at bar. We said:
The question of the reasonableness of a stop based on information received from an informant was reached in Adams v. Williams, 407 U.S. 143 (1972). In that case, police officers stopped a suspected drug dealer on the basis of an informant’s tip and the stop was proper in part because the information given by the informant was verifiable by the officer’s observations. In the instant case, the stop of appellant was based on information gained from an informant. Appellant’s vehicle appeared in the area within the predicted period of time, matched the description given, and bore the predicted license plates. Those details were sufficient indicia of the informant’s reliability to create a reasonable suspicion, permitting an investigatory stop of appellant’s vehicle.
In a unanimous decision, the Arkansas Supreme Court reversed. The court held that if the Missouri officers had not developed a reasonable suspicion of Kaiser based on the reliability of the informant, the seizures resulting from the stop could not stand.
Our conclusion is that under either the Arkansas Supreme Court’s decision in Kaiser or the United States Supreme Court’s decision in White, the facts in the case at bar are insufficient to constitute the reasonable suspicion necessary to justify an investigatory stop.
Reversed and Remanded.
Danielson and Mayfield, JJ., dissent. | [
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Larry D. Vaught, Judge.
This is an appeal from a divorce decree ordering appellant to pay $25 a week in child support. Appellant contends that the trial court erred in ordering him to pay child support beginning November 2, 2001, due to his ongoing incarceration. He also argues reversal because there was no evidence that he had any income upon which to base the child-support order and because the order did not comply with Administrative Order No. 10. We affirm.
Appellant Clarence Allen, Sr., and appellee Bertha Allen were married on February 14, 1972. The parties separated on February 11, 1998. Three children were born during the marriage. Appellee filed a complaint for divorce on April 27, 2001, at which time appellant was incarcerated. After a hearing on October 31, 2001, the trial court granted appellee’s complaint for divorce. A divorce decree was entered on December 7, 2001, which awarded custody of the parties’ only minor child to appel-lee. The court ruled that appellee was entitled to the parties’ mobile home, that appellant was entitled to visitation, and that appellant was to pay $25 per week in child support for the parties’ minor child beginning on November 2, 2001. From that decision, comes this appeal.
A trial court’s ruling on child-support issues is reviewed de novo by this court, and the trial court’s findings are not disturbed unless they are clearly erroneous. Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002). In reviewing a trial court’s findings, we give due deference to the court’s superior position to determine the credibility of the witnesses and the weight to be accprded to their testimony. Id. As a rule, when the amount of child support is at issue, we will not reverse absent an abuse of discretion. Id. However, a trial judge’s conclusion of law is given no deference on appeal. Id.
Appellant first contends that the trial court erred in awarding child support because he was incarcerated at the time of the divorce hearing. We disagree. In Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997), this court held that a child-support obligation need not be suspended due to the payor’s incarceration. There, the appellant argued that the trial court abused its discretion in refusing to completely abate his child-support obligation due to his imprisonment, which was a result of his being con victed of raping his daughter. We upheld the trial court’s decision on the ground of unclean hands because the appellant’s misconduct that led to his incarceration was perpetrated against a child for whom he owed a duty of support. However, we also stated that “equity will not come to the aid of one who of his or her own volition engages in criminal behavior and suffers the consequences which affect the ability to pay child support.” Id. at 294, 944 S.W.2d at 562. Although Reid involved a modification of support, the reasoning is applicable to this case.
Appellant cites two cases from other jurisdictions, which he contends hold that a child-support obligation should not be imposed when the parent was incarcerated prior to the imposition of a permanent child-support order. See Lewis v. Lewis, 637 A.2d 70 (Dist. Col. App. 1994) (holding that the rule that a voluntary reduction of income does not affect obligation to pay child support did not apply because there was no indication that the husband shot his wife with the intention to be imprisoned and thereby reduce his child-support obligation); Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291 (1987) (holding that an inmate is not liable for an arrearage that accrued during incarceration unless he became incarcerated in order to avoid the obligation or had other assets while in prison). While this exact issue has never been determined in Arkansas, Administrative Order No. 10 provides that income may be imputed to an unemployed payor of child support, and Reid upheld the trial court’s refusal to totally abate child support due to the appellant’s incarceration.
We must therefore examine the court’s award of child support in this case in light of the applicable version of Administrative Order No. 10. See In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. Appx. 581 (1998). Appellant contends that there was no evidence that appellant had any income upon which to base the initial support order. Appellee’s testimony merely indicated that appellant was incarcerated in a federal prison. Section III of Administrative Order No. 10 provides in part:
d. Imputed income: If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefore. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s lifestyle. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.
The supreme court in Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992), upheld the chancellor’s order directing the appellant to pay the minimum chart amount for retroactive child support where the trial judge recognized that there was no evidence of appellant’s weekly take-home pay for the relevant time period. Finding no error or abuse of discretion, the supreme court stated that the “[c]hancellor simply set the support at the minimum level required of an unemployed person.”
Similar to Barnes, here the trial court ordered appellant to pay the minimum chart amount of $25 per week where there was no evidence of appellant’s income or even if he had any income. Following the reasoning of Reid, supra, appellant of his own volition engaged in criminal conduct and thus decreased his earnings by his own choice. We cannot say that the trial judge abused his discretion in ordering appellant to pay the minimum amount of support required of an unemployed person.
Appellant finally suggests that the trial court’s order did not comply with Administrative Order No. 10 because there was no recitation of appellant’s income, the amount of support required under the guidelines, and whether there was a deviation from the family-support chart. The applicable version of Admin. Order No. 10 does not require that the order recite appellant’s income or the amount of support required under the guidelines. See In Re: Administrative Order No. 10 — Arkansas Child Support Guidelines, supra. In addition, this is not a deviation case. However, Arkansas Code Annotated section 9-12-312(a) (2) (Repl. 2002) provides:
(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
It has been held that a reference to the family-support chart is mandatory. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991); McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1997); Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).
While the order did not specifically reference the family-support chart, we hold that the trial judge in his bench ruling referenced the chart by ordering appellant to pay the minimum amount. The court stated: “The Court will order and direct that child support be set at the minimum amount of $25 per week commencing this Friday, November the ... 2nd and will continue each Friday hereafter until further order of this court.” Clearly, the court’s reference to the “minimum amount” was a reference to the minimum chart amount.
Affirmed.
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Per Curiam.
In this case, appellant alleged that an explosion, which destroyed her home on September 22, 1999, was caused by appellee’s negligence. Appellee had been to appellant’s home earlier that day to refill her propane tank. The explosion occurred just after appellant checked the lines in her appliances by running a Bic lighter over them. After a trial, the jury assigned eighty percent of the fault to appellant and twenty percent to appeb.ee. On appeal, appebant makes three evidentiary arguments: 1) that the trial court improperly excluded as hearsay her testimony regarding the contents of a message she left on appebee’s answering machine on the day of the explosion; 2) that the trial court erred in ahowing appebee’s current owner, Doyle Durdin, to testify that he would have done nothing differently than the service man who went to appebant’s house; and 3) that the trial court erred in ahowing appebee’s counsel to use a Bic lighter as a demonstrative aid during opening argument. A fourth argument concerns the propriety of the jury being instructed on the doctrine of “last clear chance.” Finahy, appebant makes a brief argument that the jury’s verdict was inconsistent because, whbe it found her to be eighty percent at fault, which under Arkansas law would preclude her recovery, it found that she sustained $15,000 in damages.
In our review of this case, we have discovered that appebant’s 444-page Addendum contains nearly 300 pages of material that bear no relation to the issues in this case or our understanding of them. For example, the Addendum includes 179 pages of medical records, but neither the amount of appebant’s damages nor her medical condition are at issue on appeal. Further, the Addendum contains eighty-one pages regarding the deposition testimony of appebant’s expert Rex White; however, there is no issue on appeal that involves White, who did not even testify at trial. Addition-aby, another thirty pages of the Addendum concern the value of lost property and lost wages or other matters that are not at issue on appeal. We also note that several pages of appebant’s Abstract are devoted to these same subjects.
An appebant’s Addendum shab include a copy of the order appealed from, “along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” Ark. R. Sup. Ct. 4-2(a)(8) (2002) (emphasis added). The appebant’s Abstract should consist 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.” Ark. R. Sup. Ct. 4-2(a)(5) (2002) (emphasis added). Appebant’s Addendum and Abstract fab to comply with these rules. The emphasized portions of these rules reflect an obligation by an appebant, in preparing her Addendum, to not merely copy the record but give some thought to whether the materials in the Addendum will be useful to the court in deciding the issues on appeal.
Although we are mindful that the decision of what to include in an Addendum or Abstract may be a difficult one and that counsel will often err on the side of inclusion, the Addendum and Abstract in this case contain an inordinate amount of material that cannot conceivably be said to bear any relevance to the issues on appeal or be helpful to our understanding of the case. Had appellant filed a proper brief, its current size would be reduced by nearly two-thirds.
For the reasons stated, and pursuant to Ark. R. Sup. Ct. 4-2(b)(3) (2002), we afford appellant the opportunity to file a substituted Abstract, Addendum, and Brief within fifteen days of the date of this per curiam.
Rebriefing ordered.
Roaf, J., dissents. | [
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Josephine Linker Hart, Judge.
Appellant, Ronald Joe West, was convicted at a bench trial of possession of methamphetamine with the intent to deliver, possession of drug paraphernalia, and misdemeanor possession of marijuana, for which he was sentenced to a total of seven years’ imprisonment in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in refusing to suppress items seized from his car. Further, he argues that the trial court erred by permitting the State to elicit hearsay from its witnesses and by accepting inadmissible evidence to establish appellant’s habitual-offender status. We affirm. .
The suppression hearing and the bench trial were held simultaneously. Officer Jason Hopkins of the Sherwood Police Department testified that on May 23, 2001, while he was parked on a parking lot, appellant’s wife, Brenda West, stopped and reported that appellant was following her and that she had a protection order against him. She showed Hopkins the protection order, and Hopkins determined that it was valid. Appellant drove by, and Hopkins stopped appellant’s vehicle. Appellant told Hopkins that he was not following his wife and that it was just a coincidence that they were in the same area. Hopkins told appellant that there was a protection order. Appellant, who was aware of the protection order, told him that he was not trying to harass her and that it would not happen again.
Hopkins also testified that other officers had told him that on May 18, 2001, appellant had contacted Stephanie Giunta, who worked with and was a friend of Brenda West. Appellant had called her home at all hours of the night wanting to know Brenda West’s location. Giunta told the officer that he had called at 3:00 a.m., and she was worried that something was going to happen. The officers were taking Giunta’s statement outside her place of employment when appellant drove by. Once .they stopped him, the officers saw next to appellant a pair of binoculars, a notepad, and a pen. The officers told him that if he returned to Giunta’s place of employment or near her residence on Brierly in Sherwood, he would be placed under arrest.
Hopkins further testified that around 11:45 p.m. on June 12, 2001, he received a call about a suspicious vehicle that had backed into the driveway of a vacant duplex on Stafford in Sherwood. The callers, who resided next door, stated that the car had been there off-and-on for two or three weeks, leading them to worry that the car might be involved in illegal activity. Lieutenant Norman Golden later testified that he spoke to the neighbors, who told him that they had seen the car in the neighborhood several times and had decided that if it was seen again and was parked, then they would call the police. Hopkins testified that Stafford intersected with Brierly, and upon arriving, he saw that the car was parked in a driveway directly across from Brierly on Stafford where there was a clear view of Giunta’s residence, which was one-half a block away. Hopkins turned on his spotlight, surprising appellant, who was in the vehicle. Hopkins noticed that next to appellant was a large, open briefcase and some binoculars.
While Hopkins did not recognize appellant initially, he remembered him when appellant told him his name. Appellant told Hopkins that he was looking for his wife. He said that he had been by her place of employment, and she was not there. He thought that she might be coming to Giunta’s residence because he believed that his wife had been staying at and visiting the residence and that he had backed into the driveway to wait for his wife. Appellant also stated that he wanted to talk to his wife because two days earlier he had an argument with her and had accidentally kicked a dent in her new car, and he wanted to fix it. Appellant told Hopkins that there was an order of protection that had been updated.
Hopkins then placed appellant under arrest for harassment and criminal trespass. Hopkins testified that he arrested appellant for harassment because appellant was aware of the protection order and had previously been warned not to go near Giunta’s residence. Hopkins further testified that he thought Brenda West was the victim of harassment even though he did not know whether she was at the residence. He did not, however, contact Brenda West or Giunta. Hopkins also testified that he did not arrest appellant for violating the order of protection because appellant could not show him a current copy of the order and because the dispatcher could not find it. At the conclusion of Hopkins’s testimony, the State submitted as evidence on the issue of probable cause the final order of protection. The order, filed May 31, 2001, provided that appellant was prohibited from contacting Brenda West. Further, the order provided that appellant was “enjoined and restrained from doing, attempting to do, or threatening to do, any act injuring, mistreating, molesting or harassing” Brenda West.
Appellant was transported to the police department, and Lieutenant Golden inventoried the vehicle. He found what was later determined to be approximately eleven grams of methamphetamine hydrochloride and one and six-tenths of a gram of marijuana. Also found was a sum of cash between nine and ten thousand dollars and a straw with methamphetamine residue.
Brenda West testified for appellant. She stated that after the protection order was entered, she never spent the night at Giunta’s residence. She also testified that she did not know on June 12 that appellant was outside Giunta’s residence and consequently she was not harassed that particular night. She further testified that Giunta was not home that night and likewise did not know of appellant’s presence. She admitted, however, that Giunta was a friend, that she would visit with Giunta at the residence, and that appellant was aware that she went over to the house. She also testified that the order of protection did not exclude appellant from Giunta’s residence.
Appellant first contends that the trial court erred in refusing to grant his motion to suppress the items seized from his vehicle. He argues that the police did not have probable cause to arrest him on either the charge of criminal trespass or harassment.
Arkansas Rule of Criminal Procedure 4.1 (a) (iii) (2003) provides that “[a] law enforcement officer may arrest a person without a warrant if. . . the officer has reasonable cause to believe that such person has committed any violation of the law in the officer’s presence [.]” “Reasonable or probable cause exists where there is a reasonable ground of suspicion supported by cir cumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected.” Jones v. State, 348 Ark. 619, 631, 74 S.W.3d 663, 671 (2002). Further, “[i]n assessing the existence of reasonable or probable cause, our review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction.” Id. The burden of demonstrating error rests on the appellant. Id. Also, “[a]n arrest shall not be deemed to have been made on insufficient cause . . . solely on the ground that the officer ... is unable to determine the particular offense which may have been committed.” Ark. R. Crim. P. 4.1(c); Yocum v. State, 325 Ark. 180, 188-89, 925 S.W.2d 385, 389 (1996); Crail v. State, 309 Ark. 120, 123-24, 827 S.W.2d 157, 158-59 (1992).
Even though Hopkins testified that he did not arrest appellant for violating the protective order, we conclude that there was probable cause to arrest appellant for the offense of violation of an order of protection. In pertinent part, “[a] person commits the offense of violation of an order of protection if’ after such an order has been issued and the person has received notice of it, “[h]e knowingly violates a condition of an order of protection. . . .” Ark. Code Ann. § 5-53-134(a) (Repl. 1997). Here, the order provided that appellant was “enjoined and restrained from doing, attempting to do, or threatening to do, any act injuring, mistreating, molesting or harassing” Brenda West. Appellant’s statement regarding his attempt to contact Brenda West, coupled with his statement that there was an updated order of protection, provided Hopkins with probable cause to believe that appellant was committing the offense of violation of an order of protection by attempting to harass Brenda West. As Rule 4.1(c) indicates, Hopkins’s inability to determine at the time of the arrest the particular offense that appellant had committed did not make the arrest illegal. Consequently, we conclude that because the arrest was valid, the trial court did not err in refusing to suppress the evidence seized from appellant.
Appellant next argues that the trial court erred in permitting the State to introduce hearsay testimony in three separate instances. First, we note that appellant acknowledges that the court did not rule on one of his hearsay objections. It is appellant’s burden to obtain a ruling, and we do not address an argument when there was no ruling made at trial. See, e.g., Alexander v. State, 335 Ark. 131, 133-34, 983 S.W.2d 110, 111 (1998). In the first of the other two instances, Hopkins testified, as described earlier, that the callers who lived next door had stated that a suspicious vehicle was backed into a driveway, that the car had been there off-and-on for two or three weeks, and that they were worried that the car might be involved in illegal activity. Appellant objected to the testimony, contending it was hearsay. The State replied that it went to “probable cause.” The court permitted the testimony, concluding that it was not offered for the truth of the matter asserted. In the second instance, Lieutenant Golden testified that he spoke to the neighbors and was told that the car had been seen in the neighborhood. Appellant made a hearsay objection, and the court overruled the objection.
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2003). An out-of-court statement is not hearsay if it is offered to show a course of conduct or basis of action. Nottingham v. State, 29 Ark. App. 95, 98, 778 S.W.2d 629, 630 (1989). Here, the testimony was offered to explain why the officers were investigating the parked car and not for the truth of the matter asserted. Because it was introduced for the purpose of showing the basis for their actions and was relevant to the issue of probable cause, which was challenged by the appellant, this testimony was not hearsay. Therefore, the trial court did not err in allowing its introduction. See Nottingham, supra (holding that testimony was not hearsay because it was introduced for the purpose of showing the basis for an officer’s actions and was relevant to the issue of reasonable cause).
Appellant also raises three issues regarding sentencing. During appellant’s testimony on his own behalf, he admitted in response to the State’s questioning that he had previously been convicted in federal court of possession of five hundred grams of cocaine with the intent to distribute. Appellant also admitted that he had been convicted of theft by receiving. Appellant then objected to the State’s questioning of appellant about the theft-by- receiving conviction, arguing that the conviction was more than ten years old and could not be used for impeachment. In response, the State remarked that it was “going for habitual purposes.” The court replied, “Yeah, I think it’s fair game.”
Upon the court finding appellant guilty, the State asked that the court consider his status as a habitual offender, noting that appellant had stated under oath that he had been convicted of two prior offenses. Appellant objected, arguing that it was improper to establish appellant’s habitual-offender status through his own testimony. The court concluded that appellant was a habitual offender with two or more prior felonies. At a subsequent hearing on sentencing, the State introduced into evidence the records relating to appellant’s prior convictions. Appellant stated that while he did not object to the federal conviction, he objected to the use of the 1978 theft-by-receiving conviction because he was sentenced under Act 378 and the conviction had been expunged. The court waived sentencing and asked the parties to submit briefs. At a later hearing, the court concluded that expunged convictions could be used to establish habitual-offender status. The court sentenced appellant to seven years’ imprisonment and noted that this was the “presumptive sentence range” and that the misdemeanor conviction would merge.
Appellant first argues that it was improper for the State to use his testimony at the bench trial to establish his habitual-offender status. When the State questioned appellant, however, appellant did not argue that the testimony could not be used to prove habitual-offender status, even after the State informed the court that the testimony was being elicited for that purpose and the court concluded that the testimony was “fair game.” Appellant’s failure to make a contemporaneous objection to this testimony precludes him from arguing on appeal that the trial court erred in admitting the evidence. Evans v. State, 310 Ark. 397, 398, 836 S.W.2d 384, 385 (1992).
Second, citing Rule 609 of the Arkansas Rules of Evidence, appellant argues that the trial court erred by allowing the State to impeach appellant with a conviction that was more than ten years old. Appellant’s argument is without merit. It is appar ent from the above-described colloquy that the State’s purpose in eliciting this testimony was not for impeachment but for establishing appellant’s habitual-offender status and that the court considered the testimony for that purpose. We affirm on this point.
Third, appellant argues that because the theft-by-receiving conviction was expunged pursuant to Act 378 of 1975, the conviction cannot be used for enhancement purposes. However, in Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984), the Arkansas Supreme Court concluded that a conviction expunged under that act may be used to enhance a defendant’s senténce as an habitual offender. We affirm on this point as well.
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Griffen and Baker, JJ., agree. | [
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Karen R. Baker, Judge.
A Cleveland County jury convicted the appellant of manufacturing methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine and sentenced him to prison terms of ten years and five years respectively. The trial court ordered him to serve the sentences consecutively and also suspended imposition of an additional five years for each conviction. The appellant challenges his convictions and sentences, arguing that the trial court erred by denying his motion for a directed verdict and by adding five-year suspended sentences to the terms of imprisonment decided by the jury. We affirm the trial court’s denial of a directed verdict; however, we affirm as modified on the second point because we agree that the trial court was without authority to increase the terms of imprisonment fixed by the jury, even though the additional imposition of sentence was suspended.
Appellant first argues that there is insufficient evidence to sustain a conviction because of the uncorroborated testimony of the admitted accomplices. The State responds that appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. The State urges that because appellant did not seek to have the trial court declare either of the witnesses, Ms. Harkins or Mr. Adams, an accomplice as a matter of law or submit the issue to the jury, he is precluded from raising the accomplice-corroboration rule on appeal. The State relies upon Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).
In Windsor, the supreme court explained that when a trial court does not find a witness to be an accomplice, and the defendant fails to request that accomplice instructions be submitted to the jury for consideration, the issue is not preserved for appellate review. Id. at 656, 1 S.W.3d at 24. It is clear from the record in this case that the court, the defense counsel, and the prosecutor all accepted the fact that these witnesses were accomplices. Defense counsel based her directed-verdict motion on the fact that the State had failed to provide corroboration as a matter of law. The prosecutor responded to the motion by specifically referring to the witnesses’ roles in the manufacturing of the methamphetamine. The court interrupted the prosecutor’s recitation with the question, “Where is the corroboration of the accomplices? . . . Of the accomplices’ statements. I mean, you can’t convict on their statements alone.” The colloquy continued, debating the sufficiency of the corroboration, and ending with the trial judge’s denial of the motion finding that there was sufficient corroboration of the accomplices’ testimony to move the case forward. The court unambiguously found these witnesses to be accomplices, regardless of the omission of the phrase, “the court finds these witnesses to be accomplices.”
The State further insists that even if the judge’s rulings are construed to mean that the court found the witnesses to be accomplices, that appellant’s failure to have the jury instructed that the accomplices’ testimony required corroboration independently precludes review. The State mistakenly imposes a two-part requirement on the Windsor clarification of accomplice corroboration. The supreme court in Windsor stated that “[a] defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Windsor v. State, 338 Ark. at 656, 1 S.W.3d at 24 (emphasis added). Accordingly, appellant’s sufficiency-of-the-evidence argument is preserved for appeal.
Although the argument is preserved, it fails. In Pickett v. State, 55 Ark. App. 261, 935 S.W.2d 281 (1996), this court held:
The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Gibson v. State, 41 Ark.App. 154, 852 S.W.2d 326 (1993). The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996); Gibson v. State, supra. The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Gordon v. State, supra; Gibson v. State, supra.
Pickett v. State, 55 Ark. App. at 264, 935 S.W.2d at 282 (1996).
In this case, evidence other than the accomplice testimony tends to a substantial degree to connect the defendant with the commission of the crime. At trial, Investigator Gary Young of the Cleveland County Sheriffs Office testified that on May 15, 2001, his office received a call from Randy Hurt, a property owner who complained that there were unauthorized occupants in his house on Adams Road. Investigator Young and a deputy accompanied Mr. Hurt to the residence, where they encountered Alisha Louque and Valerie Harkins. The two women agreed to allow Mr. Hurt and the police to inspect the inside of the house for damage. During this inspection, in one of the bedrooms, Investigator Young saw a “corner baggie,” which is commonly used to package methamphetamine, and residue that he believed to be methamphetamine. He subsequently asked Ms. Louque and Ms. Harkins to step outside whereupon he obtained their consent to search the house. Because the search of the house and the surrounding area uncovered the components of a methamphetamine laboratory, Investigator Young placed Ms. Louque and Ms. Harkins, and a third occupant of the house, Keenan Camp, under arrest. A fourth person, Lester Adams, was later arrested. As a result of information obtained during interviews of those persons, Investigator Young discovered more components of a methamphetamine laboratory, consisting of an anhydrous ammonia tank and an Igloo cooler containing ammonia, at the site of a dilapidated house near the house owned by Mr. Hurt. Also, as a result of those interviews, he developed the appellant as a suspect and arrested him.
At trial, the defense stipulated that:
the paraphernalia necessary to manufacture Crystal Methamphetamine was found on or about the location in question on Adams Road in Cleveland County, Arkansas — on or about May 15, 2001. The Defendant will further stipulate that traces of Crystal Methamphetamine were found on some of the drug paraphernalia items and that Crystal Methamphetamine was manufactured at that location on or about May 15, 2001.
Taken together, this evidence independently establishes the crimes of manufacturing methamphetamine and possession of drug paraphernalia.
Sufficient evidence also connects appellant with the commission of the crime. After his arrest, appellant gave a statement to the pohce in which he admitted to offering to drive to Little Rock to buy “pills” to manufacture methamphetamine and to giving Mr. Adams $80.00 in exchange for double the amount of methamphetamine that he would have been able to purchase on the street. He stated that, while in Little Rock, he, Mr. Adams, and Ms. Louque went to an Exxon Station and to Radio Shack and Wal-Mart where they obtained batteries and starting fluid, respectively. They returned to the house, where he helped unload the supplies and left. According to appellant, he returned later that day to pick up his share of the finished product. At trial, appellant claimed that the $80.00 he gave Mr. Adams was intended to help him pay his rent and to buy drugs, rather than purchase ingredients to manufacture methamphetamine. He acknowledged the Little Rock shopping trip, but claimed that he only bought batteries for a flashlight and that he was unaware of the items purchased by the other two. Finally, he claimed that, despite his initials and signature verifying its accuracy, he did not supply the incriminating information in his statement.
The trier of fact may believe all or part of any witness’s testimony and may resolve conflicts in testimony and inconsistencies in evidence. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Appellant’s statement clearly tended to connect him with the crime and the jury was free to believe him. Therefore, there was sufficient corroboration of the accomplices’ testimony and sufficient evidence to support the verdict.
For' his second point, appellant claims that the court was without jurisdiction to suspend imposition of an additional sentence against him. The jury’s verdict recommended a sentence of ten years and no fine on the one count of manufacturing methamphetamine. The jury verdict further recommended a sentence of five years and a fine of zero dollars on the count of possession of drug paraphernalia.
Sentencing in Arkansas is entirely a matter of statute. Arkansas Code Annotated section 5-4-103 (a) (1987) provides that “[i]f a defendant is found guilty of an offense by a jury, the jury shall fix punishment as authorized by this chapter.” Other parts of the statute permit a trial court to set the sentence, but only under enumerated circumstances, none of which apply to this case. See Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). Because the judge lacked statutory authority to increase the term of imprisonment, his action was unauthorized and illegal, and we modify the sentence by reducing it to the term fixed by the jury. See id.
The State argues that once the trial court sentences the defendant to a term of imprisonment according to the jury’s recommendation, that the trial court then has the power to add an additional term of imprisonment and suspend the imposition of sentence as to that additional term. The State relies upon Arkansas Code Annotated § 5-4-104(e)(3) (Supp 2001), which provides that “a trial court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment.” The State reasons that while Arkansas Code Annotated § 5-4-103(b) limits the trial court’s authority to fix punishment under certain circumstances, the statutes are no limitation on the court’s authority to suspend -imposition of additional terms of imprisonment, as it is the “court, and not the jury, [that] has the power to suspend imposition of sentence.” See Rhoades & Emmerling v. State, 270 Ark. 962, 968, 607 S.W. 2d 76, 80 (1980) cert. denied, 452 U.S. 915 (1981). It further argues that if we adopt appellant’s argument, we will render section 5-4-104(e)(3) a nullity.
We reject that argument. The judge’s suspension of the additional terms of imprisonment does not negate the fact that the judge increased the terms of imprisonment fixed by the jury. The trial court had no authority to increase the jury’s fixed term of imprisonment. However, this does not render section 5-4-104(e)(3) a nullity. It is the court’s function to impose a sentence, and it is the court’s obligation to exercise its discretion in the imposition of that sentence. See Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002); Blagg v. State 72 Ark. App. 32, 31 S.W.3d 872 (2000). A trial court may reduce the extent or duration of the punishment assessed by the jury if, in the judge’s opinion, the conviction is proper but the punishment assessed is still greater than, under the circumstances of the case, ought to be inflicted, as long as the punishment is not reduced below the limit prescribed by the law. Richards, 309 Ark. at 134, 827 S.W.2d at 156; Ark. Code Ann. § 16-90-107(e) (1987). In such a case, the court could reduce the term of imprisonment, then suspend an additional term of imprisonment, with the sum of the two terms not exceeding the jury’s original fixed term of imprisonment. Therefore, section 5-4-104(e)(3) is not rendered a nullity.
When an error has nothing to do with the issue of guilt or innocence and relates only to punishment, it may be cor rected by reducing the sentence in lieu of reversing and remanding for a new trial. Richards, supra; Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1970); Ark. Code Ann. § 16-67-325(a) (1987).
The sentences are reduced by modifying each term of imprisonment to the term fixed by the jury. The conviction is affirmed as modified.
Affirmed as modified.
Gladwin and Neal, JJ., agree. | [
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Andree Layton Roaf, Judge.
James M. Mason appeals the White County Circuit Court’s order changing custody of the parties’ two minor children to his ex-wife, America Ann Mason Hood. Mason argues that because his circumstances as custodial parent had not materially changed, the trial court erred in changing custody to Mrs. Hood even though her circumstances had radically improved. We affirm.
Mason and Hood were divorced by decree dated April 6, 2001. After a hearing, the trial court awarded custody of the parties’ two minor children, a boy born in 1997 and a girl born in 2000, to Mason. At the time, Hood had no job, had moved into a trailer with two other people, had no transportation, and had not completed high school. The trial court found that, because of the situation Hood was in, she was not in a position to take care of the children and awarded custody to Mason, who continued to reside with his parents and brother. Hood was not required to pay child support, and Mason was required to transport the children to Hood for visitation.
On August 20, 2001, Hood filed a petition for change of custody; the petition was heard on March 6, 2002, a year after the final divorce hearing. At the hearing, Hood, her new husband, Ricky Wayne Hood, and her mother, Carolyn Murrah, testified about the changes in.Hood’s circumstances. The Hoods married on March 22, 2001, and have a daughter who was born in December 2001. Ricky Hood has a two-year degree and is working toward a bachelor’s degree in engineering. He is employed as an electronics technician at an average annual salary of $50,000. The Hoods have a three bedroom, two bathroom home. Since the divorce, America Hood has obtained a GED, taken classes in computer skills, and was taking an ACT preparatory class. She stopped working in November 2001 to stay at home with her new baby and attended school at night, with plans to return to work when this child reaches kindergarten age. Ricky Hood cares for the Hood’s baby and the Mason children when they are there for visitation on the two evenings per week that Hood attends classes. Hood’s mother testified that Hood was depressed at the time of the divorce, but had turned her life around “one hundred percent” since then.
Hood further testified that since the divorce, Mason’s car had been repossessed and his home telephone disconnected. She stated that the children do not get the attention they need from him because they stay primarily with the grandparents. Hood also testified that she did not allow Mason to send clothes or other items with the children on their visitations with her because he was transporting roaches to her home in the bags, and her children had been bitten by roaches at the Mason home. However, Hood admitted that Mason had the same job, residence, and educational level that he had at the time of the divorce a year earlier and cited only repossession of his car and disconnection of his home telephone as changes in his circumstances.
Mason and his mother, Shirley Mason, testified on his behalf. Mason testified that his circumstances were unchanged since the custody hearing one year ago. He testified that he and the children reside with his parents and brother in a house with three bedrooms and one bath. This was also the parties’ living arrangements and residence during their marriage. His grandfather resides in a trailer behind his parents’ home. Mason’s son sleeps with him in the home while his parents and his daughter spend nights in the grandfather’s home because of the grandfather’s health problems.
In response to Hood’s assertion that his circumstances had worsened, Mason testified that his car had been repossessed because of the amount of work he had to miss in order to transport the children five hundred twenty miles round trip from Colt to Judsonia for Hood’s weekend visitations, that he had replaced it with a pick-up truck and that other than being late one time when the brakes went out on his car, he had not failed to comply with the court’s visitation transportation order. Mason testified that his family uses the telephone in his grandfather’s nearby trailer and that the phone in the house was turned off because they were getting prank calls at all hours of the night. Mason admitted that he still had roaches in his home but denied that roaches had bitten his children, and he stated that they had not been able to rid the house of them despite spraying every two weeks.
Mason’s mother testified that she takes care of the children while Mason is at work and that he spends a lot of time with them. She testified that the primary reason she quit her job was to care for her father, who had bypass surgery and has other health problems, and that she needs to stay at his trailer at night in case he needs assistance in going to the bathroom.
At the conclusion of the hearing, the trial court announced the decision to change custody to Hood. The trial court’s following statements from the bench are pertinent to our review of this case:
At the conclusion of the case last time I made the remark that I was reluctant to place these minor children with them, but, because of the situation with the mother, I felt I had no choice. I did so because they didn’t have any other place to go. I thought it would probably be best if they would be with their mother, but she simply wasn’t in the shape to take care of them, in my judgment, and I mentioned if she got over this situation and demonstrated a change in circumstances and got her feet on the ground, knew where she was going, what would be in their best interest, that it might be different.
The thing that disturbed me then was the dismal existence that these people had as a couple, living where they did, and I think it was inevitable that they split up because of that. The father had some problems at that time, he was in depression too, but I nor mally don’t take chances with kids if I feel like that they’re not going to be looked after, but she has made a remarkable change. I’m really a little surprised. I guess I’m quite cynical because I hear these things every day and Isee people every day, but there is not any doubt she has made a radical change in her life. She has married well in my opinion. I think he’s a fine man. They have a stable home. She’s improved her educational situation. She has a way to go, but she’s remarkably changed in that regard and her attitude and physical well-being are much better, so I think she has done exactly what I said she ought to do.
It’s been quoted to me that if there is not a change in the custodial parent, then you can’t do it. That may be true in some situations. I’m not sure it would apply to this case. I commend the father for hanging on, but there are some problems there. I don’t think they have prospects there in terms of their full potential, in terms of education. I mean the girl has rarely been mentioned during this entire hearing, and I think the father is very attached to his son, he’s sleeping with him, which I don’t think is a particularly good thing, and his mother is pretty much raising the girl. These kids are approaching school age, and they’re going to have to be prepared for it, and I don’t believe that they have been prepared for it, and I think that is something that has to be done.
I don’t know but what they’re not going to have is the same prospects that they, had over there, and that doesn’t mean he doesn’t love his children, but there is more to them than just loving them, we have to build their personalities, we have to build their hopes. These people, in my opinion, are still into paybacks to each other for the anger and wrongs that they committed to each other, and I think the kids are in the middle, and I don’t have any doubt they’ll be better off with her, so I’m going to find there is a change of circumstances, both positive in her behalf and the fact that things are not going as well as they should have in the other home, and so I’m going to change the custody.
The trial court’s written order changing custody further states in pertinent part:
The Court finds that there has been a material change in circumstances, namely the Plaintiff, America A. Mason Hood, has exhibited exemplary changes in her lifestyle which include securing her high school diploma through G.E.D. and securing a stable home. Her new husband seems to be a good man. He is a hard-working, decent man and able to fulfill the role of a husband and a father. He is sensitive to the needs of the children. The Plaintiff and her husband will provide an atmosphere for a better education for the children.
On the other hand, while the Defendant is a man doing his best, there are not good prospects for the welfare of the children if he keeps them. The girl is rarely mentioned by him. The Defendant’s circumstances have deteriorated; he has recently lost his telephone and transportation. His mother is the primary caregiver for the children and also cares regularly for the Defendant’s grandfather who lives next door.
The trial court awarded custody to Hood, with Mason to have alternate weekends and other customary visitation. Mason appeals from this order.
On appeal, Mason contends that his circumstances have not materially changed and that under Arkansas case law, the changes made solely by Hood are not sufficient to justify change of custody. Mason argues that while Hood has made positive improvements in her lifestyle since the divorce, these changes were insufficient to make a wholesale change of custody. Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree will be in the best interests of the children. Campbell v. Campbell, 336 Ark. 379, 384, 985 S.W.2d 724, 727 (1999); Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973).
In order to avoid relitigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order. Id. The only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Id.; Jones v. Jones , 326 Ark. at 491, 931 S.W.2d at 772 (1996); Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954) (stating that it is well settled that a decree fixing the custody of a child is final on conditions then existing and should not later be changed unless there are altered conditions since the decree was rendered or there were material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child). The party seeking modification of the custody order has the burden of showing a material change in circumstances. Jones, 326 Ark. at 491, 931 S.W.2d at 772.
In child custody cases, we review the evidence de novo, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding that the noncustodial parent’s remarriage, the custodial parent’s move, and the passage of time, when examined in the aggregate, supported a change in custody).
Mason relies heavily on Jones v. Jones, supra, to support his argument that the non-custodial parent’s remarriage and financial improvements are insufficient to establish the requisite changed circumstances. In Jones, the father remarried and filed for a change of custody of the parties’ children, citing, in part, his subsequent remarriage. Id. at 143, 78 Ark. App. at 394. The Jones court held that remarriage alone was not a sufficient reason to change custody. The court also stated that because the father was aware of the alleged change in circumstances at the time of the custody agreement, he could not use those changes as grounds to modify custody. Id.; see also Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). In Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999), the supreme court narrowed its holding in Jones, noting that its decision merely underscored the rule that changes in circumstances of the non-custodial parent, including a claim of improved life because of remarriage, are not alone sufficient to modify an order of custody. Morever, this court has refused to modify custody merely because one parent has more resources or income. Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318 (1982). However, Mason’s argument is unpersuasive.
We find the facts of this case to be distinguishable from those of the authorities relied upon by Mason. Here, the same judge who presided over the initial custody proceeding also heard the petition for change of custody a year later. In the first proceeding, the trial court clearly had serious reservations about placing the parties’ young children in Mason’s custody, based on the “dismal existence” and other circumstances in Mason’s home, and did so only because he concluded that Hood was in no position to have custody at that time. However, at the subsequent hearing, Hood demonstrated that she had significantly improved her circumstances in regard to her stability, employment, remarriage, pursuit of educational goals, and the ability to be a stay-at-home mother to her young children. The trial court found that the radical improvement in Hood’s circumstances, along with the fact that Mason’s already dismal circumstances had further deteriorated, justified the change in custody to Hood. The trial court stated that he did not have “any doubt” that the children would be better off with Hood. The trial court’s opinion was clearly based on more than simply economic factors. We cannot say that, under the particular circumstances of this cases, and given our deference to the superior position of the trial court on child custody cases, the trial court’s decision to change custody based upon a radical and positive change in Hood’s circumstances, coupled with evidence of a further decline in Mason’s already dismal circumstances, was clearly erroneous.
Affirmed.
Stroud, C.J., Baker, and Neal, JJ., agree.
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Terry Crabtree, Judge.
The White County Circuit Court terminated the parental rights of the appellant, Carla Browning, from three minor male children. The trial court also terminated the parental rights of Carla’s husband, appellant David Browning, from two of those children, who were his biological sons. On appeal, appellants contend that the trial court clearly erred in finding that they could not provide a safe and appropriate place to raise the children and in terminating their parental rights. Specifically, appellants claim that the trial court’s decision was unjustly motivated by appellants’ poverty and dirty house. We disagree and affirm.
Factual Overview
Carla Browning is the biological mother of the three children at issue in this termination-of-parental-rights appeal: J.C., born September 7, 1990; D.B., born November 4, 2000; and A.B., born June 14, 2002. David Browning is the biological father of D.B. and A.B. J.C.’s biological father was given notice of these proceedings by publication, and he did not appeal the trial court’s order. Carla’s next to the oldest child, R.M., is in the custody of her biological father, Tommy McMasters, and was not a subject of this case.
DHS became involved with the Browning family when Carla requested supportive services during a FINS case on November 6, 2001. At that time, A.B. was not yet born, and J.C. was an inpatient in a rehabilitative treatment center. On November 16, 2001, D.B. was placed in foster care after a seventy-two hour-emergency hold. On November 27, 2001, the trial court held a review hearing. On January 3, 2002, appellants stipulated, and the court found, that J.C. and D.B. were dependent-neglected. That same day, J.C. was placed in foster care. Review hearings were held on January 24, 2002; March 28, 2002; July 25, 2002; and September 19, 2002. A.B. was born on June 14, 2002. He was adjudicated dependent-neglected on September 19, 2002, but he was not removed from the home until October 15, 2002. The trial court held review hearings on October 22, 2002, and November 7, 2002. DHS filed a petition for termination of parental rights on November 25, 2002. The trial court held a hearing to decide the petition on January 30, 2003.
Ultimately on February 18, 2003, the trial court issued an order finding that appellants had failed to correct the conditions which caused removal of the children and that there was little likelihood that services to appellants would result in successful reunification. The court found that, after fourteen months since D.B. was first placed in DHS custody, appellants’ home was still deplorable and unfit for children despite the fact that the DHS had provided numerous services and contacts with the family. In regard to D.B. and J.C., the trial court based its decision on Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Repl. 2002) because both children were adjudicated dependent-neglected and had remained out of the custody of their parents for at least twelve months. In regard to A.B., the trial court based its decision on Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) (Repl. 2002) because A.B.’s parents “had his parental rights involuntarily terminated as to a sibling of the child,” in this case, D.B. The trial court also terminated the parental rights ofJ.C.’s biological father.
Standard of Review
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Bearden v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 208 (2000). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Arkansas Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J. T. v. Arkansas Dep’t Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
Pursuant to Ark. Code Ann. § 9-27-341 (b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). To conclude that a trial judge made a clearly erroneous decision, we must be left with a definite and firm conviction that a mistake has been made. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses, Johnson v. Arkansas Dep’t of Human Servs., 78 Ark. App. 68, 82 S.W.3d 178 (2002). Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Where there are inconsistences in the testimony presented at a termination hearing, the resolution of those inconsistencies is best left to the trial judge, who heard and observed these witnesses first-hand. Dinkins, supra.
A proceeding to terminate parental rights is a two-step process, requiring the trial court to find (1) that the parent is unfit and (2) that termination of the parent’s rights is in the best interest of the child. J. T., supra. Although the trial court did not actually use the word “unfit” in its ruling, the court clearly made a finding that appellants were unable to provide the type of safe, healthy environment children require. Such a determination by the trial court is a sufficient finding of appellants’ unfitness. See id.
Trial Judge’s Findings
At the hearing to terminate parental rights, the trial judge made the following findings:
The primary thrust of this case has been, and at every hearing it was made clear to [appellants], that the intolerably dirty condition of the home in which these children would potentially reside in was first and foremost before the Court. Yes, there were always issues with regard to income. There were issues with regard to parenting classes and counseling.. .. But at each and every hearing, the filth of your home, [appellants], was principally before the Court. Also, at every hearing since we’ve had that I can recall, as you have today, you transfer blame and fault to an extent that I’ve never seen a human do. You cannot accept responsibility. . . . This case is not about you being poor. There are people with little money and little means who provide appropriate, clean, sanitary homes for their children, and there are thousands of them all across, probably White County, if not the state. It’s not about you being poor. It’s not even really about a dirty house. Nobody is going to terminate your parental rights because you had a dirty house one day. What this case is about is your persistent refusal to take steps to remedy the problems with your home, irrespective of the substantial efforts on the part of the Department, CASA, and a lot of other people in this courtroom^]
[F]or fourteen months, [you] were told at every hearing that this issue of cleanliness and sanitary conditions [was] crucial to the ability of you to regain your children.
Aside from the monetary problems you have, aside from the fact that your attitude toward the Department has been less than cooperative, all of those things aside, the basic issue is you won’t keep a safe home because you won’t clean it up.
[T]he thought that continuing your participation in the lives of A.B. and D.B. could or would result in the behavior problems to the extent that J.C. has is something that is very scary to this Court. All three of these children deserve a safe home that they can crawl around on and play in the floor and sleep on a bed without worrying about the dangers that are apparent in your home, both inanimate and now I find live with rats.
Nine Review Hearings
The White County Circuit Court held nine review hearings between November 27, 2001, and January 30, 2003. We have reviewed and thoughtfully considered the testimony from each of the witnesses at all of the hearings. The following is a summary, in chronological order, of that testimony.
November 21 , 2001, Review Hearing
At the time of the November 27, 2001, hearing, Carla testified that she and David had lived with David’s family until they were thrown out. Carla stated that she has visitation with R.M. every other weekend but that she was “going to tell [the custodial father] to hold her because [Carla had] nowhere to keep [R.M.] when [Carla does] get her for the weekends.”
January 3, 2002, Review Hearing
On January 3, 2002, the trial court held a hearing, and Carla and David testified. At that time, the couple had acquired a home to rent. Carla explained that J.C.’s biological father, Delbert Daniel Hayden, paid child support every two weeks. His last known address was in Pueblo, Colorado. At this hearing, J.C., who had been in a rehabilitative treatment center, requested to return to his mother.
January 24, 2002, Review Hearing
At the January 24, 2002, hearing Carla testified that she was pregnant and that her baby was due to arrive around June 23, 2002. She stated that she worked at McDonald’s and got paid every two weeks. David stated that he expected to be hired as a field laborer at a farm in the next two weeks. The couple had no running water in their home, but David speculated that he could borrow $100 to have it turned on in about a week.
March 28, 2002, Review Hearing
At the March 28, 2002, hearing David testified that he was still unemployed although he had part-time work at one point. Carla commented on David’s inability to find a job by saying, “[HJonestly, I don’t know how much job hunting he does when he leaves [home]. I’m going to be honest and say he doesn’t do very much, but he does job hunt, but he doesn’t do enough to satisfy me and the courts.”
July 25, 2002, Review Hearing
On July 25, 2002, Carla testified at the hearing that the infant, A.B., has “some health problems. He’s on a heart monitor right now.” She stated that when her maternity leave expired she would return to work at McDonald’s. At the time of the hearing, David had been employed at Dixie Café in Searcy for one week on a “trial basis.” Carla admitted that they were still behind in their rent. She claimed that they had their utilities turned on in the home.
September Í9, 2002, Review Hearing
On September 19, 2002, the trial court held another hearing, and Carla stated that a daycare worker had to take her infant’s car seat apart and wash it because it was dirty with oil and grease. Carla explained that the child’s dirty clothes and fingernails may have resulted from his greasy car seat. Carla also explained that she was seeking new employment at a nursing home in Beebe and would be in training for that position.
J.C. testified, “I’m not trying to say this to make my mom feel bad, but I love my mom but I don’t want to go home with her, because I don’t want to live like they are living now.” J.C. stated that he did “not have a reason for his [behavior problems] at school. I am on medication. I am taking it.”
October 22, 2002, Review Hearing
At the October 22, 2002, hearing Jody Hall, a child-maltreatment assessor with DHS, testified that she received a report of neglect regarding A.B. on October 9, 2002. As a result, she visited the appellants’ home and discovered that the family had virtually no heat. Hall found one space heater in one of the bedrooms. Hall also stated that the home needed to be cleaned. She testified, “There’s just junk and there’s trash on the floors. . . . It’s a dirty kitchen, dirty living room. . . [I] am concerned with the dirt and trash on the floor, and [A.B.] is going to be able to start rolling over soon and then we are into the crawling mode, and there were just hazards for him in the floor.” Hall visited with David and told him that he needed to correct these things. Four days later, Hall returned to the home and talked to Carla. Hall advised her that DHS decided to place A.B. in care because the couple did not have the heat turned on in the home. According to Hall, she told Carla that the house was still not clean and contained hazards to the infant. Hall advised Carla of DHS’s concern for A.B.’s “health because he was congested and there was not heat in the home and the temperatures were dropping.” Carla responded that she hoped to get another heater by the end of the week. Hall also discovered the infant’s bed under a window and feared that its placement increased the child’s chance of remaining cold. Hall stated, “I know that [the infant] was sick because I observed it. He had dry, crusty [mucous] on his nose from where he was congested and had a runny nose and was obviously sick. ... I was concerned] that he was already sick and there was no adequate heat to keep him warm.” Hall stated that Carla and David had been delinquent on the gas bill since June and that it would cost $132 to have the gas turned on again. Hall testified that she did not feel that the home was safe for the child.
During Hall’s testimony, counsel asked her to discuss an affidavit prepared by Heather Irwin, a previous case worker for the Browning family. The affidavit noted that Carla and David were behind in their rent for two or three months. The affidavit also mentioned Irwin’s warnings to the couple about leaving A.B. with inappropriate “babysitters.” According to the affidavit, DHS verbally advised Carla to stop leaving A.B. with a neighbor who had three teenage children. The neighbors were deemed inappropriate babysitters because they could not respond to A.B.’s heart monitor and because the police had been called to that home several times for domestic disputes. Nonetheless, appellants continued to leave A.B. with neighbors.
Irwin’s affidavit noted that David failed to complete his parenting classes. According to the affidavit, David would sleep through the classes he attended. The affidavit stated that the home was “unsanitary” and that on two occasions DHS had come to the Browning’s home and cleaned it.
Next, Charles Arnold, a family service worker from White County, testified that he became a caseworker for D.B., J.C., and A.B. in late September 2002. He stated that a case plan had been prepared for the family and that it had been explained to them. The case plan included parenting classes, budgeting classes, and home cleanliness. He stated that he visited the Browning’s home numerous times and even on a “good day” in the home, the “general conditions of the house [had] not improved at all.” Arnold took photographs of the home’s condition on the day DHS removed A.B. from the home. He said that the conditions in the home looked even worse than the photographs reflected. He described piles and “baskets full of sopping wet clothes.” Arnold saw a “white-handled sharp steak knife” on the floor with rags and dirt. According to Arnold, he had taken photographs of the home at an earlier time. He stated that if he compared the two sets of' photographs, he could see no improvement. Arnold remarked that he had “not seen the home on [any] occasion when it [was] fairly clean.”
Arnold testified that during a visit to the appellants’ home, he found only light sheets in [A.B.’s] bed but no blankets. He noted that “bills need to be paid for any type of permanency in the home, because [Carla] told me that they were three months behind on their rent.” Carla told Arnold that in three months they had only paid twenty-five dollars towards their rent. Arnold was confident that Carla understood how DHS sought to assist her family in improving its situation.
On cross examination, Arnold testified that he had visited the appellants’ house the week before and the day before the hearing and that they did not have the gas turned on. He stated that Carla told him that she used different things to keep the baby warm, including a headrest from a car seat. According to Arnold, DHS informed Carla that a headrest would not be appropriate because the baby could get his face stuck in it by rolling over. However, Arnold observed Carla deliver the baby to daycare with a blanket. Arnold testified regarding concerns of caseworker, Emily Myers, who worked with the appellants’ family prior to Arnold. According to Arnold, Myers reported problems at the daycare regarding A.B. being delivered without proper bathing and clothes. There were also concerns about the baby’s heart monitor that still remained at issue.
Carla testified on direct examination that the gas was turned on the day before the hearing. She recalled that on the day DHS took A.B. into custody that the gas was not on. She stated that in “the bedroom where we had the small heater[,] we had the sheets over the door to keep the air in that room, it was warm in his room, in our room. But yes, it was cool in the rest of the house because the sheets were down in that part of the house.” She testified that when she takes A.B. to daycare “he is clean. He is fed. He does have a clean diaper. Some of the time I have to stop and feed him on the way there.” Carla explained that she does laundry-in her home but that DHS “did catch me on a day when I was doing laundry.” She claimed that she cleaned her house. Carla stated that she had taken A.B. for medical care several times but that he “constantly has a running nose.”
According to Carla, she had completed training to be a nurse’s assistant. She stated that she would be hired by a retirement center in Beebe. She said that A.B. has a heart monitor because he has a sleeping disorder. She testified that A.B. could stop breathing in his sleep and that she is required to keep the monitor on him at all times.
Carla testified that the last time she worked was one day “last week or the week before.” On that occasion, she only worked four hours at McDonalds. She said that McDonalds had failed to return her to her weekly schedule after her maternity leave.
Upon examination by the court, Carla admitted that the couple had three dogs and that she regularly bought food for them. On re-cross examination, she stated that her husband was working for a construction company in Little Rock where his brother served as the foreman. She said that he makes $8.50 per hour and that he is scheduled to work forty hours per week. She also said that he does not get paid if it rains and he does not work. Carla admitted that she had not taken her state licensing test to be a CNA.
' Johnna Collins testified that she works for DHS and provides services to families. She stated that she helped clean the Browning’s home on two occasions. She stated that the appellants’ landlord decided to evict the family because “the house was, as he put it, filthy.” At that time, DHS was trying to help the family maintain the home. Collins recalled visiting the appellants’ home the first time and described the interior as filled “approximately up to my chin, and I’m almost six [feet tall], just covered in boxes of just broken junk. I mean, for the lack of a better term, just junk.” Collins testified:
We asked the family what they needed us to help with. At the time, [Carla] was pregnant, . . . we set up a meeting with the landlord, who came out and met with us. He was very frustrated with the family. The landlord was in agreement to let them stay there rent free until the end ofjanuary if we would go out and assist them with cleaning the home and the Department agreed to paint and do some repair work in the home to make sure they would have a home until they both became employed. At the time, they were not employed at all. Myself and [my supervisor] at the time, went to the home early, I believe on a Wednesday morning ... in December. We cleaned the entire home with [Carla’s] permission. . . . [Carla] and David did not do anything, but they did walk through and tell us what we could do.... [A]s a matter of fact, [they] were entertaining a dinner guest at the kitchen table while we were clearing out boxes and even made a joke about maybe we could go help the other family after we finished theirs. We cleaned it completely. It took us three days, and it took us contacting several city officials in Beebe to figure out where to dump the items, there were so many.... It took about eight loads [to a city dumpster], just to give you an idea of how much stuff there was. We finally got that done. We were very excited. We had a cleaning crew from Harding that we had gotten together that was going to come out and help us paint and make it pretty and make sure that they . . . had their rent covered.
When we went out to assess the situation Monday, the house looked like we had never been there. We were pretty surprised. I remember [my supervisor] and I were there together.We asked what had happened. All these boxes we had moved out, and all of the sudden there was — as if we had never been there, just piles and piles of boxes. It was different stuff. And we found out that what they had done is, they had more stuff than what was actually in the house but they had put on the back of a trailer and covered in a tarp. So the second we got everything cleaned and gutted out the first time, they just went back in and unloaded all the other stuff. . . .We had scheduled the painting party, we had to go out and redo it again. And we did it [a] second time.Then, Harding came in and helped us get everything painted and the landlord agreed that they would owe rent beginning in February. So, we’ve done that twice at this point. The last time I saw the house was about a month ago. But I did continue working with the family from that point until about a month ago. It did deteriorate within a two-day period.We went out the second time we cleaned it, we went back out a couple of days later, and it was just clutter, open cans, open food containers just laying everywhere in the kitchen, dishes not being done at all, bathroom was just covered in dirty laundry. [Carla’s] reasoning was that they had no water, so they had no way to clean. So; I assisted them with putting them in touch with CAPCA, who then made a payment on all of their utilities, because currently they had no utilities.They had lost everything.And so CAPCA paid electric, gas, and water, huge large amounts on each, leaving just a small amount on each for the family to pay. And to my knowledge, the last time I contacted the utility companies was about a month and a half ago, and they still weren’t current on any of those.
Collins testified in regard to the babysitter issue. She stated that first she and her supervisor met with the neighbor, an eighteen year old, who was “being put in charge of the child.” Then Collins and her supervisor met with Carla and David and informed them about the specific concerns with the neighbor babysitting A.B. They explained that the police had been called to the neighbor’s home on several occasions for domestic disturbances and that the eighteen year old’s remedy for solving the child’s fever was to “hold the child in front of an air conditioner.” Collins told the couple that the child would be at risk in the neighbor’s home, and the Brownings agreed to remedy that problem. Collins stated that any time she spoke with [the Brownings], Collins documented the conversation. She testified that this conversation would have been documented in the “[computer] system at the office.”
November 7, 2002, Review Hearing
The next hearing occurred on November 7, 2002. Brenda Crownover, a social worker and treatment therapist with Treatment Homes, Inc., testified regarding J.C.’s therapeutic foster care. She testified that she works with J.C. and his “treatment” or foster parents. She stated that, although J.C. had behavioral issues, he wanted to see his family. She also stated that J.C.’s behavior had deteriorated and that he had even been aggressive towards his foster mother. Crownover said that J.C. “was here in court last time. He heard all of the testimony that was given, and he has a lot of information from [Carla] that she talks with him about all these issues before the court.” Later, Crownover remarked that the things Carla tells J.C. “are not actually the things that are going on in the case.” Crownover believed that Carla is “setting up some false hopes in [J.C.]” Crownover feared that J.C. could regress to the point that he would need to be hospitalized on an inpatient basis again. Crownover recommended, that during visitation with J.C., Carla should shift her focus to J.C.’s needs. Crownover stated, that after visitation, J.C.’s overall behavior deteriorates. However, Carla testified that she would like to see her children more.
January 30, 2003,Termination-of-Parental-Rights Hearing
On January 30, 2003, the trial court held a hearing, and Heather Irwin, a placement team specialist with DHS, testified that she worked as a case worker for D.B., J.C., and A.B. from November 26, 2001, through September 3, 2002. When Irwin became the case worker, D.B. was already in foster care. Irwin stated that D.B. was brought into foster care on November 16, 2001, for inadequate housing and neglect. She stated that, at that time, J.C. was in a residential treatment center in Little Rock. Upon J.C.’s discharge from the treatment center, he was not able to go to the appellants’ home, so he entered foster care on January 3, 2002. Both D.B. and J.C. were adjudicated dependent-neglected on that day.
Irwin testified that she worked to provide services to appellants’ family to correct the problems that caused the children’s removal, including services such as food stamps, medicaid, budgeting, marriage counseling, individual counseling, and house cleaning. Irwin stated that Carla kept things in her home “that weren’t necessary, such as old washing machines, multiple refrigerators, appliances.” Irwin recalled assisting Collins in the extensive cleaning of appellants’ house. Since that time, Irwin observed appellants’ house filled with “large bags of clothing, just sometimes the whole hallway would be blocked off. Sometimes there would just be large amounts of laundry in the bathtub. We are talking — the beds would be covered with miscellaneous items. I mean, I don’t even know how to explain it, but I mean everything you could think of would just be laying there.”
Irwin stated that at the time she prepared a case plan for the Browning family, Carla was pregnant with A.B. The case plan included keeping the house clean, keeping the utilities turned on, and looking for employment. Irwin testified that Carla and David attended only one marriage counseling session; that Carla completed parenting classes; that David did not complete parenting classes; and that they were unable to maintain a clean home on a regular basis. Irwin stated that, in her opinion, “the services that I was providing to the Brownings, it was doing no good.” In fact, Irwin said that she could not even recommend weekend visitation. She stated that appellants’ parental rights should be terminated because “they have been unable to maintain stable employment, which means stable income coming into the home to support themselves along with three children. They also don’t have a home that is suitable for children to be able to live in.... [T]he bedrooms that the children would be staying in would have, like I described, the clutter, the junk, the extra material in the bedrooms that sometimes I couldn’t even walk into.” Irwin stated that Carla was not cooperative with DHS’s efforts to help her budget finances.
Irwin signed an affidavit on November 19, 2001, when appellants and D.B. were living in a van. Irwin recalled that “D.B. had lost his medication because the parents had no refrigeration for the medicine.” After Carla and David rented their house, Irwin visited and described it as “unsafe for small children to live in during the time I had the case, at least at times. . . hallways would be blocked . . . dirty dishes, old food laying around at times. . . no room for the baby — for D.B. to crawl around or anything like that.”
Irwin stated that she would tell Carla and David specifically what needed to be done with the home in order for her to allow weekend visitation. She said, “They would appear to understand what I was telling them, they would say that that would be done when they had time or when they felt like they weren’t tired and able to do that. And when I would go back and it hadn’t been done, I would ask them why they didn’t do it. What they would say is, excuses of work and being tired.” Irwin recalled that the home was never clean enough for any significant length of time to justify visitation. Irwin believed that neither Carla or David “were trying.” She said that at times, it looked as if appellants had “loaded up flat bed trailers full of junk and moved it into their house.” For the majority of the time that Irwin worked on appellants’ case, the children were in foster care.
Also at this hearing, Johnna Collins, a social service aid, testified that she was assigned to the family’s case when it first opened on November 6, 2001, and that she worked with them through September 6, 2002. Initially, Collins became involved with the family when Carla requested DHS’s supportive services during a FINS hearing. However, after requesting help, Carla evaded the caseworker for several days and then informed the case worker that she wanted no visits from DHS. Collins made her first contact with the family on November 15, 2001. Collins recalled that, at that time, Carla and David lived in their van with D.B., and that DHS had a difficult time locating them. Collins recalled seeing the couple in their van on a bitterly cold night, and D.B. was wearing “a filthy t-shirt and a dirty diaper. ... He had a fever. He had a runny nose.” The following day, D.B. was removed from their custody, and the child had “head lice the size of ants that were crawling out of his head that we literally pulled out and killed in the floor at [DHS].” Collins stated that David said that they had taken D.B. to the doctor, but that the child had not received any of his medicine because it required refrigeration, and they did not have any. David told Collins that, as a result, they threw the medicine away.
Sam Boyce initially served as the case worker, and he asked Collins to provide parenting services, housing assistance, food stamps, medicaid, and other services to the Brownings. Collins testified that she provided all of those services. However, the appellants remained homeless until the end of December 2001. According to Collins, she gave appellants homeless-shelter contact information, but they did not want to pursue homeless-shelter assistance because they preferred to stay in their vehicle. When D.B. was removed from their custody, the van was repossessed. Collins stated that appellants then began living in their truck.
Collins further testified that appellants located a house to rent, and the landlord agreed to let them stay there for free until they found employment. In the meantime, Collins gave the appellants job listings, assisted appellants in re-establishing food stamps, and sought medicaid for prenatal care for Carla’s unborn child. Three weeks after the appellants moved into the rent house, Collins met with the landlord because he was ready to evict appellants as they had packed the yard and house with junk. The landlord also told Collins he was upset because the. appellants had made no payment to him. As Collins provided job listings to appellants, they would respond by saying that nobody was hiring. David complained to Collins that he was looking for farm work and “didn’t want to just go anywhere else.” Collins said that she wanted to find employment for them to start a financial income. She tried to explain the importance of not being evicted for non-payment of rent. Eventually, the landlord gave the appellants ten days to remove the junk in the house and yard and clean the premises or else be evicted. After Collins, Irwin, and their supervisor met with the landlord, “they drew up a list of things” for appellants to do in order to stay in the house. They explained to the appellants that the landlord had limited them to ten days to remedy the situation. Collins returned to appellants’ home two days later and discovered no progress had been made in spite of the fact that neither Carla or David were employed. In fact, Collins stated that there was more junk on the premises than prior to the meeting with the landlord. Collins further stated that they were trying to get the Brownings to do the necessary cleaning but that it was apparent that they weren’t going to do it. As a result, Collins and her supervisor spent a full day cleaning the back bedrooms in appellants’ home. Meanwhile, Carla and David “entertained a dinner guest.” Collins recalled, “They were eating while we were back there cleaning. We had to ask them to move their chairs so we could move the boxes through the kitchen.” Collins described the cleaning that she and her supervisor did as “gutt[ing] everything out” and that they had to call several city workers to have them haul things away.
Collins said that only days after they completed their cleaning, appellants emptied a trailer full of junk from their backyard and refilled the bedrooms and hallway. Collins stated that the landlord contacted her by phone and was very angry because the Brownings had undone everything that DHS had accomplished. Consequently, Collins agreed to a second cleaning at the home to satisfy the landlord. Even after the second cleaning, Collins visited appellants’ home and discovered “open food containers, food laying [sic] around, dirty dishes. . . . stacked to where they were just going to be falling off. The bedroom, the bathroom, and we did discuss hygiene a lot, and that’s why I’m bringing up the bathroom. It was just full of wet clothes that were in the bathtub and all around the bathtub and all around the commode.” Collins described the back two bedrooms where David built a partition with paneling to allow him to put additional “junk” in the back “that was stacked over our heads.” Collins said that the majority of the progress that was made in cleaning appellants’ house was done by DHS.
In regard to parenting classes, Collins said that she offered and taught parenting classes to appellants in their home for their convenience. Carla completed her classes, but David did not because he slept through them. Collins stated that she “didn’t think it was appropriate at all for me to continue talking to myself while he slept.” During visitation with the children, Collins observed that appellants completely ignored J.C. and only interacted with D.B. During visitation, appellants would beg the McDonald’s manager for food for themselves, not for the children. Also during visitation, Carla would make statements to J.C. that DHS could not be trusted, that DHS was a bunch of liars, and she probably would never see him again. According to J.C.’s foster mother, J.C. had behavior problems following those visits.
Collins stated that the White County DHS workers had visited or made attempts to visit the Browning family 221 times since November 6, 2001. She further stated that several other counties had provided transportation assistance to the family on multiple occasions. Collins opined, “I don’t know of anything else that the Department needs to do in addition to what it’s already done. I don’t know what else we can do.” Collins said that her last contact with the family was on August 28, 2002.
Collins stated that when A.B. was born, the family home did not have working utilities. Appellants had made arrangements to stay with a man, Mr. Holly, whom they had stayed with sporadi cally during their homelessness. Holly informed Collins that the couple could stay until their utilities were turned on again. Collins recalled that ultimately home health nurses reported problems with appellants’ rental home and A.B.’s nutrition, which worsened until A.B. was removed from the home.
Next at the hearing, Bill Stoecker, a social service aid for DHS, testified that he was assigned to the Browning’s case on September 6, 2002. He described the interior of appellants’ house as “filled with clutter.” He saw “clothes piled up in the bathroom. You couldn’t even see the tub, the bottom of the tub, all the way up above the rim of the tub was just filled with clothes, clothes scattered throughout the bathroom and back bedrooms.” Stoecker described the back bedrooms as “filled with boxes of miscellaneous items, anything from old frying pans, coffee pots, just basically anything you could find was in those rooms.” He recalled that the kitchen “was overfilled with dishes piled as high as the sink could hold them, dishes scattered throughout the entire counter top. The kitchen table was unseen [and covered] with trash [and] food that had been left on the table that was being consumed by flies. There was trash overflowing out of the trash can itself, crushed soda cans laying on the floor, bottles on the floor, cigarette butts, cigarette wrapper things on the floor from whatever, candy wrappers on the floor, half-eaten food lying on the floor.”
Stoecker described the living room as having “literally hundreds of metal coat hangers lying around, clothes piled on every piece of furniture they had. David would leave his tool belt lying around and nails would spill out onto the floor.” Stoecker told the couple, “you need to either find a suitable place for [the clutter] where [it] is not in the way of everyday living, or you need to get rid of [it]. The trash needs to be taken out, needs to be picked up off the floor. The floors need to be swept, cleaned. The coat hangers need to be taken off the floor for the child.” Stoecker explained to the Brownings that “if the child was present and the child was crawling around, he could injure himself. The same thing with like the nails, the crushed Coke cans on the floor. If you have a child in the home that’s crawling, walking, could step on, pick up, choke, whatever. Just dangerous items for the child.” Stoecker testified that appellants agreed to all that and understood what needed to be taken care of before the children could return to the house.
Stoecker stated that he returned to the home a week later and found that appellants had “a few of the items taken care of’ including moving the hangers from the floor to the sofa. However, Stoecker stated that there was “no major improvement. The home was never to the point that I could recommend that the children be returned to the home.” Stoecker said that his visit to the house was on January 22, 2003, eight days before the hearing. On that day, he took photographs of the home.
In regards to budgeting, Stoecker stated that he told appellants ways that DHS could help with managing their income. He suggested appellants use food stamps, but Carla told him that the food stamps had “been turned off.” Stoecker further suggested that he help Carla refile for food stamps, but she stated that she would take care of it. According to Stoecker, Carla complained to him that she was having trouble budgeting because her husband would “spend nearly half his check even before he gave it to her, and that she was unable to control his spending habits.” As a result, Carla believed that it would not be a good idea for Stoecker to help with budgeting. Later, Stoecker offered again to help with budgeting, but Carla replied that a member of her church who owned a business had volunteered to help, so Stoecker’s services were not needed. Yet, Stoecker testified that appellants continued to remain in arrears in their rent. At the time of the hearing, they were two and a half months behind. Carla admitted to Stoecker that she had large outstanding phone bills that she felt she would never get paid off. According to Stoecker, Carla said that one of her phone bills was $500 and that they allowed a friend to turn on a second phone line in their home. The second phone line also had an outstanding balance of $500.
Stoecker testified that he was present for visitation with Carla, David, and the three children. Stoecker stated that during those visits, Carla gave most of her attention to A.B. Carla left J.C. by himself and prevented him from playing with his siblings. Stoecker further stated that Carla “pretty well kept telling [J.C.] to stop [playing with the others] because she was afraid that they would either kick A.B. [or] bump into A.B.” Carla told J.C. to “get away” from A.B. She “would constantly yell at David that he wasn’t helping her watch the kids. And there at the end of the visit, J.C. was just frustrated to where he really didn’t even want to say goodbye to them. He would just pretty well sit in the corner, or sit in the chair and pout.”
In regards to any of the issues DHS had attempted to address with appellants, Stoecker stated that appellants had made “no progress” on any issue. Stoecker said, “If we continue to offer services to them, I feel they would not change. Every avenue I’ve tried to go down to help rectify their situation, they have either been unwilling to or told me that they have found other people that would help them with that. . . the situation would never change.”
Charles Arnold, the appellants’ caseworker, testified that DHS recommended that appellants’ parental rights be terminated, that it was highly likely that the children would be adopted, and that people had already expressed interest in adopting the children. He stated that despite all of DHS’s efforts to reunite the family, appellants had made no progress in their case plan including the conditions of the house, the arrears in bills, and the utilities being turned off for lack of payment, J.C.’s special needs, appellants’ lack of cooperation with DHS, and Carla’s bad attitude toward DHS. Arnold stated that he took photographs of appellants’ home the night before the hearing and they were introduced into evidence. Arnold described Carla’s poor relationship with J.C. in contrast to a more motherly relationship with A.B. Arnold said that appellants were currently $875 behind in her rent. However, Arnold believed that appellants should be able to pay their bills with both of them working. Arnold characterized David’s employment history as “sketchy.” Arnold feared that Carla would lose her job as a home health nurse with the White County Department of Health when it learned of the dependent-neglected status of her children.
In regards to visitation between appellants and the children, Arnold testified that on eight occasions the parents did not show for the visit. On two occasions the visit was cancelled because the children were sick. On one occasion, J.C. cancelled the visit because he “did not want to visit with his mother.” On various occasions, the parents arrived late or left very early. Arnold said that he had visited in appellants’ home that month and he “[sat] down on their couch and my legs [were] freezing cold because of the draft.” Arnold remarked that although appellants “have a roof over their head[s]” it was not “suitable for children to live in.”
Paula Clement served as a White County CASA supervisor in appellants’ case and became involved in the case in November of 2001. She described a visit to appellants’ home:
[W]hen I got there, ... [David] said they had a mouse in the house and he was going to set a trap to catch the mouse. And as I walked through the house and coming back, a rat that was at least a foot long in body, not including the tail, ran across my foot. It went behind the stove, and it was so big it could not fit behind the stove. I had to make a very quick exit out of the house, because the door — the rat was between myself and the front door.
In another visit to the home, Clement asked Carla about the rat, and according to Clement, Carla said that they had set out poison for the rat, and in doing so, they killed the next door neighbor’s cat.
Clement stated that during different visits to the house while A.B. was still in appellants’ custody, Clement found several plastic bags in A.B.’s crib. She said, “[t]here were several items stacked in the baby’s bed where I knew A.B. was sleeping.” Clement described appellants’ house as so filled with:
clutter on the floor [that] you would have to literally step over it just to be able to find your footing. There were a remarkable number of Dr. Pepper bottles that were in the kitchen that are constantly there whenever I have gone. Food is left out it looks like for days. And one particular visit, [Carla] was frying chicken and using the baby’s blanket to cover the chicken while she was cooking it because the flies were so bad that they would actually get on the chicken in between her trying to take it out. She had a baby’s blanket on the meat that she was waiting to prepare. It was raw meat.
Clement stated that the last time she visited the house was two weeks before the hearing. At that time, Clement observed numerous five-gallon “tubs of wet clothes. [I] asked [Carla] about that, she said they had the clothes stored on a trailer outside. And it had rained and it had mildewed the clothes so they brought the clothes inside for her to be washing. But I couldn’t tell the difference [between the clean clothes and the dirty clothes]. They all looked extremely dirty.” Clement observed that the back bedrooms “seem[ed] to be in order” but that the rest of the house was very cluttered.
Clement expressed concern about Carla’s failure to bond with J.C. and D.B. Clement noted that during visitation Carla “secluded herself with A.B.” At times Carla would take A.B. to a corner and play with only him. On one occasion, Clement recalled, “I had brought it to [Carla’s] attention that D.B. needed to [have his diaper changed]. It was obvious that he needed it changed. Instead of changing him, she chose to change A.B., who did not seem to need to be changed at the time.” Carla had to be reminded again before she changed D.B.’s diaper. Clement said that the entire time Carla changed A.B.’s diaper, she talked to him in a very loving and soothing manner although A.B. continued to wiggle. By contrast, when Carla changed D.B.’s diaper she became “extremely frustrated with him” and commented that he was acting like his father. During one visit, J.C. was required to finish his homework before participating in the visitation session. Nonetheless, J.C. tried the “entire time” to get his mother’s attention. At one point, Carla slammed her hand down on the table next to J.C. and told him to finish his homework “ifyou want to have any kind of a visit.” At the end of the visit, J.C. had become very angry with Carla, and he made the comment to her, “I’m mad at you. I’m mad at you all the time. I can’t tell you why I’m mad at you because I’m afraid you’ll make me mad.”
Clement stated that she asked Carla to give her a copy of her bills and monthly income. Ultimately, Clement learned that appellants’ monthly income in December totaled $1,327.00. Clement opined that this was a sufficient income for the couple. The only expenditures that appellants produced totaled $314 for December. Clement noted that appellants’ truck was not reliable transportation for three children and that it could not accommodate three car seats. Carla told Clement that a businessman, Limbell Edwards, in Beebe was helping her with her budgeting. Clement stated that she spoke with Edwards but that he had told appellants that he did not have time to help with their budgeting. Clement commented on Carla’s lack of cooperation with DHS, her argumentative nature with Arnold, and her negative attitude. Carla stated to Clement that her visits with J.C. in Little Rock, which would be for an hour, were not worth her “cranking up” her truck to go.
In reference to counseling sessions, Clement stated that Carla had only attended an intake session. Clement further testified that at one visitation Carla never made an effort to make physical contact with D.B., but she held A.B. the entire time. Yet, Clement still recommended termination of appellants’ rights to A.B.
Carla testified that she had lived at her address in Beebe for a little over a year. She stated that she had received some child support payments for J.C. She further stated that she had been working for the department of health in Searcy for two months for approximately twenty hours per week at a rate of $5.85 per hour as a CNA. She said that David had been working for three weeks for a company in Cabot constructing metal buildings. She stated that she had all of the utilities except the telephone working in the house. She further stated, “I think I’ve done pretty good so far, because all of our bills has been paid, they haven’t been shut off.” Yet, later in her testimony, she said that her combined phone bill for both lines totaled over $1,000. She also admitted that she was $875 behind in her rent. Carla further admitted that she had an outstanding balance on her gas bill. Carla stated that the back bedrooms in her house are not warm because she does not use them and because her landlord “has my heater that goes in that room. He just hasn’t brought it to me.”
Carla told the court, “I love my children dearly, all four of them, and I’d do anything in the world for all four of them.” She stated that she showed the same amount of affection to each of them. Regarding the cleanliness of her home, she stated, “I do think there’s a problem there, honestly, in a way, because I’m not a housewife. I do not like housework. But now, since that’s what I do for a living, I’ve gotten to where that doesn’t bother [me].” In reference to her laundry, she said, “I’ve got a clothes line hanging in the back room, in ¡J.C.j’s room, that we use. The clothes line out back, we don’t use those on account of the dogs being out there because they’ve pulled my clothes off the line before.” Carla also claimed that currently “there [were not] all sorts of appliances cluttered in my house.” Yet, she admitted that she had old appliances in her yard and that they had extra scrap iron in the yard to sell. Carla told the court that on Saturdays she and David retrieved used appliances that others did not want. Then, they stored them at their home. She recognized that David had not completed his parenting classes.
Carla explained that J.C. was her oldest child and that R.M. was her next oldest child, who was in the custody of her father, Tommy McMasters. Carla stated that she had supervised visitation with R.M. every other Friday for one hour at the DHS office in Brinkley, Arkansas.
The court presented Carla with two sets ofphotographs, one set taken on October 14, 2002, and the other set taken on January 22, 2003. The court asked her if she could tell a difference in the cleanliness in her kitchen on October 14 and on January 22. She admitted that there is “honestly, very little” difference in the photographs. She reasoned that the dirty condition of her home was due to the fact that she did not have help cleaning it. Carla said that she did not have “time to do it. I work during the daytime. I come home. Sometimes I do some before I go to bed at night.”
David Browning testified that he was the biological father of D.B. and A.B. He said that he was going to “make a good effort to keep [his] job.” He admitted that he had known for a “long time now that the Department is wanting us to clean [our house]. The house is clean. The only thing left is a few dishes we ate out of and what I cooked out of last night. And a few clean clothes is in the bedroom that we haven’t put away.”
Brenda Crownover, J.C.’s therapist, testified thatJ.C. had been in treatment for approximately two years. J.C. began treatment at Centers in May of 2001, and he began with treatment homes in March of 2002. Crownover stated that J.C.’s need for treatment began while living with appellants. Crownover currently works with J.C. and his foster parents. Crownover testified, “[J.C.] is oppositional. He has difficulties in school. He needs a lot of supervision. In the past, he’s had some suicidal behaviors and things of that nature. And he does need much structure.” She also stated thatJ.C. was on medication and visits a psychiatrist monthly. Crownover testified that, even with J.C. “being in a two parent home where the parents are trained to be therapeutic foster parents, they still have a lot of difficulty with [J.C.] In regards to his best interest and him needing to continue in that type of placement for a while longer, he needs that structure.” However, Crownover testified that J.C. is no longer suicidal and that he no longer displays psychotic tendencies. Crownover did not “think that 0.C.] would do better”, if he returned to appellants’ home. Yet, Crownover could not “say that [J.C.] would not be happier” if he returned to appellants’ home.
J.C. testified outside the presence of others in the courtroom. He stated, “I’m not doing very good in school. ... I don’t want to go home because my mom is living in a place that I don’t really like to live in, with no heat, no place to play except for in the front yard. And it is just not clean enough.” J.C. also told the court, “I have been having a little trouble lately. The reason I think that is, well, I think I’m just not trying right now because I’ve got all this stuff just making me worry.”
Arkansas Code Annotated § 9-27-34Í
Arkansas Code Annotated § 9-27-341 (b) (3) (B)(i) (a) (Repl. 2002), provides that the trial court may terminate parental rights when “a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions that caused removal, those conditions have not been remedied by the parent.” Pursuant to this statute, the trial court terminated Carla’s parental rights as to J.C., and the trial court terminated Carla and David’s parental rights as to D.B.
An order to terminate parental rights may be based upon the fact that a parent was found by a court of competent jurisdiction to have had his or her parental rights involuntarily terminated as to a sibling of the child. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). Pursuant to this statute, the trial court terminated Carla and David’s rights as to A.B. based upon the fact that their parental rights were terminated as to D.B.
Legal Analysis
After talking to appellants and visiting their home, DHS designed a case plan in an effort to rehabilitate appellants’ home. On numerous occasions, appellants verbally agreed to comply with the plan. In providing services to appellants, DHS made 221 visits to the home. DHS assigned over ten case workers, social workers and aids, therapists, counselors, child-maltreatment assessors, and placement-team specialists to assist appellants in rehabilitating their home. In doing so, DHS compiled 425 pages of notations documenting conversations with appellants and visits to the home. In spite of the tremendous effort by DHS, appellants refused to comply with their case plan.
Appellants failed consistently for fourteen months in at least three ways to rehabilitate their home. First, appellants continued to maintain hazardous, unhealthy, and unsanitary living conditions in their house. Second, appellants exposed the children to actual, physical endangerment. Third, appellants demonstrated a painfully palpable lack of motivation to comply with the case plan. As a result, we cannot say that the trial court clearly erred in terminating appellants’ parental rights.
First, appellants continued to maintain hazardous, unhealthy, and unsanitary living conditions in their house. When Paula Clement, a CASA supervisor, visited appellants’ home, a rat “a foot long in body, not including the tail” ran across her shoe. The rat was so large that it could not fit behind the stove. It is no surprise that rodents lived in appellants’ home as they continually left old food and trash on counter tops, furniture, boxes, and the floor. Their home contained unimaginable amounts of junk and filth. Appellants filled their home with “trailer loads” of broken appliances, frying pans, and old, mildewed clothes. Case workers found knives, nails, and rags lying around the house. Even J.C. stated that there was no room for children to play at the house. A caseworker discovered plastic bags in the baby crib. During the four months that A.B. remained in appellants’ custody after his birth, A.B. had to stay in his playpen if he was not at daycare. One day, a social worker observed Carla attempting to fry chicken in her kitchen. Because flies coated the chicken, Carla took A.B.’s only baby blanket and laid it over the raw meat. Social workers found cigarette butts and trash on the floor, hundreds of metal hangers on the floor, large stacks of dirty dishes, and mounds of wet, mildewed clothes in virtually every room of the house.
On two occasions, DHS workers spent several days “gutting” and cleaning appellants home. A crew from Harding University assisted in the volunteer effort to bring appellants’ home to a liveable condition. The crew unloaded boxes, sorted junk, and disposed of numerous broken appliances and unusable parts. DHS recruited municipal employees to help in disposing over eight truck loads of trash from the home. After the crew finished its first overhaul of the home, a case worker returned less than a week later to discover that the home “looked as if we had never cleaned it.” In the meantime, appellants had unloaded another flat-bed trailer full of junk into the home. Because appellants’ landlord was prepared to evict appellants, DHS agreed to gut and clean the house a second time. Yet, in spite of these heroic efforts by DHS and the community of White County, appellants recreated the deplorable living conditions in their home.
DHS workers took photographs in October 2002 and January 2003 of appellants’ kitchen and living environment. At the termination hearing, Carla admitted to the court that there was virtually no difference in the set of photographs, that her house was just as filthy at the time of the hearing as it was several months earlier.
Second, appellants exposed the children to actual, physical endangerment while they were in appellants’ custody. When DHS made its first contacts with appellants, they were living out of a van with D.B. J.C. was not in their custody as he was an inpatient at a treatment facility. According to a family friend, D.B. spent most of his time in his car seat. D.B. had “head lice the size of ants.” He was sick, and appellants had taken him to the emergency room for treatment. At the hospital, appellants received antibiotics for D.B. but chose to throw them away because they had no refrigeration for the medicine.
Later, when appellants moved into their rent house in January 2002, appellants’ had only one source of heat, a small electric heater. Appellants had no gas turned on in the house. The electric heater was clearly insufficient to warm the three-bedroom home. Nonetheless, after A.B. was born, appellants chose to place his crib under a window with the heater on the other side of the room. A DHS worker visited the home on a very cold day and reported that she found no blankets for the baby, only light sheets in the crib. The bedroom had two entrances with sheets covering the doorways. As a result, it was impossible to retain heat in the bedroom.
A.B. was born with a sleeping disorder, and doctors required A.B. to wear a heart monitor at all times. In spite of A.B.’s special needs, appellants continued to leave the baby with a neighbor who DHS warned was incapable of caring for the baby. After visiting the neighbor, DHS advised appellants that the neighbor was an inappropriate babysitter because her cure for a child’s fever was to hold the child in front of an air conditioner. Additionally, DHS warned appellants that police had been called to the neighbor’s home for numerous domestic disputes.
Third, appellants demonstrated a painfully palpable lack of motivation to comply with the case plan. Carla, and especially David, failed to maintain employment. Even when one of them secured employment, he or she rarely worked a full-time schedule. David failed to complete his parenting classes although DHS offered the classes to him in his home for his convenience. Regardless, he chose to sleep through the classes. Although Carla completed her parenting classes, she would not attend her counseling sessions. She attended only one counseling session, which was an intake. Appellants were “no shows” on at least eight scheduled visits with their children. On several other occasions appellants arrived late or left very early. During the visits, Carla demonstrated a severe lack of bonding with the two older boys, J.C. and D.B. Finally, in spite ofDHS and volunteers’ efforts to gut and clean appellants’ home on two separate occasions, appellants managed to recreate their original, deplorable conditions.
We distinguish this case from Trout v. Arkansas Dep’t of Human Servs., 84 Ark. App. 446, 146 S.W.3d 895 (2004). In Trout, supra, this court reversed the Pulaski County Circuit Court’s decision to terminate Amanda Trout’s parental rights. During the period that DHS provided services to Trout, she made valuable, intermittent progress. In one year, Trout divorced her abusive husband, completed parenting classes, began rehabilitative services, obtained an appropriate home and transportation, addressed her medical problems, obtained employment, and commenced counseling. On the other hand, in the case at bar, multiple case workers testified that, in spite of DHS’s efforts, appellants had made no progress in rehabilitating the home.
In Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001), our state supreme court reversed our decision, Dinkins v. Arkansas Dep’t Human Servs., 71 Ark. App. 451, 34 S.W.3d 366 (2000), overturning the Ashley County Chancery Court’s termination of Tiffany Dinkins’s parental rights. In Din-kins, the mother similarly exposed her children to environmental hazards. In affirming the chancellor, our state supreme court noted that Dinkins’s home “was filthy. Garbage cans were overflowing with trash and dirty diapers; the kitchen smelled of soured food, and dirty pots and pans cluttered the sink; dirty clothes and ‘unidentifiable debris’ were found on the floor in each room.” In addition, the children suffered physical abuse. In this case, although appellants’ children were not physically beaten, appellants physically endangered the children with a lack of medication, a lack of heat, and exposure to items that could have seriously injured or killed them, such as plastic bags in the baby’s crib, sharp knives on the floor, and a foot-long rat in the house.
Conclusion
As this is a matter involving the welfare of young children, we must give great weight to the trial judge’s personal observations. Ullom, supra. Here, the trial judge had the unique opportunity to see and hear each of the witnesses. Over a period of fourteen months, the trial court conducted a total of ten hearings, viewed numerous photographs of appellants’ home, heard eleven witnesses testify thirty-eight times, and issued at least a dozen orders before concluding that appellants should not be allowed to maintain parental rights to the children.
Just as the trial judge stated, this is not a case about terminating appellants’ rights because they are poor. To the contrary, appellants’ rights were terminated because they have demonstrated over a lengthy period that they are incapable of creating or maintaining an environment that is safe and clean for children. We recognize that appellants! impoverished lifestyle does not prevent them from cleaning their house. Pursuant to our review, we viewed the photographs of appellants’ home, which were introduced as exhibits at the hearings. These photographs confirm the testimony presented by DHS that appellants’ home was not simply unkept but rather unsafe, filthy, and environmentally unacceptable for children.
Given our deferential standard of review, we are not left with a definite and firm conviction that a mistake has been made. Undoubtedly, the evidence reveals that two of the children were adjudicated dependent neglected and that they had been out of the home for over a year. In addition, DHS workers testified that appellants had made “no progress” in complying with their case plan. This provided the trial court with convincing evidence to terminate appellants’ parental rights. See Walters v. Arkansas Dep’t of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002) (holding that even though Walters had made some progress, she was still not able to adequately care for her children). In the case at bar, no reasonable person could say that the trial court clearly erred in terminating appellants’ parental rights.
Affirmed.
Stroud, C.J., Bird and Vaught, JJ., agree.
Hart and Roaf, JJ., dissent.
We note that there is a petition for rehearing and a petition for review pending. | [
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John F. Stroud, Jr.,
Chief Judge. Appellant, John Smith, was found guilty by a Yell County jury of the offenses of possession of a fireann by certain persons, aggravated assault, resisting arrest, and two counts of terroristic threatening in the first degree. He makes the following arguments on appeal:
I.With respect to the conviction and sentence on the charge of possession of a firearm by certain persons, the appellant was charged and convicted of a Class D felony and sentenced for a Class B felony of which the jury was not instructed in the guilt phase of the trial.
II.The trial court erred in fading to grant a mistrial during the guilt phase of the trial based upon improper closing argument by the prosecutor.
III.The trial court erred in failing to grant a mistrial during the sentencing phase of the trial based upon the prosecutor’s comment in closing argument that the jury should recommend to the trial court consecutive sentences.
IV. The Judgment and Commitment Order should be corrected to reflect that the [sentence] for offense no. 6, resisting arrest, should run concurrently and not consecutively pursuant to Ark. Code Ann. § 5-4-403.
Because appellant does not contest the sufficiency of the evidence, it is not necessary to recount the testimony of the witnesses in detail. In summary, on January 12, 2002, appellant went to his ex-girlfriend’s house with a rifle, told her that he was going to kill her, and then shot at her. When law enforcement officers arrived, appellant had already been relieved of his gun but had retrieved a kitchen knife from the house; he used the knife to threaten one of the officers, telling the officer that he was going to “stick the knife in his heart and twist it.” After appellant refused to put down the knife, officers sprayed him with pepper spray and hit him across the shoulders with a police baton, which caused him to drop the knife. Appellant was then taken into custody.
Appellant was first charged with the offense of possession of firearms by certain persons, a Class D felony. The State later amended the information to make this offense a Class B felony. During the guilt phase of the trial, the jury was only instructed, “John Smith is charged with the offense of possession of a firearm. To sustain this charge the State must prove the following things beyond a reasonable doubt. First, that John Smith has been convicted of a felony; and Second, that he possessed or owned a firearm.”
Arkansas Code Annotated section 5-73-103(c) (Supp. 2003), which sets forth the offense classifications for possession of firearms by certain persons, provides:
(1) A person who violates this section commits a Class B felony if:
(A) He or she has a prior violent felony conviction;
(B) His or her current possession of a firearm involves the commission of another crime; or
(C) He or she has been previously convicted under this section or a similar provision from another jurisdiction.
(2) A person who violates this section commits a Class D felony, if he or she has been previously convicted of a felony and his or her present conduct or the prior felony conviction does not fall within subdivision (c)(1) of this section.
(3) Otherwise, he or she commits a Class A misdemeanor.
In the present case, although the State had amended the offense to a Class B felony, the instruction given to the jury during the guilt phase of the trial was for a Class D felony. The jury was never given the opportunity to determine if the facts of appellant’s case constituted a Class B felony under Ark. Code Ann. § 5-73-103(c)(1).
In the sentencing phase of the trial, the jury was instructed on the range of punishment for a Class B felony instead of a Class D felony. The sentence for a Class B felony shall be no less than five years nor more than twenty years, Ark. Code Ann. § 5-4-401(a)(3) (Repl. 1997), but the sentence for a Class D felony shall not exceed six years. Ark. Code Ann. § 5-4-401 (a) (5) (Repl. 1997). However, appellant made no objection to the erroneous instruction, and the jury sentenced him to a term of twelve years in the Arkansas Department of Correction for this offense. Appellant now contends that this was an illegal sentence.
Although appellant was sentenced to twice the amount of years allowed for a Class D felony, we are not able to address his argument on appeal because it was not preserved for our review with an objection to the erroneous jury instruction at the trial court level during the sentencing portion of appellant’s trial. In Jones v. State, 83 Ark. App. 195, 119 S.W.3d 70 (2003), this court held that even though the appellant was incorrectly sentenced as a habitual offender, thus making his sentence twice as long as the one that could have been imposed if he had not been found to be a habitual offender, the argument was not preserved for appellate review because there had been no objection to the proof of his habitual-offender status during his sentencing. Although Jones was a bench trial, one of the cases pited therein, Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984), involved ajury trial. In that case, the trial judge erroneously instructed the jury with regard to appellant’s habitual-offender status, but there was no objection to the erroneous instruction, and appellant did not proffer an instruction of his own. Our supreme court held that such a failure precluded consideration of the issue on appeal.
We find these cases, while not directly on point, to be strongly analogous to the case at bar. Therefore, we hold that appellant’s failure to object to the erroneous jury instruction during the sentencing phase of his trial precludes consideration of this point on appeal. Appellant may, however, pursue postconviction remedies from his sentence.
Appellant’s second and third points concern the trial court’s denial of his motions for mistrial, one during the guilt phase of the trial and one during the sentencing phase of the trial. During closing arguments in the guilt phase of the trial, the prosecuting attorney stated:
That’s why I’m telling you to look at all of his actions, not just look at his words. I didn’t come in here and say, hey, he said he was going to kill her and that’s the only proof we’ve got. If he’d come in there and said that and waved the gun around and not fired at anybody, I’d say Mr. Witt’s right. He’s just a blow hard, but this guy’s something more. This is a "guy that’s a dangerous man. He’s been convicted of terroristic threatening before. He shouldn’t have had this gun, but he took it.
Appellant’s counsel objected and moved for a mistrial, arguing that it was improper for the prosecutor to call attention to his prior conviction for terroristic threatening as prior misconduct instead of the purpose for which it was admitted, which was to prove that he had a previous felony conviction. The prosecutor responded that it was strictly argument, and that the information had been previously admitted without objection. Appellant’s motion for mistrial was denied, but over the State’s objection, the trial judge instructed the jury to disregard the prosecutor’s argument with regard to the prior conviction regarding terroristic threatening as it related to prior bad conduct.
Appellant also moved for a mistrial during the closing arguments of the sentencing phase of the trial when the prosecutor stated, “I’d like for you to give the full range of punishment, but that’s your business. You’re the conscience. Make a recommendation somewhere to this Court on the verdict forms that the terms of imprisonment run consecutively rather than concurrent.” Appellant objected, arguing that those were improper statements to make to the jury because they had not been instructed in that area. The trial judge denied appellant’s motion for mistrial, but instructed the jury to disregard the prosecutor’s argument regarding making a recommendation to the court as to whether the sentences should run concurrently or consecutively because that decision was within the province of the court, not the jury.
A mistrial is a drastic remedy that should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996). An admonition is the proper remedy where the assertion of prejudice is highly speculative. Id. The trial court has wide discretion in granting or denying a motion for mistrial, and such a decision will not be disturbed on appeal absent an abuse of that discretion. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999).
We hold that there was no error in the trial court’s denial of appellant’s motions for mistrial. In both cases, the trial judge admonished the jury to disregard the comments made by the prosecutor. In the guilt phase, although the prosecutor’s comment did bring attention to the fact that appellant had been previously convicted of terroristic threatening, such information was already in evidence because the felony conviction had been introduced as part of the State’s case to prove that appellant was a felon in possession of a firearm. Furthermore, the trial judge instructed the jury to disregard the prosecutor’s argument with regard to the prior terroristic-threatening conviction as it related to prior bad conduct.
Likewise, in the sentencing phase, the trial judge also instructed the jury to disregard the prosecutor’s comments regarding the recommendation that appellant’s sentences run consecutively. Although Arkansas Code Annotated section 5-4-403(d) (Supp. 2003) states that the court is not bound by the recommendations of consecutive or concurrent sentencing options of the jury, which indicates that it is not improper for the jury to make a recommendation, the decision of whether to impose consecutive or concurrent sentences lies solely within the province of the trial judge. See Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). In the present case, it does not appear from the record that the jury made a recommendation as to whether the sentences should run consecutively or concurrently. For these reasons, we cannot say that the trial court abused its discretion in denying appellant’s motions for mistrial.
In his last point on appeal, appellant contends that the judgment and commitment order must be corrected to reflect that offense number six, resisting arrest, a Class A misdemeanor, should run concurrently and not consecutively to the felony offenses pursuant to Arkansas Code Annotated section 5-4-403 (Supp. 2003). Subsection (c)(1) of that statute provides: “A sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences shall be satisfied by service of sentence for a felony.”
On the line of the judgment and commitment order that states which sentences are to run consecutively, it appears that the following is written in: “Offenses 2, 3, 6, 5.” Appellant contends that because offense six is a misdemeanor, it must be run concurrently with one of the felony offenses. However, the State points out, and we so find, that what appellant is construing as an out-of-order numeral six is actually an ampersand. This assertion is further borne out by the fact that if one adds up the sentences for offenses two, three, and five, the offenses for which the sentences were ordered to run consecutively, that number equals 264 months, or twenty-two years, which is the total amount of time to be served on all of the offenses.
Affirmed.
Baker, J., agrees.
Crabtree, J., concurs. | [
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John F. Stroud, Jr., Chief Judge.
This opinion is in substitution of the opinion of this court issued on November 19, 2003. Appellant, Susan Hyden,-and appellee, James Hyden, were divorced in 1996. They have three children, the youngest of whom is William, bom on October 10, 1984. William is attending Hargrave Military Academy. By order entered January 7, 2003, the trial court transferred custody and control of William to appellee, terminated appellee’s $1430 per month child-support obligation, and imposed a $536 per month obligation upon appellant that was designed to allow her to spread her payment for one-half of the expenses associated with William’s two-year attendance at Hargrave Academy over a period of time that extended well past his anticipated graduation. Appellant contends on appeal that the trial court erred “in failing to find a material change of circumstance warranting a reduction of appellant’s child-support obligation” and “in failing to properly apply Arkansas law in determination of appellant’s child-support obligation.”
In our original unpublished opinion in this case, issued November 19, 2003, we held that the trial court erred when it found that there had been no material change in circumstances and that it had no authority to modify the July 2001 order. We found that appellant should pay $536 per month in child support and that appellee should pay $1430 toward the Hargrave Academy expenses, both of which were based upon the child-support chart. We reversed and remanded this case to the trial court to allocate the excess of William’s school expenses between the parties and suggested that one equitable manner of doing so would be on a pro rata basis. Appellee timely filed a petition for rehearing, contending that this court should rehear the case, should reverse the decision issued on November 19, 2003, and should reinstate appellant’s child-support obligations as decided by the trial court. We have granted the petition and reinstated the appeal.
In this substituted opinion, we again reverse the trial court’s decision and remand this case. However, instead of remanding the case for the trial court to allocate the excess school expenses, we remand for the court to enter an order that limits appellant’s child-support payments to $536 per month, which is the amount that was reached by applying the child-support chart, with the balance of the Hargrave Academy expenses to be paid by appellee.
It is unnecessary to recount the various awards of custody and modifications thereof concerning the children since the decree was first entered in 1996 because the other two children have attained majority, and this appeal involves only the most recent changes with respect to William. However, the terms of the two most recent modification orders are essential to understanding this case. The first of the two orders was entered July 12, 2001. In it, the trial court changed custody of William to appellant and ordered appellee to pay child support in the amount of $1430 a month, presumably based upon his income applied to the child-support chart, which was in addition to the $1221 a month in alimony that appellant was receiving pursuant to the original decree. Moreover, paragraph seven 7 of this order provided:
7. If the Minor Child attends Catholic High School in Little Rock, Arkansas, all costs shall be paid by Plaintiff [Appellant], If the Minor Child attends Hargrave Military Academy, in Chatham, Virginia, each party shall pay one-half of all expenses, including tuition, fees, travel, extracurricular fees and any other associated costs incurred by the Minor Child. Defendant’s [Appellee’s] child support obligation shall also be suspended and fully abated during any academic year the Minor Child attends Hargrave Military Academy, effective on the first day of classes and ending on the last day of classes (to include all school breaks, so long as the Minor Child completes the academic school year), and the balance of any child support shall be pro-rated for the remaining portion of any month and paid to Plaintiff [Appellant] through the Pulaski County Child Support Office.
The order thus contemplated two situations: (1) if William should attend Catholic High, appellant would pay all costs associated therewith, presumably out of the $1430 a month that she would be receiving from appellee as child support; (2) if William should attend Hargrave Academy, the expenses associated therewith would be shared equally by the parties, with appellee’s $1430 a month child-support obligation to be abated during the academic year and reimposed during the summer months, prorating any amounts for partial months at the beginning and end of the academic year.
In January 2002, William returned to appellee’s house. Appellee continued to pay the $1430 a month child support to appellant, but in April 2002 he filed a petition to modify. The hearing on the April petition was held in November 2002, and the order was entered January 7, 2003. This January 2003 order is the second of the two pertinent orders for purposes of this appeal. In it, the trial court transferred care, custody, and control of William to appellee. The order also acknowledged the fact that William began attending Hargrave Academy in the fall of 2002; determined that both parents were obligated to pay one-half of the expenses associated with William attending Hargrave for two years pursuant to paragraph seven of the July 12, 2001 modification order; terminated appellee’s $1430 a month child-support obligation as of April, which was the month in which the petition for modification was filed; established appellant’s child-support obligation of $536 a month based upon her approximate $3000 a month income, which included her alimony, applied to the child-support chart; ordered her to pay back-support for the months of May, June, July, and August; and ordered appellant to satisfy her portion of the Har-grave Academy expenses by continuing to pay appellee $536 a month during the two periods of September through May (i.e., the two academic years when her child-support obligation would otherwise have been abated) and, in addition, to continue those payments beyond William’s graduation from Hargrave until her one-half portion of the Hargrave Academy expenses was satisfied. As a matter of mechanics, the court also ordered that instead of appellant paying the support amount into the court, the amount was to be deducted from the amount of alimony that appellee paid her each month, i.e., $1221 minus $536. It is from this January 2003 order that appellant appeals.
At the November 2002 hearing on appellee’s petition, the trial judge took a few minutes at the outset to review his notes from the previous hearing and to engage in a colloquy with the attorneys to refresh his memory on the background of the case. During the colloquy, the trial court rejected appellee’s attorney’s position that the provision regarding Hargrave Academy expenses was not modifiable based upon the doctrine of res judicata. Rather, the trial court stated that “it is in the nature of support, Mr. Moore, and I think I can.” Furthermore, the court later explained:
[T]his is clearly in the nature of support, the order previously entered as to his schooling. Even though it doesn’t say child support, that’s what it is_I don’t know that I can change it. Now, I’m not saying I can or I won’t, but I’m just saying it really raises that red flag in my mind as to whether or not I have authority to do so, unless you can demonstrate to me a material change in her financial circumstances.
It was undisputed at the hearing that at the time of the earlier order appellant’s take-home pay was $281 a week, and that at the time of the November hearing it was $457.27 a week, which, apparently, by also including alimony brought her income close to $3000 a month.
At the end of the hearing the court made its ruling, explaining in pertinent part:
[I]n order for this Court to modify that, I think there would have to be a change in circumstances. And I don’t think there has been one demonstrated.
In looking at the Court’s order ofjuly 12, ’01, the Court finds that it will be enforced. The — and particularly paragraph 7 of that as it relates to the schooling expense for William.
The court then discussed the manner in which the Hargrave Academy expenses would be handled, concluding:
Then once William graduates, there’s going to be a balance of some $15,000, give or take some, that she will continue to pay at [$]536 a month until that balance for this year and next year’s Hargrave expense is paid out. And the Court will treat that as it would if a payor parent owed an arrearage in child support and that arrearage was due and owing even after the child turned 18 or graduated from high school, that parent continues to pay child support at that rate.
And, Mr. Stone, you know, I’ve tried to do some equity in the manner in which I’ve ordered the payment to be made. And I went back and I reread my notes completely from the testimony as well as the Court’s ruling in July — well from .. .the June 18, ’01,hearing. And that’s as good as equity as I can do, based upon what I understand the law to be. I don’t think I’m entitled to modify that support order without a material change of circumstances.
Appellant’s first point of appeal challenges the trial court’s determination that there had not been a material change of circumstances. A party seeking modification of the child-support obligation has the burden of showing a change of circumstances sufficient to warrant the modification. Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001).
Here, the trial court clearly considered the Hargrave Academy expenses to be “in the nature of support.” Appellee does not challenge the trial court’s treatment of the Hargrave Academy expenses as “in the nature of support,” and therefore subject to modification when there has been a material change of circumstances, so we need not address that issue. However, we do find error in the trial court’s determination that there was no material change of circumstances here.
We are unable to determine if the equal sharing of the expenses of Hargrave Academy set out in the July 2001 order was set by the court or included by agreement of the parties. We shall first address the possibility that it was by agreement of the parties. In Harris v. Harris, 82 Ark. App. 321, 107 S.W.3d 897 (2003), we explained that while independent contracts dealing with child support may be binding upon the parties, they are not binding upon the trial court:
Appellee, however, argues that appellant was bound by the parties’ agreement incorporated into the divorce decree to pay $1,200 per month in child support until both of their children reached eighteen years of age. In Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990), the supreme court recognized that a parent who agrees, at the time of divorce, to continue support until the minor children are beyond the age of eighteen commits himself to uphold such an obligation. A parent can contract and bind himself to support a child past the age of majority, and such a contract is just as binding and enforceable as any other contract. Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944). However, such independent contracts dealing with child support are not binding on the trial court. Afano v. Afano, supra; Warren v. Kordsmeier, 56 Ark.App. 52, 938 S.W.2d 237 (1997). Accordingly, the trial court always retains jurisdiction over child support issues as a matter of public policy, and no matter what the parties’ independent contract provides, either party has a right to request a modification of a child-support award. Id.
A party seeking to modify child support has the burden of showing a change in circumstances sufficient to ivarrant the modification. Weir v. Phillips, 75 Ark.App. 208, 55 S.W.3d 804 (2001). Factors which the trial court may consider in determining whether there has been a change in circumstances include remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody debts of the parties,financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998).
(Emphasis added.) Consequently, regardless of whether or not paragraph seven of the July 2001 order represented a contractual agreement of the parties, the trial court was authorized to adjust child support upon a showing of changed circumstances.
The provisions in the July 2001 order concerning Hargrave Academy were fashioned to address a speculative future event — it was not at all certain at that point where William would be going to school during his last two years of high school. There was no reference to the child-support chart regarding that possible future event, and neither was there any reference to the actual costs associated with attendance at Hargrave. The one-half division of expenses is clearly inequitable in light of the fact that appellant would pay all of the Catholic High expenses out of the $1430 a month that she was receiving as child support. Yet, that amount would be abated during the academic year if William attended Hargrave, with appellant paying one-half of the considerably more expensive Hargrave costs. Furthermore, at the time of the July 2001 order, William was in appellant’s custody rather than appellee’s, and appellee was the one ordered to pay $1430 a month child support, even though that amount was to be abated if William went to Hargrave. Thus, we find that the circumstances for all of the persons involved had changed materially since the entry of the July 2001 order, particularly the costs associated with supporting William. Consequently, the trial court erred in concluding that it had no authority to modify the July 2001 order.
For her second point of appeal, appellant contends that the trial court erred in failing to properly apply Arkansas law in determining the appropriate child-support obligation. In finding that there had been no material change of circumstances and that appellant, therefore, remained obligated for one-half of the Har-grave Academy expenses, the trial court in effect ordered appellant to pay child support at a rate of over $1000 a month, even though the court acknowledged that appellant could not afford to pay that amount, and developed something in the nature of a “payment- plan” to try to ease the financial burden for her. That is, a one-half share of expenses for William’s two years at Hargrave would amount to over $24,000, which would be more than $12,000 a year. Appellee paid, and would continue to pay, the school expenses up front, and therefore appellant’s payments were to be made to him in satisfaction of her portion. Recognizing that she could not afford to pay that amount, but having determined that she remained obligated to pay one-half of the expenses, the court looked at the support chart in an effort to determine an appropriate amount for her to pay each month, based upon her income, and then fashioned the award to extend beyond William’s graduation from Hargrave until appellant satisfied her portion of the expenses. According to the trial court’s calculation of her income at $3000 a month, its determination of her child-support amount was $536 a month to be paid in the manner explained earlier in this opinion.
As noted earlier, the trial court was not bound to the one-half division of Hargrave Academy expenses because we have concluded that it erred in finding that there had been no change of circumstances. Arkansas Code Annotated section 9-12-312 (a)(2) (Repl. 2002) provides:
(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
We note that the trial court specifically found that appellant could not afford to pay one-half of the Hargrave Academy expenses, and we further note that a straight application of the child-support chart to both parties collectively will probably not create the funds necessary to pay all of William’s academy expenses. That is, assuming that the parties’ incomes are similar to what they had been in January 2003, the child-support chart would indicate that appellant would pay $536 per month year round since William will either be residing at the school or at appellee’s house. This amount will not nearly cover the anticipated academy expenses of $24,000 per year. It is a matter within the custodial parent’s right to send or to continue to send his child to any particular school. However, if he chooses to continue sending the child to a $24,000 per year school, he should not expect and we should not countenance requiring the noncustodial parent to pay any more than the chart requires. Any school expenses in excess of the child support paid by appellant to appellee will be the appel-lee’s responsibility, as it was his or his son’s decision to incur the substantially increased expenses to attend Hargrave Academy.
On de novo review we can determine the appropriate amount of child support to be paid by the noncustodial parent. Therefore, we exercise our de novo review, and, under the facts of this case, set the child support to be paid by appellant to appellee at $536 per month for every month commencing April 2002, when appellee’s petition to modify was filed, until William finishes Hargrave Academy or otherwise graduates from high school. The total school expenses will be the responsibility of appellee whether William attends Hargrave Academy, Catholic High School, or some other high school. We remand this case to the trial court for entry of an order that is consistent with this opinion.
Reversed and remanded.
Gladwin, Robbins, Vaught, Baker, and Roaf,JJ., agree.
According to the decree, this amount of alimony was to be paid for a period of 126 consecutive months (10.5 years) unless terminated earlier by circumstances provided in the decree that are not pertinent here. | [
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John Robbins, Judge.
Appellant Mack Yancy, Jr., appeals his conviction for theft by receiving after a bench trial in Pulaski County Circuit Court. As his sole point on appeal, appellant asserts that the State failed to bring him to trial within the mandates of the speedy-trial rule, so that the trial court erred by not dismissing the charge against him. We affirm.
Appellant bases his argument on the theory that because he was also charged with the offense of breaking or entering that occurred on the same night, and that because that charge was dismissed for violation of the speedy-trial rule, then the charge of theft by receiving should also have been dismissed as having arisen out of the same criminal episode. We disagree with his argument.
Generally speaking, a defendant who is lawfully at liberty must be brought to trial within twelve months of his arrest or being charged, whichever occurs first. See Ark. R. Crim. P. 28.1(c) (2003). Arkansas Rule of Criminal Procedure 28.2(a) delineates the date from which speedy-trial begins to run, and it provides in relevant part:
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.
(Emphasis added.) See also Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
Rule 30.1 of the Rules of Criminal Procedure explains the consequences of the State’s failure to bring a criminal defendant to trial within twelve months. The Rule provides:
[A] defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.
Id.
In Burmingham v. State, 346 Ark. 78, 57 S.W.3d 118 (2001), the supreme court explained the rationale behind the relevant law:
The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified.
It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion.
Burmingham, 346 Ark. at 83-84, 57 S.W.3d at 122. (Internal citations omitted); see also Rule 28.1 of the Arkansas Rules of Criminal Procedure.
With these legal principles in mind, we examine whether the crimes for which appellant was charged are part of the same criminal episode for purposes of speedy trial. As did the trial court, we conclude that they are not.
The relevant facts are that on the night of April 28, 2001, at approximately 3:00 a.m., appellant was seen on the parking lot of a North Little Rock Wal-Mart by the store’s security guard, and appellant was observed wiping off the number 1500 from the windshield of a blue Ford Ranger pickup truck. The security guard approached, and appellant explained that he needed a “jump,” spontaneously and repeatedly stating that the truck belonged to him. The security guard was suspicious of his insistence of ownership, so he notified the store manager, who in turn notified the police.
Police obtained a description of appellant, and he was found shortly after dispatch in a nearby bank parking lot inside a silver Ford Bronco belonging to Chadwick Hunnicut. Appellant was arrested for breaking or entering Hunnicut’s Bronco that night. The arresting officer stated that he did not have sufficient information at that time to arrest appellant for any crime with regard to the Ranger truck. Further investigation by the police regarding the Ranger revealed that the truck belonged to Mike’s Motors, a used-car dealership. The dealership’s owner verified that the truck, a 1985 Ford Ranger pickup, had a $1500 price written on the windshield in shoe-polish-type marking. Appellant was not arrested for theft by receiving the Ranger until August 18, 2001.
On July 1, 2002, the State filed an amended felony information to join the breaking-or-entering charge to the theft-by-receiving charge for purposes of trial. Appellant was brought to trial for both offenses on July 15, 2002. Appellant moved to dismiss both charges stating that he had not been afforded a speedy trial. The State agreed that the breaking-or-entering charge should be dismissed because more than a year had elapsed since his arrest in April 2001 on that charge. The trial judge granted the motion. However, with regard to the theft-by-receiving charge, the State asserted that an arrest was not effected until August 2001 such that the speedy-trial rule had not been violated. Appellant countered that both crimes were part of the same episode on the same night such that the April 2001 arrest date should commence the running of time for speedy-trial purposes.
The State argued to the trial judge that the crimes were distinct from one another and were committed against different victims, even though they were alleged to have occurred on the same night. The trial judge ruled against appellant on this motion to dismiss, appellant was convicted, and this appeal resulted.
Appellant argues to us that the State’s act of joining the two charges proved that the charges were required to be joined, that the State ought to bear all the consequences ofits decision, and that the consequence is that the State was prohibited by the speedy-trial rule from prosecuting the theft charge. We cannot agree with his contention. In Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002), the supreme court said that any cases construing the criminal rules concerning joinder and severance of trials were unpersuasive on the issue of when the time commences for speedy-trial purposes.
To the extent that appellant argues that this was a single criminal episode, which would mandate that the first arrest begin the time period to run, we likewise find this argument unpersuasive. In Nelson v. State, supra, the supreme court held that appellant Nelson was not in the midst of the “same criminal episode” for purposes of setting the time for a speedy trial in motion. Nelson entered a woman’s vehicle at a Little Rock convenience store, driving off with a female passenger left inside. Nelson proceeded to drive the car to Conway where he robbed a Blockbuster video store, threatened persons therein, and fled from police in the stolen vehicle. Conway police apprehended Nelson -that night, charging him shortly thereafter with the Faulkner County crimes. Nelson argued that when he was arrested in November 1999 for the Faulkner County crimes, which included theft by receiving the car, this began the time to run on the Pulaski County offenses as well. Nelson was not arrested by Pulaski County authorities until May 2000 for the offenses committed there, including theft of the car. The supreme court disagreed that all the crimes committed that night were part of the “same criminal episode” even in light of Nelson’s continued use of the stolen car to commit the next crimes. Thus, the supreme court held that the speedy-trial time period for the Pulaski County crimes began to run from the date he was arrested by Pulaski County authorities, not the date he was arrested by Faulkner County authorities. See id.
We find that Nelson v. State, supra, is controlling precedent. In the present appeal, the argument is less convincing than Nelson’s. Appellant Yancy was charged with breaking and entering a vehicle (the Bronco) on the same date he was seen acting suspiciously with another vehicle (the Ranger) in a different parking lot. These are different vehicles, different locations, and different victims. We hold that the time for speedy trial commenced to run on the date of arrest for the theft by receiving the Ranger truck, August 18, 2001, and as such, the trial conducted on that charge in July 2002 was timely for speedy-trial purposes.
Affirmed.
Bird, Baker, and Crabtree, JJ., agree.
Griffen and Roaf, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Marie Caffey appeals the Workers’ Compensation Commission’s denial of benefits for injuries she suffered after slipping and faffing in appellee’s manufacturing plant just minutes before she clocked in at the beginning of her shift. For reversal, appellant argues that because the sole question presented at the hearing concerned whether she was performing employment services at the time the injury occurred, the Commission erred in denying benefits based on her failure to present medical evidence of her injuries, supported by “objective findings.” On cross appeal, appellee, Sanyo Manufacturing Corporation, concedes that the sole issue tried at the hearing was whether appellant was performing employment services. Appellee, however, does argue that the Commission erred in finding that appellant was performing employment services at the time of her injury. We reverse on appeal and affirm on cross appeal.
Testifying that she had been employed with appellee for thirty-seven years, appellant stated that on December 14, 2001, she arrived at the plant at approximately 7:20 a.m. As required by appellee, appellant showed her identification badge to a guard at the entrance of the parking lot. After parking her vehicle, she walked to a second guard shack where she displayed her identification badge to another guard. She then walked through double-doors into the plant and down the hallway to the clock-in station. Appellant fell within five feet of the clock.
After several co-workers helped her from the floor, appellant’s injuries were checked by the company nurse before she went to work. Later, when appellant began hurting in her groin and right knee, she returned to the nurse’s office. Appellant was then treated by Dr. Sudhir Kumar, the plant physician. Appellant did not return to work that day or the following day. Appellant was also seen by Dr. Apurva Dalai, an orthopedic surgeon. At the hearing, appellant stated that she was “still working although work aggravates” her condition and that she had not been off work except when Dr. Kumar had taken her off work and when she attended her doctor’s appointments.
Christine Bogan, a thirty-three-year employee of appellee, testified that she saw appellant on the morning of December 14, 2001. According to Bogan, she was walking toward the clock-in location when she saw two other employees assisting appellant from the floor. She noticed that there was water on the floor that had been “tracked in” by other employees entering the area.
Sandra Taylor, the manager of appellee’s human resources department, stated that appellant was an hourly employee and that appellant’s pay would not begin until 7:30 a.m., which was the start time of the factory line. Taylor’s records establish a clocked in-time for-appellant as 7:20 a.m. on the date of her injury. Taylor also noted that employees must show identification at the guard shack in the street before parking their vehicles and again at a second guard shack before entering the plant. Taylor stated that appellant was approximately 200 feet from her work station when the injury occurred.
In reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). These findings will be affirmed if supported by substantial evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. and St. Paul Fire & Marine Ins. Co. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). In an appeal from the Workers’ Compensation Commission, the question is not whether the evidence would have supported findings contrary to those of the Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).
For her sole point on appeal, appellant argues that the Commission erred in considering and adjudicating her case on the basis of whether there was medical evidence of her injuries based on objective findings. Appellant contends that the critical issue to be determined by the ALJ was whether she was involved in employment services at the time of her injury and that this issue was the only issue litigated by the parties.
Prior to the hearing, both parties announced that the com-pensability of appellant’s claim was the issue to be presented. Both parties stated that they recognized and understood that the only issue to be tried was the compensability of appellant’s claim. This understanding was made known to the ALJ at the hearing. Here, appellee agrees that the case was adjudicated solely on the issue of whether appellant was performing employment services at the time she suffered the injury. However, appellee argues that any error is harmless because the case should be reversed on other grounds.
In Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987), our supreme court held that it is error for the Commission to base its denial of benefits on a finding of fact that was not an issue or developed by evidence. Because both parties agreed to limit the issue to be presented and the record establishes that the case was adjudicated solely on the issue of whether appellant was performing employment services, we reverse the Commission on direct appeal.
As noted above, the Commission found that appellant was performing employment services when the injuries occurred. On cross-appeal, appellee asserts that appellant was not performing employment services at the time she sustained the injuries, and therefore, her claim should be denied in its entirety. For reversal, appellee adopts the statements made by Commissioner Yates in his concurring and dissenting opinion. Commissioner Yates noted that appellant was an hourly employee who was required to clock-in before reporting to her work station by 7:30 a.m. Further, Yates noted that appellant slipped and fell after she entered the building but before she clocked in. Yates argues that the facts of this case are similar to those in Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). In Hightower, the claimant was injured when she fell on her employer’s parking lot before entering her work area. In the present case, the Commission, adopting the opinion of the ALJ, found that appellant was performing employment services at the time of her fall, citing Shults v. Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.2d 399 (1998). In Shults, the claimant, a school custodian who had just arrived at work and had not clocked in, fell while entering the school building to disarm the alarm. This court found the injury compensable because the claimant was on his way to check the alarm system, a duty that advanced his employer’s interest.
A “compensable injury” is defined as “an accidental injury . . . arising out of and in the course of employment . . . .” Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed . . . .” Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2003). An employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer.” White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The test for determining whether the employee was performing employment services at the time of the injury is “whether the injury occurred within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).
In the case at bar, appellant was required to exhibit her identification before entry into the parking lot. After parking her vehicle, she was required by her employer to walk to a second guard shack and again display her identification badge. Then, appellant was required to enter the manufacturing plant, walk down a hallway, and clock in. Although all of these were requirements of her employer, appellant was not paid until she was at her work station and her shift began at 7:30 a.m. The testimony demonstrates that appellant arrived in sufficient time to perform the identification procedure and clock in although she was not paid for her compliance. We do not, however, view payment for these services as determinative of employment services. Appellant’s actions were not only required by appellee, but the acts also advanced appellee’s interest. We hold that substantial evidence supports the Commission’s decision that claimant was performing “employment services” when she slipped and fell on her way to clock in for the morning shift and therefore, affirm on cross appeal.
Reversed on direct appeal; affirmed on cross appeal.
Crabtree and Roaf, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellee, Charles Kohler, brought this civil action in the circuit court, asking for damages against appellant, Freddie Tygart, for assault and battery committed when appellant attacked him with a baseball bat. Although appellant alleged self defense, the trial court found him to be the aggressor in the situation and awarded damages to appellee for medical bills and for pain and suffering. For reversal, appellant contends that the trial court erred in its application of the doctrine of self defense and in its calculation of damages. We affirm.
On December 5, 1999, an altercation occurred between the parties, who had been involved with the same woman for some time. Tammy Lucas was appellee’s former common-law wife in another state and had three children with him. Both men testified that Ms. Lucas had lived with each of them off and on; one characterized her as a “floater,” and the other described their relationship as “seasonal.” At the time of the altercation, Ms. Lucas was not living with either of the parties, but, according to appellant, was presently in a relationship with him.
Appellant testified that he was supposed to meet Ms. Lucas at the Spanish American Restaurant. When he arrived about thirty to forty-five minutes late, he noticed appellee’s vehicle at the restaurant. Appellant left, but returned sometime later. Upon his return, he saw appellee leaning through the window of the truck appellant had loaned to Ms. Lucas. Appellant said appellee’s head and shoulders were inside the truck. Appellant stated that he thought something might have been wrong but admitted that he did not see or hear anything that would justify this belief, other than the fact that appellee was leaning through the window. Appellant testified that he yelled at appellee, cursing him, and that when appellee turned around, he had a whisky bottle in his hand that he “raised towards” appellant. Appellant stated that he then grabbed a baseball bat from the back of his truck, approached the truck Ms. Lucas was sitting in, and struck the back of the truck with the bat as a warning to appellee. According to appellant, appellee was turned away from the door of the truck, facing appellant’s direction, and was standing near the truck where the cab joins the bed. Appellant struck appellee several times with the baseball bat, even hitting him after he had fallen to the ground.
Appellant contended that he acted in self defense and that his actions were justified because of the circumstances surrounding the encounter. He said that from the time he first became involved with Ms. Lucas in 1997, he had received numerous threats from appellee. Further, appellant stated that when he saw appellee leaning in the truck where Ms. Lucas was sitting, he decided he ought to investigate the situation because appellee had “been known to beat on her.” He admitted, however, that appel-lee was not beating or hurting anyone when he arrived. He further acknowledged that he could have called the police, but did not do so because he believed it would do no good.
Appellee testified that on the day of the altercation, he and his children had followed Ms. Lucas to the restaurant and that he had “tapped” the rear of her vehicle with his when they were waiting at a red fight. According to appellee, after he made contact with Ms. Lucas’s bumper, she leaned out her window and told him to follow her to the restaurant, where she offered to buy his dinner. He said he told her that he was not hungry but that she could take the children into the restaurant for dinner while he waited outside. He admitted to having a drink while he waited. Appellee testified that he remembered Ms. Lucas coming out of the restaurant but that he did not remember anything that occurred after that. Appellee admitted that he and appellant had exchanged numerous threats over the course of time.
Donna Green, the proprietor of the restaurant, testified that when she came out to the parking lot to leave, she saw someone leaning into Ms. Lucas’s truck, “arguing and fussing and fighting.” She saw appellant get out of his truck and hit the tailgate of the truck Ms. Lucas was in with a baseball bat. She then went inside to call the police. Ms. Green testified that her vehicle was blocked in by appellee’s van and appellant’s truck and that the incident scared her.
Sergeant Mark Willhite testified that he was dispatched to the disturbance at the Spanish American Restaurant. At the scene, Ms. Lucas was complaining about damage to the vehicles, and the sergeant noticed what appeared to be recent damage to the front of appellee’s vehicle and the back of the vehicle Ms. Lucas was driving. Appellant was not present when Sergeant Willhite arrived at the scene. The sergeant testified that appellee appeared to be intoxicated, that he was argumentative and pushy, and that he would not follow directions. Willhite said that appellee did not mention that he had been hit with a baseball bat but did say that he had been “swung at.” Sergeant Willhite took appellee to the Sheriffs Department to test his blood-alcohol content, the results of which confirmed the sergeant’s observation that appellee was intoxicated.
Appellant contends that the trial court wrongly applied an objective standard, that of a reasonable person or reasonable behavior, in determining that he did not act in self defense. Appellant argues that the trial court should have focused only on his perception of threatened force, not what a “reasonable man” might have done. We have reviewed the comments and ruling by the trial court and conclude that the law regarding self defense was correctly applied to this situation.
When a civil case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000).
Our research reveals a paucity of recent case law dealing with civil battery and the use of the affirmative defense of self defense in civil cases. In Magness v. State, 67 Ark. 594, 50 S.W. 554 (1899), the-supreme court presented a thorough discussion of self defense, citing numerous authorities. In this discussion, the Magness court referred to Smith v. State, 59 Ark. 132, 26 S.W. 712 (1894), wherein the court stated that in ordinary cases of one person killing [causing physical harm to] another in self defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of [physical harm caused to] the other was necessary. The court made clear that the danger must appear urgent and pressing to the person acting in self defense, not to a hypothetical reasonable man. However, to be justified in acting upon the facts as they appear to him, the actor must act with due circumspection. The Magness court noted that when a person is threatened with loss of life or great bodily injury, “he is compelled to act upon appearances, and determine from the circumstances surrounding him at the time as to the course he shall pursue to protect himself. When the danger is pressing and imminent . . . he is, from necessity, the judge of his own action.” Magness, 67 Ark. 594 at 603, 50 S.W. 554 at 557. However, the court recognized a limitation on this right to judge one’s own actions: the law imposes upon one the duty to act with due circumspection and without fault or carelessness on his part. Id.
Magness and Smith both dealt with killings rather than batteries, thus the use of the word “killing” rather than the broader term “causing physical harm to.” As the dissent observes, causing physical harm is not the same as killing. There is, however, no practical difference when applying the law regarding self defense: whether one kills another or merely batters him with a baseball bat, he must have acted with due circumspection if he is to prevail on a claim of self defense.
In order for a person’s actions to be justified as self defense, the court must find that circumstances and appearances as presented to the actor were at the time of the incident sufficient to induce in him a reasonable belief that he was in actual and imminent danger of losing his life, or suffering great bodily injury. Id. “Unless such was the case, it cannot be said that he acted without fault or carelessness, or that he was justified or excused. It is not sufficient, however, to justify or excuse the killing [physical harm], that the circumstances and appearances were sufficient to inspire the accused with such a belief; but the belief must also have been actually and in good faith entertained by him.” Id.
In Downey v. Duff, 106 Ark. 4, 5, 152 S.W. 1010, 1011 (1912), involving a suit for damages for assault and battery, the supreme court stated the well-settled rule that while the jury must view the transaction from the defendant’s standpoint, that view must be one of good faith and free from fault or carelessness on defendant’s part. “A man cannot become frenzied from any of the passions that ordinarily move men to acts of violence, and then require of the jury that they imagine their perception and judgment to be so befogged that temporarily their reasoning faculties do not control their actions.” Id. In Tankersley v. Fortner, 170 Ark. 1014, 1016, 282 S.W. 354, 355 (1926), the court noted that “if one is assaulted, he may prove the aggression of his adversary, not only in mitigation of damages, but as an absolute defense, against liability for any damage, provided he used no more force in repelling the assault than appeared to him to be reasonably necessary for that purpose. This is true in a prosecution for a violation of the law as well as in a civil suit for damages.” In Garner v. Scott, 225 Ark. 942, 286 S.W.2d 481 (1956), the court held that a jury instruction was erroneous because it permitted the defendant to be the sole judge of the method employed or the force necessary to defend himself. The court stated that the jury instruction should have read that the defendant was required tq use only such means as were necessary under the circumstances to prevent harm, or acting as a reasonably prudent person, to have tried to avoid harm to himself in some other way. Id.
After reviewing the law and the various treatises cited therein, we conclude that when determining whether an action can be justified as self defense, the fact finder must view the circumstances surrounding the accused, as they appeared to him, and then ask: (1) Did the accused believe himself to be in imminent danger? and (2) Were there circumstances that would justify such a belief in the mind of a person of ordinary firmness and reason? See Magness, supra.
There has been some concern that comments made by the trial judge indicated that he was in fact telling appellant that, because he was involved with appellee’s ex-wife, he should just expect problems of this nature and that a reasonable man in appellant’s situation should expect that he and the woman would be hunted. It appears to us that the judge was speaking of the past conduct of the parties and the circumstances that led up to the altercation. The trial judge’s comments may have been ill advised, but they were in the nature of personal observations and not a statement of the law of self defense. However inappropriate some of the comments were, they did not dictate or result in a misapplication of the law regarding self defense.
The trial judge addressed both parties in observing that their prior conduct, the numerous threats and following each other to various locations, while not right, was “pretty normal, predictable behavior,” given the fact that they were both involved with the same woman. A reading of the entirety of the judge’s comments leads us to believe that, rather than affording appellee an excuse to “hunt” appellant and Tammy Lucas, the judge was considering the totality of the circumstances as to the relationship between these parties in determining whether appellant’s conduct was justified. The dynamics of the relationships between these two men and Ms. Lucas certainly affected appellant’s perception of the circumstances that prevailed at the time of the incident.
The judge noted that Ms. Lucas had been with appellee on an off-and-on basis for a number of years and knew how to deal with him better than did appellant. He found that appellant was the aggressor in the situation and that he had “stepped in between” Ms. Lucas and appellee. Appellant’s own testimony established that appellee was not “beating or hitting” anyone when he arrived. Appellant admitted that he was already irritated about appellee “ramming” his vehicle that Ms. Lucas was driving. Both parties had been threatening each other off and on for about eighteen months. Appellee was not the one “on a hunt” here; appellant first left the restaurant when he saw that appellee was there, then he returned and chose to intervene in the encounter between appellee and Ms. Lucas. He yelled obscenities at appellee, grabbed a bat out of his truck, approached appellee, who raised a whisky bottle toward him, struck the back of the truck appellee was standing beside to “warn him,” and then struck appellee numerous times with the bat.
The judge’s comments do not suggest at all that a husband has a right to hunt down and attack his wife or ex-wife. He does not suggest that Ms. Lucas was not worthy of protection. His observations reflect the reality that there was an on-going relationship of enmity between these parties; that they had all functioned thus far without the need to batter one another; that Ms. Lucas was accustomed to dealing with both appellant and appellee and, in fact, continued through the years to have personal relationships with both; and that there was nothing about the situation on December 5, 1999, that, would justify appellant’s thinking that Ms. Lucas suddenly needed his forceful protection. Appellant interjected himself into this situation in an aggressive manner and followed through with aggressive actions.
All of these factors support the finding by the trial court that appellant was the aggressor in the situation and not entitled to a claim of self defense. We cannot say the findings of the trial court were clearly erroneous or clearly against the preponderance of the evidence.
Appellant’s second argument is that the trial court erred in its calculation of damages awarded to appellee for pain and suffering. After awarding $1,128.18 for out-of-pocket medical expenses, the trial court considered general damages for pain and suffering. The trial court first stated that four times the special damages would be appropriate. When questioned as to how he arrived at this figure, the trial judge modified the award to the sum of $5,000 for pain and suffering, plus the medical expenses. Appellant argues that the sum of $5,000 is so disproportionate to appellee’s two-week recovery time as to be unreasonable.
The amount of damages to be awarded for personal injuries rests largely in the discretion of the trial judge. See Norris v. Johnson, 214 Ark. 947, 218 S.W.2d 720 (1949). In Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), the supreme court noted that precedents are of scant value in appeals of this kind, and that in each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the trier of fact. After due consideration of the proof in the case before us, we cannot say that the award of damages for pain and suffering was such that it either shocked the conscience of this court or that it demonstrated passion or prejudice on the part of the trial judge.
Affirmed.
Robbins, Neal and Vaught, JJ., agree.
Pittman and Baker, JJ., dissent. | [
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John B. Robbins, Judge.
This appeal concerns the ownership of the contents of a bank safe-deposit box owned by the deceased, Francis Nickerson. The bank, First Federal of Arkansas, F.A., filed an interpleader action in December 2001 when it opened safe-deposit box number 132, discovering cash, coins, and two certificate of deposit books under the name of Mr. Francis E. Nickerson who had died in September 1990. The ownership card could not be found. The interpleader action requested that the bank be allowed to turn over the items into the registry of the court and allow the trial court to determine ownership. The suit named appellants Ivan and Gene J. Atkinson, nephews of the deceased, as defendants, and appellee Bonnie Knowles, niece of the deceased, as a defendant. Appellants and appellee are siblings.
Appellants answered by asserting that no will was ever probated for Nickerson and that his property should pass through the laws of intestate succession and be divided equally among the three defendants. Appellee answered by attaching an unprobated will of Nicker-son executed in 1988 naming her as sole beneficiary as evidence that the contents of the safe-deposit box should be vested in her, citing to Ark. Code Ann. § 28-40-104 (1987). Appellee also cross-complained against the bank for negligence in not having informed her of the safe deposit box within five years of Nickerson’s death, should she not be awarded the entirety of the box’s contents. Appellants moved for judgment on the pleadings, and appellee moved for summary judgment. After a hearing, appellee’s motion was granted on the basis that she met the requirements of section 28-40-104. Appellants appeal. We affirm.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001). Normally, in an appeal from a summary judgment, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but when the parties agree on the facts, we need only determine whether the appellee was entitled to judgment as a matter of law. See Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). When both sides agree that there are no material facts remaining, summary judgment is an entirely appropriate means for resolution of the case. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000). The question in the case at bar is one of law. A trial judge’s conclusion on a question of law is given no deference on appeal. See Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996).
The basic rule of statutory construction is to give effect to the intent of the General Assembly. Turnbough v. Mammoth Spring Sch. Dist., 349 Ark. 341, 78 S.W.3d 89 (2002). 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. Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).
The relevant statutory law is found at Ark. Code Ann. § 28-40-104 (1987), which reads:
(a) No will shall be effectual for purposes of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.
(b) Except as provided in § 28-40-101, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the probate court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence if:
(1) No proceeding in probate court concerning the succession or administration of the estate has occurred, and;
(2) Either the devisee or his successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.
(c) The provisions of subsections (b) and (c) of this section shall be supplemental to existing laws, relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal § 28-40-103 and subsection (a) of this section or any other law not in direct conflict herewith.
The 1949 Probate Code provided: “No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.” Ark. Stat. Ann. § 62-2126 (Repl. 1971). The current recitation is found in section 28-40-104(a) (1987). In 1981, however, the legislature adopted Act 347, which creates an exception to the Code’s sweeping rejection of unpro-bated wills by adopting the language found in section 28-40-104(b) and (c). The statute manifestly gives effect to a testator’s unrevoked will, though never probated, if the two specified conditions are satisfied. Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982). All parties agree that there have never been probate proceedings regarding the will, thus meeting the first requirement.
Appellants argue, as they did to the trial judge, that appellee failed to show “possession” of the contents of the safe-deposit box and thus failed as a matter of law under subsection (b)(2). Appellants cite to Songer v. Wiggins, 71 Ark. App. 152, 27 S.W.3d 755 (2000) (deciding what constitutes “possession” of the farm property devised) and Johnson v. Johnson, 292 Ark. 536, 539, 732 S.W.2d 121, 123 (1987) (holding that certificate of deposit in bank, though interest was paid to widow, remained in actual possession of the bank; thus widow’s claim to have possession of the certificate failed where she did not have actual possession). Appellee agrees that she did not possess the contents of the safe-deposit box. Appellee asserts that “the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.” Ark. Code Ann. § 28-40-104(b)(2). That being the case, appellee contends that this situation fits within the parameters of subsection (b)(2), which thus allows evidence of the testator’s intention and provides the evidence that supports the trial court’s conclusion that appellee is the owner of the box contents. The trial judge concluded that appellee was correct.
We distinguish the present situation from that found in Johnson v. Johnson, supra. In the Johnson case, Mr. Clarence Johnson died in 1978 survived by his widow of many years, appellant Opal Johnson, and three children of a former marriage, the appellees. His will, which was never probated, divided his estate into two trusts. Opal was to receive the net income from both trusts until her death, but if she remarried, the income from the family trust would terminate and the corpus would be distributed to the appellees. When Clarence Johnson died, his estate consisted of a farm and several certificate of deposit. The certificates of deposit were consolidated into one certificate for $49,000 issued to “The Estate of Clarence Johnson.” The certificate remained with the bank, and interest generated by the certificate was paid to Opal with the approval of the appellees. After more than five years passed from their father’s death, appellees requested the chancery court to declare their father intestate and distribute his property accordingly. Opal responded by presenting the unprobated will. Opal also asserted that she was in “possession” of the certificate of deposit inasmuch as she received the interest on the certificate. She cited to what is now Ark. Code Ann. § 28-40-104. The chancellor decided that the statute did not apply, and the supreme court agreed. The supreme court construed the statute to mean that if a claimant asserts possession, it must be actual and not constructive, which was not met when the actual certificate remained with the bank. Because Opal contended that she was in possession of the property, the supreme court had no reason to address the applicability of the alternative statutory condition, i.e., a situation in which no one claimed or possessed property of a decedent during the five-year term in which to conduct testacy proceedings.
This is the first case construing this alternate language in subsection (b)(2), and we hold that the trial judge’s application of the law to the undisputed facts was correct. A plain reading of the statute, giving the words their ordinary and plain meaning, leaves us with no other reasonable conclusion. This unique situation appears to be just the type of scenario that the statute was designed to remedy.
Affirmed.
Gladwin and Neal, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellant, Garrett Sheets, appeals the trial court’s dismissal with prejudice of his complaint to enforce his teacher employment contract. For reversal, appellant argues (1) that appellee, Dollarway School District, breached the written contracts between the parties for the 1999-2000 and 2000-01 school years when it failed to strictly comply with the Teacher Fair Dismissal Act (TFDA or the Act) and its own personnel policies; and (2) that his contract was automatically renewed on May 21, 2000, and thus, he was a “teacher” as defined by the TFDA during the 2000-01 school year and entitled to the benefits of the Act regardless of the duties relegated to him. We reverse in part and affirm in part.
Procedural History
On July 27, 1999, appellant entered into a written teacher’s contract with appellee. The contract provided that appellant was to receive a $28,250 salary as the junior high in-school suspension teacher, the junior high head basketball coach, the assistant junior high football coach, and the assistant senior high baseball coach for the 1999-2000 school year. Superintendent Thomas Gathen later reassigned appellant to two elementary physical education classes in lieu of the two in-school suspension classes. In January of2000, appellant was reassigned from head junior high basketball coach to assistant junior high basketball coach. His salary was not affected by his job reassignments.
On April 11, the Dollarway School Board voted to discontinue appellant’s coaching duties as head junior high basketball coach for the 2000-01 school year. Appellant was presented with a new “teacher’s contract” on May 12, 2000, which stated his duties would be “Middle/Jr. High Teacher.” The new contract provided that appellant would be paid $23,400 as a classroom teacher and would work as the physical education instructor and in-school suspension monitor. This contract did not provide for appellant to perform coaching duties or for payment of any coaching duties. This decrease resulted in appellant incurring a net salary reduction of $4,850. Appellant refused to sign the contract and opted, instead, to endorse his previous contract for the 1999-2000 school year. After asking for a hearing on the nonrenewal of his coaching duties, the school board held a hearing on June 8, 2000, and again voted not to renew appellant’s coaching contract. During the summer, appellee’s superintendent offered appellant the assistant coach position with the football and baseball teams and an additional payment of $4,200, but appellant declined the offer. Appellant did, however, continue to work as the in-school suspension monitor for the 2000-01 school year.
On August 22, 2000, appellant filed a petition for a writ of mandamus alleging that appellee breached its contract with appellant by violating the TFDA and that such breach entitled appellant to all the monetary benefits which he had under the 1999-2000 contract, plus interest and attorney’s fees. Appellant later amended his complaint to include a claim for breach of contract.
When appellant’s contract was not renewed for the 2001-02 school year, appellant amended his complaint on July 23, 2001, alleging that the district had once again failed to strictly follow the provisions set out in the TFDA and such failure was a breach of his 2000-01 contract. After trial on October 24, 2001, both parties submitted briefs and findings of fact and conclusions of law. On March 20, 2002, the trial court, finding for Dollarway School District, accepted as its judgment appellee’s proposed finding of fact and conclusions. From that order comes this appeal.
The trial judge found that appellant was a “probationary teacher” as defined by Arkansas Code Annotated section 6-17-1502(a)(2) (Repl. 1999) and was, therefore, ineligible to appeal under the provisions of the TFDA. The trial court also concluded that because appellant was a probationary teacher the school dis trict was not held to a standard of strict compliance mandated by Arkansas Code Annotated section 6-17-1503 (1999). He reasoned that allowing a probationary teacher to superimpose the “strict compliance” standard of the Act on the breach-of-contract action would extend the benefits granted by the Act for a period of time equal to the statute of limitations for a contract claim. The trial judge held that appellant must prove by a preponderance of the evidence that appellee materially breached his contract.
The trial judge then compared the five-year statute of limitations for a contract claim to the specific time limitations of seventy-five days for an appeal by a nonprobationary teacher and concluded that the legislature did not intend to give probationary teachers a greater period of time to bring a common-law cause of action than nonprobationary teachers had to bring an appeal of the decision of the board.
The trial court further found that even assuming that appellant was entitled to judgment on the contract, he had failed to mitigate his damages by refusing to accept the offer of additional coaching duties with the district or the offer of employment from the Altheimer Unified School District. Last, the trial court determined that appellant was not a teacher, probationary or otherwise, during the 2000-01 school year because his position of in-school suspension monitor did not require certification as a condition precedent to employment.
Teacher Fair Dismissal Act
Upon review, although we are mindful that it is not the function of the appellate court to substitute its judgment for the trial court, the question of whether or not a school district has strictly complied is a question of law. Jackson v. Eldorado Sch. Dist., 74 Ark. App. 433, 48 S.W.3d 588 (2001).
The TFDA defined “teacher” as one employed by an Arkansas public school district who is required to hold a teaching certificate from the Department of Education as a condition to employment. “Probationary teacher” is defined as one who has not completed three successive years of employment in the district in which the teacher is currently employed; further, a teacher is deemed to have completed the probationary period by employment in an Arkansas school district for three years. Ark. Code Ann. § 6-17-1502(a)(l) and (2) (Repl. 1999).
Arkansas Code Annotated section 6-17-1506 (Repl. 1999) provides:
(a)Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument unless:
(1) By May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed;
(2) (A) A notice of nonrenewal shall be delivered in person to the teacher or mailed by registered or certified mail to the teacher at the teacher’s residence address ....
(B) The notice of recommended nonrenewal of a teacher shall include a statement of the reasons for the recommendation, setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense ....
Arkansas Code Annotated section 6-17-1503 (Repl. 1999) states in pertinent part:
A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.
Arkansas Code Annotated section 6-17-1504 (Repl. 1999) states:
(a) Each teacher . . . must be evaluated in writing annually.
(b) Evaluation criteria and procedures shall be established in the manner prescribed in subchapter 2 of this chapter.
(c) Whenever a superintendent . . . believes or has reason to believe that a teacher is having difficulties or problems meeting the expectations of the district . . . and [the superintendent] believes the problems could lead to termination or nonrenewal of contract, the administrator shall bring the problems and difficulties to the attention of the involved in writing and shall document the efforts which have been undertaken to assist the teacher ....
For reversal, appellant asserts that the school district failed to stricdy comply with the TFDA and its own personnel policies and such failure breached both the 1999-2000 and the 2000-01 teacher’s contracts. Appellant states that the district violated Arkansas Code Annotated sections 6-17-1504(a) et seq. by failing to provide him with an annual teacher evaluation, notice of his nonrenewal of his contract and his right to a hearing before the school board on or before May 1 of the contract year, and a copy of the district’s personnel policies. He further states that appellee denied him the right to a hearing before the school board voted to nonrenew his contract. Appellant also argues that the strict compliance standard equally applies to probationary teachers as well as nonprobationary teachers.
The application of the TFDA to a probationary teacher was addressed by our supreme court in Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). In that case, Love had worked as a certified teacher for a period of one year and was a probationary teacher as defined by Ark. Code Ann. § 6-17-1502. In July, she learned that she would not be rehired for her position in the upcoming school year. In April of the following year, she filed suit alleging that she had not received notice of nonrenewal by May 1 as is required by Ark. Code Ann. 6-17-1506(a) (Repl. 1993). Our supreme court determined that Love was a teacher as defined by the TFDA, and held that school districts must strictly comply with the notice provision of the TFDA. (Love, supra (citing Ark. Code Ann. § 6-17-1507)).
In Foreman Sch. Dist. #25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001), our supreme court considered another “probationary teacher” case. Steele, a first-year employee, received notice of a nonrenewal recommendation on March 21, 1994, citing various managerial and disciplinary problems as the basis for the nonre-newal recommendation for the school year of 1994-95. Steele requested a hearing, sought to obtain additional information about the basis of the nonrenewal recommendation, and asked for a five day extension of time to prepare for the hearing after receipt of the requested information. The district not only failed to agree to an extension but also failed to hold a hearing before May 2, 1994, the tenth day after Steele’s request for a hearing was made.
At the hearing held on May 6, 1994, Steele objected, noting that the hearing was outside the ten day period provided by the TFDA, and sought an automatic renewal of his contract for the 1994-1995 school year. The district refused to renew Steele’s contract, and he filed a breach of contract action against the district. Both parties sought summary judgments. Following a hearing, the trial court granted Steele’s motion, finding that his contract was automatically renewed because the school district failed to strictly comply with the TFDA which rendered the district’s nonrenewal attempt void.
On appeal, the school district argued (1) that as a probationary teacher, Steele could not challenge the school board’s decision of nonrenewal, (2) that even if Steele could appeal, his action was barred under the seventy-five day limitations period under the TFDA, and (3) that he had no contract claim because a contract did not exist between the parties. Steele did not challenge the void nonrenewal; but instead, litigated the breach of his contract that had automatically renewed when the district failed to strictly comply with the TFDA. Steele asserted that his complaint was not barred by the seventy-five-day limitation because he was a probationary teacher, not a nonprobationary teacher. Therefore, he was only bound by the five-year statute of limitation for breach of a written contract.
Agreeing with Steele’s argument, our supreme court stated:
[Bjecause the attempted nonrenewal did not strictly comply with the terms of the TFDA, the action became void, and on May 1, 1994, Steele’s contract was automatically renewed under the terms of his original contract . . . Steele was a contracted probationary teacher for the 1994-1995 school year.
The District alleges that this action is controlled by the TFDA, which does not allow an outside breach-of-contract claim. However, the District’s failure to strictly comply with the TFDA’s terms rendered the District’s actions void, and takes this lawsuit outside the confines of the TFDA. This is not an appeal from the decision for nonrenewal, which would require us to consider the viability of an appeal by a probationary teacher. Rather, the resulting breach became an original cause of action properly filed in circuit court.
Id. at 202, 61 S.W.3d at 806-07.
Commensurate with the Love and Steele decisions, we hold that the strict compliance standards of the TFDA apply to probationary teachers. Appellant’s contracts for 1999-2001 required him to have an Arkansas teaching certificate, and he was, in fact, a qualified teacher as defined by the TFDA. The TFDA set out the requirements which the district must meet in order to prevent the automatic renewal of a teacher contract. The Act requires notification by the superintendent of nonrenewal recommendation by May 1 of the contract year. The Act requires the district to evaluate the teacher annually, see Ark. Code Ann. § 6-17-1504(a), give the teacher, in writing, problems that could result in nonrenewal of the contract, see Ark. Code Ann. § 6-17-1504(c), and assist the teacher in correcting the problems, see Ark. Code Ann. § 6-17-1504(c). Here, although the record does support that some assistance was provided to appellant in an attempt to salvage his basketball programs, the district failed to provide written notice of the problems or evaluations as required by the Act. Further, appellant was not evaluated, not advised in writing of problems that could result in nonrenewal of his contract, and not provided with notice of the nonrenewal recommendations until after he was notified by the April 25, 2000, letter signed by the district’s superintendent that his coaching duties were eliminated. The failure of the district to strictly comply with any one of these provisions creates by operation of law a renewal of the teaching contract for the upcoming year. See Ark. Code Ann. § 6-17-1506 (Repl. 1999).
Damages
Although the failure of the district to strictly comply with the TFDA rendered the nonrenewal of his contract for the 2000-01 school year void, appellant must establish his damages for breach of contract with the same specificity as any other common law contract claim. In Marshall Sch. Dist. v. Hill, 56 Ark. App. 134, 140, 939 S.W.2d 319, 321-22 (1997) (citing Western Grove Sch. Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986)), this court stated:
Despite the argument being raised by Mr. Hill, we find that the disposition of this issue is dictated by Western Grove Sch. Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986). In that case, a teacher prevailed on a contract dispute under the Arkansas Teacher Fair Dismissal Act and the supreme court discussed possible mitigation of damages through other employment. The court held, in such cases, the aggrieved party must use reasonable care, effort, and expenditure to mitigate damages. The court also held that the proper measure of damages is loss sustained by the teacher, less any mitigation earnings that may be realized through subsequent employment.
Marshall, supra.
Appellant’s 1999-2000 contract provided that he would receive a salary of $28,250 as the junior high in-school suspension teacher, the junior high head basketball coach, the assistant junior high football coach, and the assistant senior high basketball coach. The district voted to discontinue appellant’s coaching duties for the following year and offered him a new contract as a classroom teacher for $23,400, which was $4,850 less than the previous year. Appellant refused to sign the offered contract and instead, indorsed his previous one.
Superintendent Gathen testified that during the summer of 2000, he was authorized by the school board to offer appellant the positions of assistant junior high football coach and assistant baseball coach along with the compensation as a classroom teacher. Appellant refused this offer. According to Gathen, had appellant accepted this offer, he would have received $900 as assistant baseball coach and $3,300 as assistant junior high football coach. Instead, appellant chose only to receive the salary of a classroom teacher. The difference in what appellant would have earned had he accepted the coaching assignments and what he earned during 1999-2000 school year was $650. Appellant’s refusal to mitigate his damages limits his damages to $650, the dif ference in what he earned under the 1999-2000 contract and what he could have earned had he accepted the offer of appellee.
Further, appellant asserts that he is entitled to attorney’s fees pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999). Section 16-22-308 states that “in any civil action to recover . . . for breach of contract . . . the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.” Appellant’s action against the school district was for breach of contract, and pursuant to the above statute, the circuit court was authorized to award attorney’s fees not subject to a specified limit. We agree with appellant that he is entitled to reasonable attorney’s fees and remand for a determination by the circuit court of reasonable attorney’s fees. Thus, we reverse this point and remand for entry of judgment consistent with this opinion.
Claim for 2001-02 contract
For his second point, appellant argues that on May 1, 2000, his 1999-2000 contract was automatically renewed and therefore, he was a “teacher” as defined by the Act during the 2000-01 school year regardless of the duties relegated to him by the superintendent. Further, he argues that when the school district voted to nonrenew his contract for the 2001-02 school year on May 8, 2001, without allowing appellant to have a hearing, the district violated the TFDA and its own personnel policies for the 2001-02 school year.
In order to obtain the benefits under the TFDA, the employee must meet the definition of a teacher set out in Arkansas Code Annotated section 6 — 17—1502(a)(1). A teacher is defined “as any person . . . employed in an Arkansas public school district who is required to hold a teaching certificate from the Department of Education as a condition to employment.” See Ark. Code Ann. § 6-17-1502(a)(l).
For the school year of 2000-01, appellant worked as the in-school suspension monitor. It is undisputed that the position did not require appellant or any other person occupying the position to hold a teaching certificate from the Department of Education. Appellant refused to sign his teacher’s contract, which required him to have a teacher’s certificate, and during the summer, he refused to accept additional coaching duties which also required him to have a teacher’s certificate. Instead, he indorsed his previous contract and opted to work as the in-school suspension monitor, a non-certified position.
On May 1, 2001, Gathen hand-delivered a letter to appellant notifying him of his recommended nonrenewal based on the lack of need for the 2001-02 school year as the in-school suspension monitor. On May 8, 2001, the district accepted the non-renewal recommendation. Appellant testified that he did not request a hearing before the board after receiving that letter because the board had already decided not to renew his contract. In Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994), our supreme court stated that a teacher or a coach is not required to ask for a school board hearing after the board has already taken action on his contract.
Appellant, although receiving the pay of a teacher, failed to meet the requirements set forth in Arkansas Code Annotated section 6-17-1502(1), and therefore, he is not a teacher for the purposes of the Act. Since appellant’s only remedy was to pursue a common-law action on the breach-of-contract claim it was necessary that he serve as a teacher as defined by the TFDA. Thus, appellant lost the benefits provided by the TFDA and cannot pursue an action under the TFDA. Having held that appellant was not a teacher for the purpose of the Act for the school year 2001-02, we decline to address the issue of mitigation for that school year.
The procedures used by the district did not comply with the TFDA. However, appellant was not a teacher for the school year 2000-01 and therefore, the failure of the district to comply with the requirements of the Act does not enure to the appellant’s benefit. Therefore, we do not find that the decision of the trial court was erroneous and affirm.
Reversed in part; affirmed in part.
Stroud, CJ., Bird, and Griffen, JJ., agree.
Roaf, J., concurs.
Crabtree, J., dissents.
Although the court found that appellant failed to accept employment with Altheimer Unified School District, we note that the offer for that employment occurred during the 2000-01 school year for the following school year according to his testimony. Appellant’s argument of entitlement to a teacher contract for the school year 2001-02 is addressed in the latter part of this opinion. Because appellant was not a teacher during this time period, it is unnecessary to determine whether an actual offer was made. | [
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Sam Bird, Judge.
On July 3, 2002, this court handed down Rankin v. Director, 78 Ark. App. 174, 79 S.W.3d 885 reh’g denied, review denied (2002) (Rankin I), in which we reversed and remanded the Board’s decision denying benefits to appellant pursuant to Ark. Code Ann. § 11-10-513 (Repl. 2002) because he had voluntarily left employment without good cause connected with the work. The rationale of our reversal was that because appellant, who was an inmate at the Arkansas Department of Correction (ADC) participating in a work-release program and assigned to Nucor Steel in Blytheville, was involuntarily transferred by ADC so as to render it impossible for him to continue in Nucor’s employment, his reason for leaving his employment was not voluntary. Thus, we held that the Board’s conclusion that appellant had voluntarily left his employment was not supported by substantial evidence. Our opinion concluded with the recita tion that the matter was reversed and remanded to the Board “for further proceedings consistent with this opinion.”
Perhaps understandably, the Board took our recitation to mean that it was authorized to conduct further proceedings. After all, that is what our opinion said. On the other hand, it is not understandable how the Board could have reasonably interpreted our instruction to mean that it was authorized, sua sponte, to conduct a hearing for the purpose of determining if there was some other basis under Ark. Code Ann. § 11-10-513, aside from voluntarily leaving work, for denying benefits to the appellant. In the first place, such an interpretation is not consistent with our July 3, 2002, opinion. Secondly, although Ark. Code Ann. § 11-10-529(c)(2)(A) (Repl. 2002) authorizes this court to order that additional evidence be taken before the Board, we did not issue such a directive. Last, and perhaps most importantly, such an interpretation of our instruction contravenes the doctrine of the law of the case.
The doctrine of the law of the case provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). The doctrine prohibits a court from reconsidering issues of law and fact that were decided or issues that could have been raised on appeal, and provides that such issues are conclusively adjudicated and can no longer be litigated by the parties. Rainbolt v. Director, 6 Ark. App. 204, 639 S.W.2d 532 (1982). We have held that the doctrine is applicable to administrative agencies generally and, specifically, to the Board of Review. Id.
Almost exactly the same thing that has occurred here was prohibited in Rainbolt v. Director, 6 Ark. App. 204, 639 S.W.2d 532 (1982) (Rainbolt II) under the doctrine of the law of the case. In Rainbolt v. Director, 3 Ark. App. 48, 621 S.W.2d 877 (1981) (Rainbolt I), the claimant appealed from the Board of Review’s decision denying her unemployment benefits on the ground that she had voluntarily quit her job to accompany her spouse to a new place of residence but had not made an immediate entry and become available for suitable work in the new labor market. We reversed the Board’s decision, holding that “the Employment Security Division may be estopped to deny that appellant made an immediate entry into the labor market because of the apparent representations of its agent.” We also remanded the case to allow the State an opportunity to present evidence in rebuttal to the claimant’s estoppel defense.
We considered the remand appropriate in Rainbolt I because it was the first case in which the doctrine of estoppel had been applied to the State in a claim for unemployment benefits. However, upon remand, the Board, although receiving and considering the additional evidence that the State had presented on the issue of estoppel, concluded that the claimant was disqualified for benefits because she had quit her job for personal reasons, a basis of denial entirely different from the reason given for the denial originally. In reversing and remanding Rainbolt II, we said that our decision in Rainbolt I had become the law of the case and that issues other than estoppel were not open for consideration by the Board on remand because of the applicability of the doctrine of the law of the case. Rainbolt v. Director, 6 Ark. App. 204, 207, 639 S.W.2d 532, 534 (1982) (Rainbolt II).
Our holding in Rainbolt II is clearly controlling in the present case. Rankin I came to this court on the single issue of whether the appellant was disqualified for unemployment benefits because he had voluntarily left the employment without good cause connected with the work. We reversed, holding that there was no substantial evidence that appellant’s departure from his job at Nucor Steel was voluntary. However, on remand, instead of awarding benefits, the Board of Review conducted a hearing on an entirely different issue. From the evidence at that hearing the Board of Review concluded that claimant was disqualified for benefits because of misconduct connected with the work. This was contrary to the law of the case as established by Rankin I and was, therefore, erroneous as a matter of law.
The concurring opinion of Judge Griffen has accused the majority of remaining silent about what he calls “flagrantly injudicious conduct” on the part of the Board of Review. We do not share this characterization of our declination to discuss the manner in which the Board proceeded. Under Ark. Code Ann. § ll-10-529(c)(l), in the absence of fraud, our review of the decisions of the Board of Review is limited to a determination of whether the Board’s findings of fact are supported by the evidence and whether the Board has erred on questions of law. Our decision concludes that the Board’s action was erroneous as a matter of law, and it sets forth the bases for that conclusion. Therefore, no purpose within our jurisdiction is served by launching into an intensive examination of the actions of the Board that apparently led to its error.
We also note Judge Crabtree’s concurring opinion in which he agrees with our application of the doctrine of the law of the case to reverse the Board of Review, but he expresses his disagreement with Rankin I, decided by a three-judge panel of this court, that reversed the Board of Review’s decision denying benefits to Rankin. Whether we now agree or disagree with the decision of the three-judge panel in Rankin I is simply not pertinent to the application of the doctrine of the law of the case. Even if the Rankin I decision was wrong (and some of the majority may believe that it was), when our decision in Rankin I became final, its conclusion that the Board of Review had improperly denied benefits to Rankin on the sole ground that he had voluntarily left his employment without good cause connected with the work became the law of the case. While the holding in Rankin I can be overruled in a future case, the doctrine of the law of the case precludes the Employment Security Department, the Appeals Tribunal, the Board of Review, and this court from considering any other basis upon which benefits could be denied to Rankin in this case.
In accordance with our decision in Rainbolt II, the proceedings of the Appeal Tribunal and the Board of Review on remand were improper. Therefore, this case is again remanded to the Board of Review with instructions to enter an award requiring the Employment Security Department to pay unemployment benefits to the appellant. Also, as we did in Rainbolt II, we direct the Board to certify the record of its decision to this court within thirty days from the date thereof.
Reversed and remanded.
Vaught and Roaf, JJ., agree.
Griffen and Crabtree, JJ., concur.
Hart, J., concurs separately. | [
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Josephine Linker Hart, Judge.
This case is again before us after we ordered rebriefing in Spears v. State, 82 Ark. App. 376, 109 S.W.3d 139 (2003). As we noted in our earlier opinion, appellant, Robert Spears, was convicted of one count of possession of a controlled substance, marijuana, with the intent to deliver, and he was sentenced to five years’ imprisonment. After rebriefing, for his first point on appeal, appellant argues that the circuit court “erred in allowing ... police officers who arrested [a]ppellant to testify he failed to deny the allegations of another suspect that the bag containing drugs belonged] to [a]ppellant.” For his second point, he argues that the circuit court “erred in allowing evidence of a drug conviction by [a]ppellant’s brother for the same offense as that being faced at trial by [a]ppellant for purposes of impeaching [ajppellant’s mother’s testimony.”
In the order for rebriefing in our previous opinion, we instructed counsel for appellant to abstract, as provided in our rules, 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.” Spears, at 378, 109 S.W.3d at 140; Ark. Sup. Ct. R. 4-2(a)(5). Particularly, we noted that counsel for appellant inadequately abstracted the testimony of the witnesses and failed to abstract any of the arguments made below on the issues raised on appeal.
After rebriefmg, counsel again fails to abstract the 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 this court for decision. By way of example, counsel does not abstract all of the testimony of two police officers necessary to understand the questions presented in appellant’s first point on appeal. Also, counsel’s abstract of one colloquy related to appellant’s first issue is only one line and, in contravention of Rule 4-2(a) (5), is stated in the third person rather than the first person: “Defense counsel objects to the testimony regarding Spears’[s] lack of response.” His abstract indicates only that the court overruled the objection. In counsel’s abstract of a second colloquy related to the first issue, counsel notes only that there was a hearsay objection that was overruled by the court. In short, a review of the record establishes that counsel’s abstract of these colloquies is woefully inadequate. Likewise, counsel’s abstract of the colloquies and testimony related to appellant’s second issue remains deficient.
Thus, appellant has again failed to comply with our abstracting rules. Our rules further provide that “[i]f 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). However, rather than summarily affirming, we, in our discretion, again order rebriefing to correct the abstracting deficiencies described above. On rebriefing, counsel should, at a minimum, abstract the colloquies related to the first and second issues and take pains to abstract all of the testimony necessary to understand the questions presented to this court for decision.
Rebriefing ordered.
Robbins, Griffen, Neal, and Roaf, JJ., agree.
Baker, J., concurs.
Pittman, Gladwin, and Bird, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Appellant, Caroline Sue Ray, appeals from the circuit court’s decree of adoption, which terminated her parental rights to her minor daughter and granted the adoption of the child by appellees, Roy Thomas and Wanda Sue Sellers. Appellant argues in part that the circuit court erred in finding that her consent to the adoption was not required. We agree with appellant, and without addressing her other allegations of error, we reverse.
The facts are as follows: Appellant was incarcerated in the Arkansas prison system when, on April 23, 1999, she gave birth to her daughter. Appellee Wanda Sellers testified that after the child was two months old, she began caring for the child for two days every week. She further testified that the child lived with the child’s grandmother for a month, lived with an aunt for two months, and then lived with her and her husband. Wanda Sellers admitted that when the child first began living with them, they did not expect to adopt her; she talked to appellant and understood that the child would be returned to appellant upon her release from prison. Appellee Roy Sellers likewise testified that when the child first came to live with them, it was his understanding that the child would live with appellant after she was released from prison.
On March 28, 2000, appellant became eligible for parole, and on April 4, 2000, appellees filed for guardianship of appellant’s daughter. On June 6, 2000, appellant was released from the Arkansas prison, and according to appellees’ petition for adoption, Wanda Sellers was appointed guardian on August 29, 2000. Wanda Sellers testified that she and her husband were allowed to set appellant’s visitation with the child. She further testified that appellant could only visit her daughter once a month because of her parole requirements, and appellees allowed appellant to see her daughter once on Saturday and once on Sunday. Wanda Sellers did not allow appellant to be alone with the child for fear that appellant would take the child. Roy Sellers testified that even after obtaining the guardianship, he anticipated that the child would live with appellant upon termination of the guardianship.
Appellant remained out of prison until April 14, 2001, when she was arrested by Texas authorities. According to Wanda Sellers, it was her understanding that appellant had not done anything wrong when she was arrested, but she had been picked up because of a charge for which she had been serving time in Arkansas. According to appellant, she was arrested on a “premature release warrant.” Wanda Sellers took the child to see appellant when appellant was first arrested.
While Wanda Sellers had placed a block on her telephone to preclude appellant from calling from the prison, she was contacted by appellant’s friend about allowing appellant to see the child while appellant was in prison. However, because of her work schedule, she could not take the child to see appellant. Wanda Sellers also testified that the child had been receiving cards and letters from appellant after the petition for adoption, which was filed on January 15, 2002, and amended on January 24, 2002.
Wanda Sellers stated that appellant had contributed a maximum of $350 for the care of the child. She recognized, however, that appellant was unable to support the child while appellant was in prison, and she testified that when appellant was out of prison, she furnished clothes and shoes for the child and three $50 money orders.
In the decree of adoption, the circuit court found that the child had lived with a maternal aunt for approximately two months, a maternal grandmother for approximately one month, and with appellees for two years and nine months. The court noted that appellant, after she was paroled from the Arkansas prison, contributed less than $350 for the support of the child over a ten-month period. The court further observed that appellant had four and one-half years remaining on her prison sentence and would be able to apply for parole in 2004. The court concluded that the adoption was in the best interest of the child and that there had “not been substantial contact or contribution of support by the natural mother.” The court consequently terminated appellant’s parental rights and granted the adoption.
Arkansas Code Annotated § 9-9-207 (a) (2) (Repl. 2002) provides in pertinent part that
[cjonsent to adoption is not required of. . .[a] parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree [.]
“Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence.” In re Adoption of Lybrand, 329 Ark. 163, 169, 946 S.W.2d 946, 949 (1997). We review adoption proceedings de novo, and the trial court’s decision will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Vier v. Vier, 62 Ark. App. 89, 93, 968 S.W.2d 657, 659 (1998).
A failure to communicate without justifiable cause is one that is voluntary, willful, arbitrary, and without adequate excuse. In re Adoption of Lybrand, 329 Ark. at 169-70, 946 S.W.2d at 950. It is not required that a parent fail totally in these obligations in order to fail significantly within the meaning of the statutes. Id. at 170, 946 S.W.2d at 950. The one-year period after which a parent may lose the right to consent must accrue before the filing of the adoption petition, and the filing of the petition is the cutoff date. In re Adoption of K.F.H., 311 Ark. 416, 420, 844 S.W.2d 343, 345 (1993). The one-year requirement applies to any one-year period between the date of the child’s birth and the date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Id.
Here, the court concluded that there had “not been substantial contact or contribution of support by the natural mother.” We conclude that the court’s decision to grant the adoption was clearly erroneous, as there was no evidence that appellant’s alleged failure to significantly communicate with her child or to provide for the care and support of her child was for a one-year period.
Appellees began caring for the child three months after her birth. Appellant was incarcerated until June 6, 2000. She remained out on parole for approximately ten months until April 14, 2001, at which point she was again incarcerated. There is no testimony regarding appellant’s communication or lack thereof with her child during the first three months of the child’s fife. Appellant did state that she had called her aunt because she was worried about the child and learned that her aunt had left the child with appellees. She then wrote to appellees and agreed to give them a power of attorney. Wanda Sellers testified that after they began caring for the child, appellant spoke with them regarding the care of the child. Further, appellees presented no testimony regarding whether appellant failed to maintain contact with the child during her second incarceration. The only testimony regarding appellant’s communication with her child relates to the ten-month period during which she was not incarcerated, which is two months short of a one-year time period. Further, as for appellant’s duty to provide for the care and support of the child, Wanda Sellers acknowledged that appellant was unable to support the child while she was incarcerated. And the ten-month period during which she could contribute financially to the child was two months short of the one-year period.
As we previously noted, adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. While the circuit court found that there had “not been substantial contact or contribution of support by the natural mother,” the court did not specify the time period during which the contact or contribution failed to occur. From our review of the record, we cannot say that the evidence established that any period of non-contact or non-contribution lasted for the statutorily mandated one-year period. Given this lack of evidence, we conclude that the circuit court’s decision to grant the adoption was clearly erroneous.
Reversed.
Bird, Griffen, and Roaf, JJ., agree.
Stroud, C.J., and Crabtree, J., dissent.
We note that this testimony is contradicted by (1) appellant’s testimony that the child lived with her aunt for six or seven months; and by (2) appellees’ verified amended petition for adoption in which appellees stated that the child had resided with them since October 1999. | [
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Larry D. Vaught, Judge.
A jury, found appellant guilty of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and fleeing in a motor vehicle. He was sentenced to forty years in prison for possession of methamphetamine, ten years in prison and a $10,000 fine for possession of drug paraphernalia, and six years in prison and a $10,000 fine for fleeing. The prison terms and fines were to run concurrently. He raises five points of appeal. We find no merit in these points and affirm.
On June 3, 2001, Shirley Spencer made a 911 call to the Greene County Sheriffs Department indicating a suspicious vehicle and person outside her residence on County Road 632 in Greene County. Deputies subsequently stopped appellant John Garner in a vehicle matching the description given to them by Ms. Spencer. Appellant gave his consent to search his vehicle and his person, but the deputies found nothing illegal. The deputies then returned to Ms. Spencer’s residence to speak with her. They searched the roadway where the suspicious vehicle and person were earlier seen. The deputies found nothing in the area where the person had been seen, but upon searching an area about fifty feet north of the area identified by Ms. Spencer, deputies found a Bushnell, extra-wide binoculars case that contained approximately eighty grams of methamphetamine, various drug paraphernalia, and a letter from James Garner to Chris Garner, who are appellant’s brothers. No fingerprints were obtained from the case, but the deputies recalled seeing a pair of Bushnell, extra-wide binoculars during the earlier search of appellant’s car.
Green County deputies conducted a cursory search for appellant and, when he could not be located, returned to an area near Ms. Spencer’s residence. Approximately three and a half hours later, a motorcycle approached the location where the deputies were sitting at the intersection of County Road 632 and Sunset Avenue, which was approximately one-half mile from Ms. Spencer’s residence. After running a stop sign and upon seeing the deputies, the driver of the motorcycle began to flee. The deputies pursued the motorcycle ways until the it crashed, throwing passenger Max Burrow from the motorcycle. Burrow was apprehended, and the driver fled on foot. Deputy Matt Ring identified appellant as the driver, although Burrow stated that Charles Chamberlain was the driver. Two days later, appellant was arrested and charged with possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and fleeing in a vehicle.
Trial was scheduled for March 27, 2002. Deputy Ring appeared at trial with an incident report and a flashlight he retrieved from the scene of the motorcycle crash that had not been previously disclosed to either the prosecution or the defense. Due to this evidence, the trial was continued. Appellant subsequently filed a motion to bifurcate the charges, which the trial court denied. Appellant also filed a motion in limine, which was denied, to prohibit the State from introducing the flashlight presented by Deputy Ring.
A four-day jury trial began on June 26, 2002. At the close of the State’s case, appellant moved for a directed verdict on the issue of constructive possession, arguing that the State could not prove that the location of the contraband was such that it could be said to be under the dominion and control of appellant, or that it was found in a place immediately and exclusively accessible to appellant and subject to his control. A directed-verdict motion was also made on the fleeing charge on the basis that the testimony identifying appellant as the driver of the motorcycle was questionable. The trial court denied both appellant’s initial motions and renewed motions.
Appellant also asked the court to instruct the jury on modified versions of AMCI 6404 (Possession of a Controlled Substance) and 6407 (Possession of a Controlled Substance with Intent to Deliver). The court denied the request, and the proposed instructions were proffered. A jury found appellant guilty of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and fleeing in a motor vehicle.
Appellant raises five points of appeal: (1) the trial court erred in denying appellant’s motion for directed verdict on the issue of constructive possession; (2) the definition of constructive possession contained in the Arkansas Model Jury Instructions 2nd— Criminal is incomplete and therefore an erroneous statement of the law, and thus the trial court erred in failing to use appellant’s proffered instructions; (3) the failure of the trial court to bifurcate the charges for trial was erroneous; (4) the trial court erred in admitting the flashlight into evidence; (5) the sufficiency of the evidence does not support the conviction of appellant for fleeing in a motor vehicle.
For double jeopardy reasons, we first consider appellant’s arguments that there was insufficient evidence to support his convictions. See Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). We disregard any alleged trial errors in determining the sufficiency question because to do otherwise could result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000).
1. Possession of Methamphetamine with Intent to Deliver and Possession of Drug Paraphernalia
Appellant argues that the trial court erred in denying his motion for directed verdict for possession of methamphetamine with intent to deliver and possession of drug paraphernalia because the proof of constructive possession was insufficient to support the convictions. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Mills v. State, 351 Ark. 523, 95 S.W.3d (2003). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.
In support of reversal, appellant cites Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990), in which the supreme court reversed a conviction for possession of methamphetamine with intent to deliver, holding that the circumstantial evidence of possession was insufficient to support the conviction. There, the court stated that proof of actual or physical possession is not required. Id. A person can be in constructive possession of contraband when he either maintains control or a right to control. Id. The facts of Hodge are distinguishable from the present case.
In Hodge, the police were attempting to establish a drug case against Hodge. An informant wearing a police wire went to Hodge’s house to buy methamphetamine. Hodge did not have any, but said he would get some from Bo and Belinda the following day. Police followed Hodge the next day when he stopped at a truck stop and met Bo and Belinda, who police recognized as persons previously arrested for running a drug lab. Bo got in the car with Hodge, and police subsequently turned on their lights, and a high-speed, sixteen-block chase through town ensued. After Hodge was arrested, a police officer retraced the route of the chase and found a Pringles can and two Ziplock bags containing methamphetamine, which were scattered twenty-five feet beyond an intersection where Hodge turned.
In its opinion, the supreme court discussed the requisite proof to establish constructive possession:
We have established the requisite proof for constructive possession in a long line of cases concerning joint occupancy. Where contraband is discovered in jointly occupied premises, and there is no direct evidence that it belongs to a particular occupant, some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). The same analysis applies here. Certainly, where narcotics are found in an area entirely outside the control of the defendant and exposed to the public at large, the state must provide more definite factors linking the defendant to the contraband than were provided here.
303 Ark. at 377-78, 797 S.W.2d at 434 (emphasis added).
The State’s evidence linking Hodge was the taped conversation of the intended drug buy, the meeting of known drug dealers, and Hodge’s fleeing. The evidence revealed no proof of exchange of contraband, no drugs or large amounts of money were found on Hodge, no one saw Hodge drop anything from the car, and the amount of drugs far exceeded the amount of the intended buy. Further, the area of the chase was heavily traveled, and none of the fingerprints lifted matched Hodge’s prints.
Unlike the facts in Hodge, we conclude that there are more definite factors linking appellant to the contraband sufficient to sustain the jury’s verdict. Around midnight on June 4, 2001, Paragould Police Officer Nate Hergett followed a blue Chevy truck traveling north on County Road 632. He stated that he encountered the truck twice on County Road 632 about fifteen minutes apart, and both times the truck was traveling north as if it and the officer were traveling in circles. Officer Hergett testified that when he first encountered the truck it was being driven at a normal speed, but that the second time he thought it was being driven suspiciously. Shirley Spencer also observed a truck traveling up and down the road slowly, and she reported the suspicious vehicle to the Greene County Sheriffs office after it stopped on her property, a man exited the truck and walked towards her driveway and out in the bushes, shrubs, and weeds grown up on the side of the road. Ms. Spencer testified that she could not tell if the man was picking something up or putting something down. Officer Hergett then received the suspicious vehicle report, which met the description of appellant’s truck and the truck that Officer Herget had recently encountered twice on County Road 632. The testimony further revealed that Ms. Spencer watched the truck leave her property and saw the sheriff deputies pull up behind it. When police stopped the truck and identified appellant as the driver, they noticed a pair of extra-wide Bushnell binoculars in his car, as well as a weedeater. Appellant was dirty and explained his presence in the area by saying that he was weed-eating a nearby property belonging to him. See Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002) (stating that the jury could consider an improbable explanation as evidence of his consciousness of guilty).
When police returned to Ms. Spencer’s house, contraband was found near the road approximately fifty feet north of the area she identified, in a Bushnell, extra-wide binoculars case. There was also a letter in the case from one of appellant’s brothers to the other brother, which referenced appellant. See Pacee v. State, 306 Ark. 563, 816 S.W.2d 563 (1991) (in affirming a joint-occupancy case, the court recognized as a factor that the evidence revealed that the briefcase where the contraband was found contained records identifying appellant). Deputy Ring identified appellant as the driver of the motorcycle, which was returning to the area of Ms. Spencer’s residence after he had been seen outside her house earlier that evening and after he had been stopped by deputies. The motorcycle belonged to appellant’s brother, and the driver fled when he spotted the deputies. See Alexander v. State, supra (noting that flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt). A flashlight that bore the initials J.G. was found at the scene of the motorcycle crash.
As stated previously, the supreme court in Hodge stated that “where narcotics are found in an area entirely outside the control of the defendant and are exposed to the public at large, the state must provide more definite factors linking the defendant to the contraband than were provided here.” 303 Ark. at 377-78, 797 S.W.2d at 434. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion; this determination is a question of fact for the jury to decide. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). The credibility of witnesses is an issue for the jury, and it is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. On appeal, we will only disturb the jury’s determination if the evidence did not meet the required standards, thereby leaving the jury to resort to speculation and conjecture in reaching its verdict. Id. Based on the circumstantial evidence set out above, we conclude that there were enough factors linking appellant to the contraband for the jury to conclude, without resort to speculation and conjecture, that appellant constructively possessed the contraband.
2. Fleeing
Arkansas Code Annotated section 5-54-125 (Repl. 1997) defines the offense of fleeing as follows:
If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.
For his motion for directed verdict, appellant argued that the testimony identifying appellant as the driver of the motorcycle was “questionable at best.” His counsel specifically stated that:
Matt Ping says he can make identification out of John Garner, even though Garner’s face was behind the headlights and he broke to the right when he saw police cars. Deputy Bing has testified that he turned his headlights on and [identifies] Garner in that split second on the road. We’d [sic] move for directed verdict to say that [the] State hadn’t chinned their pole that he was fleeing from them at the time.
Appellant only challenges the credibility of Deputy Ring’s testimony. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002). We conclude that there is substantial evidence to support the conviction.
3. Jury Instructions
Appellant next argues that the definition of constructive possession contained in the Arkansas Model Jury Instructions 2nd— Criminal is incomplete and therefore an erroneous statement of the law, and thus the trial court erred in failing to use the instructions proffered by appellant. At trial, appellant objected to the State’s use of AMCI 6404 and 6407. Both of these instructions include the following definition of constructive possession:
There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual physical possession of a thing, has the right to control it and intends to do so, either directly or through another person.
Counsel argued that the definition of constructive possession misstated the law because it does not take into consideration all factors necessary for constructive possession. Specifically, appellant argued that the instructions should include language taken from case law that “constructive possession may be implied when the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control.”
The following definition of constructive possession is contained in appellant's proffered instructions:
There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the accused, and subject to his control.
This definition is incomplete because it fails to include the definition of constructive possession contained in the AMCI, which is “Constructive possession exists when a person, although not in actual physical possession of a thing, has the right to control it and intends to do so, either directly or through another person.”
Appellant is attempting to substitute an example of constructive possession for the definition of constructive possession. The appellate courts have held that one way that constructive possession (control or right to control) may be implied is when the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. While this example is applicable in enclosed areas, such as houses or vehicles, it would have no applicability to contraband found in open spaces that are accessible to the public as described in Hodge v. State, supra.
In addition, the supreme court has consistently recognized that a trial court is required to give a model instruction unless it finds that the instruction does not accurately state the law. McCoy v. State, 348 Ark. 239, 74 S.W.3d 599 (2002) (citing In Re: Arkansas Model Criminal Instructions, 264 Ark. Appx. 967 (1979) (per curiam)). These holdings have created a presumption that the model instruction is a correct statement of the law. It has been said that a non-model jury instruction should not be given unless the model instruction does not accurately reflect the law. McCoy v. State, supra. Any party who wishes to challenge the accuracy of a model instruction, be it the State or a defendant, must rebut the presumption of correctness. Id. In Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), the supreme court addressed two challenges, although different from the argument in the present case, to the wording of the AMCI instruction defining constructive possession. In affirming the trial court’s use of the AMCI, the court generally stated “we hold the AMCI wording describing constructive possession to be sufficient.”
Because the supreme court has found the AMCI wording of constructive possession to be sufficient and the appellant proffered incomplete instructions, we cannot say that the trial court erred in refusing to give the proffered instructions.
4. Denial of Motion to Bifurcate
Appellant next argues that the trial court erred in failing to bifurcate the possession charges from the fleeing charge. The supreme court has explained that the decision to sever offenses is discretionary with the trial court. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002); see also Ark. R. Crim. P. Rule 21.1. A trial court’s denial of a motion to sever will be affirmed if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Id. Two or more criminal offenses are based on a series of acts connected together when the offenses occurred close together in time and place. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).
Appellant specifically contends that the fleeing offense had nothing to do with the determination of whether he possessed contraband. We disagree and cannot say that the trial court abused its discretion in denying the motion to sever.
Deputy Ring identified appellant as the driver of the motorcycle, which was returning to the area of Ms. Spencer’s residence approximately three and a half hours after appellant had been seen in her yard and after deputies had found the binoculars case containing the contraband near Ms. Spencer’s home. Deputies had seen a pair of binoculars that would fit the case found when they stopped appellant earlier after Ms. Spencer reported the suspicious activity. The testimony revealed that appellant began to flee when he spotted the deputies. The three-hour lapse in time between the fleeing and appellant’s presence on Ms. Spencer’s property and the finding of the contraband does not alone negate a single scheme or plan. Rather, the proximity in time and place of the crimes provides a basis for the denial of severance. See Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990). Additionally, some of the State’s proof was pertinent to both crimes. The State was using the evidence of appellant’s return to the property by motorcycle and subsequent fleeing as circumstantial evidence of appellant’s possession of contraband.
5, Admission of the Flashlight
For his final argument, appellant contends that the trial court erred in admitting the flashlight that was recovered from the motorcycle crash site and bore his initials, which are the same as one of his brothers. Deputy Ring first presented the flashlight and an incident report on the date that the trial was originally set; the trial court continued the case because neither appellant nor the State were aware of the evidence. Appellant then filed a motion in limine prior to trial to prohibit the introduction of the flashlight on the basis that it lacked authenticity and that the State could not establish a proper chain of custody, which was denied by the trial court.
In Guydon v. State, 344 Ark. 251, 255, 39 S.W.3d 767, 769-70 (2001), the supreme court addressed the purpose of establishing chain of custody:
We have consistently stated that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). To prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Id. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Id. On review, we will not reverse a ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. See Newman, supra.
It is appellant’s assertion that the flashlight was not found at the scene of the motorcycle crash. Instead, he suggests that Deputy Ring obtained the flashlight from a prior arrest of appellant or his brother. His argument is based on the following: (1) the flashlight was not disclosed to either side until the day the case was originally set for trial; (2) Deputy Ring failed to turn the flashlight over to Investigator Martin and instead placed it in his own evidence locker; (3) none of the other officers’ reports mention a flashlight; and (4) all of the other officers’ reports are typed except Deputy Ring’s.
At trial, Deputy Ring testified that he found the flashlight at the scene of the motorcycle crash, seized it at the crash site, and kept it in his personal evidence locker until trial. He added that it was in substantially the same condition as it was when he found it. In explaining his failure to disclose the flashlight earlier, he testified that he had only been on the job four months and that he thought the fleeing incident was a separate incident, and based on this, he filled out a separate report which he did not give to Investigator Martin, who was the drug investigator.
Appellant’s argument that the flashlight is not authentic goes to the credibility of Deputy Ring’s testimony and the weight to be accorded to it. However, the appellate court does not weigh the evidence presented at trial or weigh the credibility of witnesses, as these are matters to be resolved by the finder of fact. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). Therefore, we cannot say that the trial court erred in admitting the flashlight into evidence.
Affirmed.
Stroud, C.J., Pittman, Crabtree, and Roaf, JJ., agree.
Hart, Bird, Griffen, and Baker, JJ., dissent. | [
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Robert J. Gladwin, Judge.
Systems Contracting Corporation appeals a decision of the Workers’ Compensation Commission holding that appellee had rebutted the presumption contained in Ark. Code Ann. § 11-9-102(5) (B)(iv)(b) (Repl. 1996) (currently at 11-9-102(4)(B)(iv)(b) (Supp. 2003)) and proved by a preponderance of the evidence that the accident in which he was injured was not “substantially occasioned” by the use of illegal drugs. Appellant contends that the decision of the Commission is not supported by substantial evidence in that appellee did not overcome the presumption that arose when appellee’s urine test showed positive for marijuana. We affirm.
On and before August 14, 2001, appellee was employed as a welder for appellant Systems Contracting Corporation. At the time of appellee’s injury, appellant had a contract with Marine Terminals of Arkansas to weld and repair barges. The employees would meet at appellant’s shop in the mornings, and appellant would then transfer the employees to the job site, which was on the river, in pickup trucks owned by Marine Terminals.
On the date of the injury, two trucks were used to transport six workers to the job site, three in each truck. One employee, Jason Stone, rode in the bed of the lead truck, a Dodge. Two employees, Jason Berry and appellee, rode in the bed of the other truck, a Chevrolet. The ALJ found that it was clear from the record that at the time of the incident appellant did not prohibit its workers from riding in the beds of the trucks, but that it did change this policy after appellee’s accident. The trucks also carried equipment and supplies such as acetylene tanks, oxygen tanks, cutting torches, hoses, and various tools. The equipment was not secured, but was transported loosely. The five-minute trip to the job site involved going up and then down a steep levee towards the barge in the river.
Jason Berry testified that, as they were traveling to the job site, the brakes went out on the Chevrolet. He said he and appellee could tell that the truck they were riding in was going too fast. He stated that he heard the driver grinding the gears and that the truck began going faster and faster. He said that their options were to either sit in the truck while it rear-ended the other truck or ran off the barge into the river, or that they could jump off the side of the truck and take their chances. He testified that considering what was ahead' — a collision or driving off into the river — and the dangerous nature of the equipment in the bed of the truck, he made the decision that jumping off the truck was the best choice for him at that time. Appellee also jumped from the truck, as did the passenger in the bed of the Dodge. The Chevrolet truck then collided with the Dodge truck. All three workers who jumped from the truck beds sustained injuries. Appellee suffered a shattered left wrist and a broken left hip.
Following the accident, appellant required drug testing from those involved in the accident. Appellee tested positive for marijuana metabolites. Appellee admitted he had smoked marijuana the night before the accident. As a result of the positive drug test, appellant controverted the claim in its entirety.
The ALJ awarded benefits to appellee, finding that a preponderance of the evidence reflected that appellee’s use of marijuana did not substantially cause the accident or injury on August 14, 2002, and that appellee effectively rebutted the presumption created under Ark. Code Ann. § 11-9-102. The ALJ relied on the following evidence in reaching his conclusion: appellee was observed by several of his co-workers before the accident occurred that morning, and none observed anything peculiar in his appearance or actions; appellee’s action in jumping out of the truck was consistent with the action taken by two other employees; all of the employer’s workers agreed that jumping off a moving truck containing dangerous pieces of equipment that could become projectiles upon impact was a rational decision; the employer knew or should have known the truck had faulty brakes; and it appeared that the driver may have been driving too fast for conditions. The ALJ also noted that the accident was caused by the negligence of the employer in failing to maintain its equipment, as well as in permitting dangerous equipment to be transported without being secured. The Commission noted that the pickup truck in which appellee was riding was actually owned by Marine Terminals; however, the employer did use the pickup truck to transport its employees. With that correction, the Commission affirmed and adopted the opinion of the ALJ.
Under our workers’ compensation laws, a “compensable injury” does not include an injury where the accident was substantially occasioned by the use of illegal drugs. Ark. Code Ann. § ll-9-102(5)(B)(iv)(a). The statute further provides that the “presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.” Ark. Code Ann. § 11-9-102(5) (B)(iv)(b). Once this rebuttable presumption arises, an injured employee is not entitled to compensation “unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.” Ark. Code Ann. § 11-9-102(5)(B)(iv)(d).
In reviewing an appeal from the Commission, we view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000). Such evidence exists if reasonable minds could reach the same conclusion. Id. Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine, and we must affirm the Commission unless we are persuaded that fair-minded persons, with the same facts before them, could not have reached the conclusion reached by the Commission. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998).
Given the testimony by appellee’s coworkers that appellee was not acting as if he were impaired, that the brakes were bad on the truck, and that all of the employees involved in the situation agreed that appellee’s action in jumping out of the truck was not only reasonable but wise, there was substantial evidence to support the Commission’s decision that appellee had rebutted by a preponderance of the evidence the presumption that the accident was substantially occasioned by the use of an illegal drug.
Appellant contends that appellee’s proof was not sufficient to overcome the presumption that his injury was substantially occasioned by the use of illegal drugs, citing the fact that appellee offered only his own testimony regarding the time at which he had smoked the marijuana the night before the accident. While it is true that the uncorroborated testimony of an interested party is never considered uncontradicted, this does not mean that the fact-finder may not find such testimony to be credible and believable or that it must reject such testimony if it finds the testimony worthy of belief. Continental Express v. Harris, supra. It is well established that the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Id.
Appellant also argues that because appellee had failed to come forward with a material witness, his girlfriend, who could have substantiated his testimony that it was at six o’clock the evening before the accident when he had smoked the marijuana, the law presumes that this witness would have actually testified contrary to appellee’s position. In Arkansas Hwy. Comm’n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), the supreme court stated that the unexplained failure of a party to produce a witness with special knowledge of a transaction raises a presumption (or inference) that the testimony would be unfavorable. In this case, appellee’s girlfriend could only have testified about what time he smoked marijuana the night before the accident. She could not have possessed any special knowledge relevant to the issue herein, which was whether the accident was substantially occasioned by appehee’s use of an illegal drug. Appellee’s failure to call this witness was therefore irrelevant under the facts of this case.
In arguing that appellee did not overcome the rebuttable presumption in Ark. Code Ann. § 11-9-102(5)(B)(iv)(b), appellant also relies on Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000), in which our supreme court affirmed the Commission’s denial of benefits on facts very similar to those we-have before us. In Woodall, the claimant fell when a scaffold collapsed, sustaining fractures to both of his heels. When he went to the emergency room for treatment, he was given a drug test, the result of which was positive for the presence of cocaine metabolites. The claimant admitted to having smoked a rock of crack cocaine the night before the accident. James Summerhill, a coworker who was supervised by the claimant, testified that the claimant had instructed him to put together scaffolding. He said that he had nailed down one side of the scaffolding, but not the other, when the claimant told him that it would be all right, and that they then proceeded to utilize the scaffolding to put the roof together. When the board that the two workers were standing on fell off the scaffolding, the claimant fell to the ground and was injured.
Upon de novo review of the testimony in Woodall, the Commission found that the claimant had failed to prove by a preponderance of the credible evidence that his accident and injury were not substantially occasioned by the use of cocaine, stating that the greater weight of the credible evidence established that appellant’s accident was attributable to his impaired judgment. The supreme court noted that whether the rebuttable presumption set out in Ark. Code Ann. § 11-9-102(5) (B) (iv) (b) was overcome by the evidence was a question of fact for the Commission to determine and that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. The court concluded that because our standard of review is whether reasonable men could have reached the same conclusion as the Commission, the case must be affirmed.
What appellant fails to take into account is that it was not the particular fact situation that was determinative in Woodall, but rather our standard of review. The court in Woodall noted that the only question it need address was whether the accident could have happened the way the Commission found, i.e., whether the accident could have happened because of the use of illegal drugs. Here, we need only ask whether the Commission could have found that appellant proved by a preponderance of the evidence that the use ofillegal drugs did not substantially occasion the injury or accident. As noted earlier, whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission. Woodall, supra. On appeal, the issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding; if reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Wood v. West Tree Service, 70 Ark. App. 29, 14 S.W.3d 883 (2000).
We think reasonable minds could interpret the evidence as did the Commission, and we therefore affirm the Commission’s finding that appellee had rebutted the presumption that the accident was substantially occasioned by the use of illegal drugs.
Affirmed.
Pittman and Baker, JJ., agree. | [
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Lawson Cloninger, Judge.
Appellant, Western Auto Supply Company, and appellee, Bank of Imboden, both had security interests in the proceeds, fixtures, and inventory of an associate Western Auto store in Walnut Ridge owned by Ken Welsh. After Mr. Welsh held a “going out of business sale” he turned the proceeds from the sale over to appellee. Appellant filed suit, claiming that its security interest was filed before appellee’s and that appellant had priority. At trial the only issue was whether appellant had agreed to subordinate its position to appellee. The trial court found in favor of the bank. For its appeal appellant argues that the trial court erred since its security interest was perfected and filed more than four years before appellee’s was perfected and filed, that any defense based on contract, agreement or estoppel is unavailable to appellee since it did not affirmatively plead those defenses, and that as a matter of law, appellant would not be subordinated until the indebtedness of Ken Welsh to it was fully paid. We disagree and affirm the finding of the trial court. We note at this point that appellant cites no authority for its position, and its arguments are not persuasive. See Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984).
When Ken Walsh opened his Western Auto store, appellant financed the operation and had a security interest covering the equipment, fixtures and inventory then owned or thereafter acquired, and the proceeds therefrom. In the fall of 1970, Mr. Welsh was in financial trouble and approached appellee bank about a loan. Appellee agreed to arrange a loan through the Small Business Administration (SBA). Appellee told Mr. Welsh that the only way the SBA would approve the loan would be for appellant to subordinate its position in the security interests it held. A meeting was held at the bank which was attended by Jack Lewis, a division credit manager for appellant at the time, Mr. Welsh and Steve Jones, President of appellee bank.
Shortly after the meeting, appellee loaned Mr. Welsh $40,000.00. The testimony regarding the result of that meeting is in conflict. Mr. Welsh and Mr. Jones both testified that Mr. Lewis agreed to the subordination upon payment of the current debts due appellant. Mr. Lewis testified that although the subordination was discussed, a decision was not reached.
Appellee argues that an oral agreement to subordinate was reached. The evidence supports this. The evidence indicates that $34,000 of the proceeds of the loan was paid to appellant for Mr. Welsh’s currently due inventory and installment debts. It was to appellant’s advantage that this loan be made, so that Mr. Welsh could continue in business. The evidence supports the conclusion that both appellant and appellee knew that the SBA would not approve the loan unless appellant subordinated its position. A letter was sent from appellant to Mr. Welsh that indicated that as soon as the attached agreement had been signed, appellant would “amend their filing to give Bank first position.”
An agreement between parties does not need to be reduced to writing in order to be enforceable, as long as the contract does not fall into one of the classes of contracts in the statute of frauds, Ark. Stat. Ann. § 38-101 et seq. (Repl. 1962). Hunter v. Ward, 476 F.Supp. 913 (E.D. Ark., 1979). Where the testimony is in conflict on the issue of whether the parties agreed, a fact question arises that is to be determined by the trial judge. The appellate court cannot reverse on this factual issue as long as there is evidence to support the trial court’s finding and the finding is not clearly against the preponderance of the evidence. Hunt v. McIlroy Bk. & Tr., 2 Ark. App. 87, 616 S.W.2d 759 (1981).
For its second argument, appellant states that any defense based upon contract, agreement, or estoppel is not available to appellee as these were not pleaded as affirmative defenses. However, appellant did not object to appellee using this defense at trial. At the opening of the trial, the judge asked the parties if it was agreed that the only issue was whether the appellant had agreed to subordinate its position. Appellant replied that that was its understanding. The whole trial concerned this single issue. Appellant cannot now raise this issue on appeal, since he did not make a timely objection. See ARCP, Rule 15(b).
Appellant finally argues that as a matter of law, its position would not be subordinated until Mr. Welsh’s debt had been paid in full. As noted earlier, appellant does not cite any statutory or case law. Appellant does restate a writing that was introduced into evidence at trial that is not signed by appellant. Appellant had previously questioned the effectiveness of this writing since the bank’s seal was not on it. Assignments of error by counsel in briefs unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that the assignments of error are well taken. Davis v. State, supra.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Per Curiam.
The appellant has appealed from her conviction of possession of a controlled substance with intent to deliver for which she was sentenced to a term of four years in the Department of Correction. Appellant’s brief does not comply with Rule 9(d) of the Rules of the Supreme Court and the Court of Appeals.
Rule 9(d) requires that the appellant furnish us an abstract of the record containing a condensation of those material parts of the record which are necessary to an understanding by the court of all questions presented for decision. The main thrust of appellant’s argument is that the trial court erred in not suppressing evidence obtained pursuant to a search warrant, contending that the warrant was issued on an insufficient showing of probable cause for a nighttime search. The abstract furnished us does not contain the search warrant, the affidavit, or other documentation on which it was issued. The appellee did not submit a supplemental abstract as permitted by Rule 9(e)(1) but bases his argument on facts not found in the abstract.
On appeal the abstract of the record constitutes the record and the appellate court considers only that which is contained in the abstract. We have often stated that where the appellant’s abstract does not contain the testimony on which he bases his argument we will not explore the record for prejudicial error. The scattering of transcript references throughout an argument is not a substitute for a proper abstract. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Home v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). The court has also pointed out the difficulty of all judges of this court exploring a single record.
The appellant’s brief is flagrantly deficient and causes an unreasonable and unjust delay in the disposition of this case. However, in view of the sentence imposed, this court finds that it would be unjustly harsh to affirm this case for this noncompliance as authorized by the rule.
Pursuant to Rule 9(e)(2), appellant’s attorney will be allowed fifteen days to supplement the abstract to conform to Rule 9(d) at his own expense. The appellee will be allowed fifteen days thereafter to revise or supplement its brief if the supplemented abstract requires it. | [
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Donald L. Corbin, Judge.
Appellants, Universal Underwriters insurance Company and Foster Olds-Toyota, Inc., appeal a decision of the Arkansas Workers’ Compensation Commission wherein appellee, David Bussey, was awarded permanent partial disability of 15% to his whole body; penalties for controversion and payment of all medical and doctor bills that accrued without the benefit of the Commission’s prior approval of a change of physicians by appellee. We affirm.
Appellee testified that he underwent a cervical fusion by his previously selected physician, Dr. J.C. Callaway, on February 10, 1984. He remained very symptomatic and in a great deal of pain. Dr. Callaway advised him that he had done all he could for him and that appellee would have to learn to live with his pain. Dr. Callaway refused to refer him to Dr. Wilbur M. Giles, a neurosurgeon. Appellee stated he was in excruciating pain and in an effort to alleviate the same sought the services of Dr. Giles on May 21, 1984.
Dr. Giles immediately diagnosed appellee’s problem to be a moving graft, i.e., the fusion by Dr. Callaway had failed, causing a false joint. Dr. Giles stated at the initial visit that appellee was extremely anxious, tearful, complaining of severe pain, with marked limitation. Dr. Giles concluded that appellee was a “basket case.” Dr. Giles admitted appellee to a hospital on the day he first saw him and performed surgery three days later. Following the surgery appellee experienced a marked reduction in his symptomatology arid was able to return to work on July 8, 1984.
The Administrative Law Judge stated in his opinion, which was adopted by the Full Commission, that he did not rely on the failure of the employer to furnish appellee a copy of Commission form A-29, which sets out the requirements for a change of physician, in finding the services of Dr. Giles, other hospitals and physicians compensable. He relied instead upon a portion of Ark. Stat. Ann. § 81-1311 (Supp. 1985), which provides that any emergency treatment afforded an injured employee shall be at the expense of the employer.
Appellants first contend that the Commission erred in ordering appellants to pay all medical expenses associated with the surgery performed by Dr. Giles for the reason that the order was an error of law and unsupported by the facts. Ark. Stat. Ann. § 81-1311 provides in part:
If the employee selects a physician, the Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change. . . . Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.
We fail to find error here. Appellants ask this Court to adopt a strict construction of the term “emergency treatment” and hold that an emergency situation only exists where life is threatened. That construction is contrary to the intent and spirit of the Arkansas Workers’ Compensation Act and we decline to adopt it.
As observed by this Court, the Workers’Compensation Act is entitled to receive liberal construction from the courts, and the humanitarian objects of such laws should not, in the administration of them, be defeated by over-emphasis on technicalities. Form should not be put above substance. Brim v. Mid-Ark Truck Stop, 6 Ark. App. 119, 639 S.W.2d 75 (1982).
The record in the case at bar reflects that appellee had been advised by Dr. Callaway that he had done all he could for appellee. Appellee was in such excruciating pain he could not function and was taking massive amounts of drugs. Dr. Callaway refused to refer appellee to another physician. At this time appellee was not represented by counsel. In desperation, appellee sought the services of Dr. Giles.
Immediately upon seeing Dr. Giles, appellee was diagnosed as having an obvious pseudoarthrosis, or false joint, and Dr. Giles admitted appellee to the hospital. Dr. Giles performed surgery to correct the false joint three days later.
Dr. Giles testified that, “Emotionally this young man was at his wits end. He was crying and stated that he had been in need of help and had felt that that had not been provided.”
Dr. Giles also testified:
At the time that I saw him he was extremely anxious, tearful, complaining of severe pain, marked limitation, well, he had marked limitation of range of motion of his neck and in all areas, both flexion, extension, and on lateral rotation.
He had marked cervical trapesius spasm and he had weakness in his left biceps and muscle on the left side.
We agree with the Commission that the facts here warranted the conclusion that an emergency situation existed as contemplated by §81-1311. This conclusion is supported in part by the fact that appellee was immediately hospitalized by Dr. Giles for an obvious pseudoarthrosis and surgery was performed three days later. Appellee thereafter experienced a marked reduction in his symptomatology and was able to return to work. We cannot say that the Commission’s finding that appellants were responsible for all medical bills of Dr. Giles and those hospitals and doctors to whom Dr. Giles referred appellee was in error.
Appellants next contend that the finding by the Commission that appellants controverted appellee’s permanent partial disability and temporary total disability is an error of law and unsupported by the facts of the case. Their argument is based primarily on their initial disagreement as to the permissibility of appellee’s claim for medical treatment rendered by Dr. Giles. Appellants argue that they never controverted the fact that appellee had a disability and claim they had no knowledge as to the extent of appellee’s disability. Furthermore, they rely upon the fact that Dr. Callaway never made an assessment of appellee’s disability. The record reflects that by a letter to appellants dated August 27, 1984, Dr. Giles opined that appellee had sustained a 5% permanent partial disability to the body as a whole as a result of his injury. On September 26, 1984, counsel for appellants advised appellee that appellants did not controvert appellee’s permanent partial disability of 5%. Counsel offered to tender that sum to appellee in full and complete settlement of his claims. As noted by the ALJ in his opinion, appellants took the inconsistent position of admitting appellee had a 5% permanent partial disability but had not paid him any permanent disability benefits. Controversion is a question of fact for the Commission, Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984), and we find substantial evidence to support the Commission’s finding that appellants controverted appellee’s claim.
For their third contention for reversal, appellants argue that the 10% penalty on the disability benefits awarded appellee is contrary to the law and unsupported by the facts of the case. Appellants contend that the penalty provisions of Ark. Stat. Ann. § 81-1319(e) (Supp. 1985), do not apply to medical bills and legal expenses. However, in the ALJ’s opinion it was stated that “All disability benefits, temporary and total, shall be increased by 10% pursuant to § 19(e).” The 10% penalty was neither sought by appellee nor awarded by the Commission on appellee’s medical bills and legal expenses.
Appellants also argue that the Administrative Law Judge did not recognize any payments made by appellant Foster Olds-Toyota, Inc., in the form of full salary as a credit against amounts due and payable to appellee. The record is clear that the Commission’s award did not include or embrace any periods of time during which appellee received his salary from appellant Foster Olds-Toyota, Inc. It has been specifically held that the excess of wages paid over the weekly compensation award cannot be deducted from the award. The employer cannot make such payments and later claim credit for the excess against an award made. Looney v. Sears Roebuck, 236 Ark. 868, 371 S.W.2d 6 (1963). We find no merit to this contention.
Finally, appellants argue that the award of attorneys’ fees is contrary to the law and unsupported by the evidence. Appellants contend that “compensation” as used in Ark. Stat. Ann. § 81-1332 (Supp. 1985), which provides for payment of legal fees on that portion of a compensation award which is controverted, does not include medical expenses.
An identical argument has been made before the Arkansas Supreme Court and was expressly rejected. Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954). Ragon, supra, held that attorneys’ fees in a workers’ compensation case should consist of a percentage of the amounts expended for medical services and hospitalization in addition to a percentage of the cash awarded to the claimant, since the compensation from which the fees are to be derived include medical and hospital services. We find no error here.
Affirmed.
Glaze and Mayfield, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an appeal of a decision by the Workers’ Compensation Commission. The full Commission affirmed an order by the Administrative Law Judge which denied appellants’ petition for a credit against benefits due appellee, the claimant, for sums recovered by appellee in settlement of a third-party action. Appellants claim that, under Ark. Stat. Ann. § 81-1340 (Supp. 1985), they were entitled to notice and an opportunity to intervene in the third-party action and that appellee failed to give appellants proper notice. Therefore, appellants assert, they have a right to a credit against the settlement entered into by appellee and the third-party. Appellants also claim that at the time of the settlement of the third-party tort action, they had not been held liable in the workers’ compensation action; therefore, they assert, Ark. Stat. Ann. § 81-1340 did not require that they intervene in order to protect their rights to a credit.
The Arkansas Workers’ Compensation Law provides for third-party liability in Ark. Stat. Ann. § 81-1340. This section provides that the making of a claim for workers’ compensation shall not affect the right of the employee to make a claim or maintain an action in court against the third party, but is subject to the carrier’s right to notice and intervention, and a lien upon two-thirds of the net recovery for payment of the compensation period paid and to be paid. Subsection (a)(2) provides that the commencement of an action against the third party, or the adjustment of any such claim, shall not affect the right of the employee to recover compensation, but the recovery shall be applied, after cost of collection, one-third in every case to the employee. The remainder, as necessary, is applied to discharge the actual amount of liability of the carrier, and the excess shall belong to the employee. Subsection (c) provides that settlement of such claims under subsections (a) and (b) must have the approval of the court or the Commission, except that the distribution of that portion of the settlement which represents the compensation payable under the Act must have the approval of the Commission. Bituminous Insurance Co. v. Georgia-Pacific Corp., 2 Ark. App. 245, 620 S.W.2d 304 (1981).
The full Commission found that appellants had actual knowledge of the on-going third-party suit and, by their failure to intervene in said suit, appellants are precluded from recovering any part of the settlement to appellee-claimant from the third-party tort claim. The Commission stated as follows:
This is a difficult case and we reluctantly affirm the Law Judge because we feel the respondents [appellants here] failed to assert their rights under Ark. Stat. Ann. § 81 -1340 in a timely fashion. The respondents never undertook any action to intervene in the Georgia tort claim [the third-party action in this case]. It is clear from the Stipulation and Agreement that the Georgia action was settled in April, 1983, but the respondents did not learn of this settlement until November 11,1983, even though the respondents had been in communication with the Georgia defense attorneys in the tort claim.
Not until June 11,1984, did the respondents request the Administrative Law Judge for a credit pursuant to Section 40 [§ 81 -1340]. We must agree with the Administrative Law Judge ‘that the respondents in this case were effectively on notice that a third-party settlement was proceeding and given ample opportunity to intervene.’
We also are not swayed by the respondents’ argument that at the time the suit in Georgia was filed and the respondents subsequently learned of it, they had no standing to intervene as no final adjudication had been made as to their liability for the claimant’s death. As soon as the respondents became aware of a third-party action, in order to protect their interests under Section 40, intervention in the Georgia action should have been attempted.
While we cannot say that affirmance of the Law Judge is the outcome we wish to obtain, we feel that in the face of all the evidence and especially in view of the length of time the respondents had in which to intervene in the Georgia action, this Commission, under these specific circumstances, is compelled to affirm the Law Judge.
It is within the province of the Commission to reconcile conflicting evidence and determine the true facts. The Court of Appeals reviews the evidence in the light most favorable to the findings of the Workers’ Compensation Commission and the Commission is the trier of fact and the sole judge of the credibility of the witnesses. Cotton Plant Plywood Corp. v. Speed, 8 Ark. App. 326, 651 S.W.2d 470 (1983).
The Arkansas Supreme Court has interpreted Ark. Stat. Ann. § 81-1340 in Travelers Insurance Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972). Appellee McCluskey drew workers’ compensation benefits from his employer’s insurance carrier, Travelers Insurance Company, for injuries sustained when a wrench he was using broke. McCluskey settled a third-party tort action arising out of the compensable injury. He subsequently filed for additional workers’ compensation benefits. The compensation carrier, Travelers, sought a credit for the proceeds McCluskey received in the third-party settlement. The Workers’ Compensation Commission ruled in favor of McCluskey, holding that Travelers had notice of the third-party action but did not intervene, and therefore had no lien against the proceeds of the third-party settlement. The Arkansas Supreme Court affirmed the decision of the Commission, stating as follows:
Since the statutory purpose of § 81-1340 is to protect the rights of both the compensation carrier and the employee, we . . . require that as between the employer (or carrier) and employee, the proceeds of any compromise settlement of a tort claim be subject to the lien of the employer or the compensation carrier unless the settlement has been approved by a court having jurisdiction or by the Workmen’s Compensation Commission, after the compensation carrier has been afforded adequate opportunity to be heard.
McCluskey, 252 Ark. at 1052, 483 S.W.2d at 183-184.
Ark. Stat. Ann. § 81 -1340 creates a right of repayment in the employer, or insurance carrier, out of the proceeds which may be asserted by intervening in the third-party action brought by the employee. In our view, neither the employer nor its insurance carrier is admitting liability when it intervenes in the third-party action. By intervening under § 81-1340, they are merely preserving their right to a lien to 2/3 of the proceeds paid to the employee-claimant as a credit against their compensation exposure. In the instant case, the employer and its insurance carrier were already exposed to liability because the workers’ compensation claim had been filed against them. To reserve their right to a credit under § 81-1340, it was essential for them to intervene in appellee’s third-party action.
The language of § 81 -1340 supports this interpretation. The statute provides in pertinent part:
Third party liability. — (a) Liability unaffected. (1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two thirds [2/3] of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(c) Settlement of claims. Settlement of such claims under subsections (a) and (b) of this section must have the approval of the Court or of the Commission, except that the distribution of that portion of the settlement which represents the compensation payable under this act must have the approval of the Commission. . . .
Where the employee has made a claim under the Workers’ Compensation Act and the employer or carrier has had reasonable notice and an opportunity to join in a third-party action, we hold that the employer and its carrier must intervene in a third-party action to have a right to a credit, whether or not the liability of the employer or the carrier has been determined. Therefore, we affirm the decision of the Arkansas Workers’ Compensation Commission.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Lawson Cloninger, Judge.
In this appeal from the decision of a chancellor denying a deficiency judgment, appellant argues two points for reversal. We find neither persuasive, and we affirm the holding of the trial court.
Appellee, Wayne Barnes, purchased a used 1972 Case excavator from Dale Scott in February, 1982, for $35,000. Appellant, Farmers and Merchants Bank of Rogers, Arkansas, financed the sale and obtained a security interest in the equipment. After appellee defaulted on the note, Scott, acting at the direction of appellant, repossessed the excavator in November, 1982. The equipment was stored on Scott’s property from November, 1982, until March, 1984. Appellant bank permitted Scott to use the excavator in his construction business during this period.
In January, 1983, appellant obtained from a Case construction equipment dealer an appraisal of the value of the machinery of between $ 11,000 and $ 12,000. The appraiser noted that $ 1,000 worth of repairs were needed, and he expressed interest in purchasing the excavator for $7,000 to $9,000 for resale.
Appellee received notice from appellant of a private sale for $12,500 to take place on April 20,1984. This sale, however, was never consummated. Instead, the excavator was sold, without notice to appellee, on June 20, 1984, for $9,500. Appellee’s account was credited with $12,500, the amount stated in the notice given him of the proposed sale in April.
In the meantime, appellant filed suit to obtain a deficiency judgment against appellee in the amount of the debt plus interest and expenses less the amount credited. The chancellor held that appellant had not proceeded in a commercially reasonable manner in that it retained the equipment for nineteen months, sold it for $9,500 when two years before it had a value of $35,000, neglected to repair the excavator although repairs would have increased the sale price, and, most significantly, permitted its agent to use the equipment extensively, thus diminishing its value. The burden of proof of the value of the collateral, said the chancellor, was upon the creditor. From the trial court’s denial of the deficiency judgment, appellant brings this appeal.
In its first point for reversal, appellant argues that the chancellor erred in finding that the sale of the excavator was not effected in a commercially reasonable manner. According to appellant, every reasonable precaution had been taken to protect appellee’s rights and to obtain the highest price possible for the repossessed equipment.
The Uniform Commercial Code, as codified at Ark. Stat. Ann. § 85-9-504 (Supp. 1985), provides that a “secured party after default may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing.” Further, “every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.”
A creditor who repossesses chattels and resells them in a manner inconsistent with the provisions of the Uniform Commercial Code bears the responsibility to prove that the sale was commercially reasonable before he is entitled to a deficiency judgment. Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983). Whether a sale of collateral was conducted in a commercially reasonable manner is essentially a question of fact. Henry v. Trickey, 9 Ark. App. 47, 653 S.W.2d 138 (1983).
The chancellor in the present case enumerated several factors that impelled him to his decision to deny appellant’s claim for a deficiency judgment. As mentioned above, one of the considerations was the excessive length of time that had elapsed between repossession and sale. Appellant cited in its brief two cases to support its position that there was nothing unreasonable in the nineteen month holding period. In both Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763 (1985), and Brown v. Ford, 280 Ark. 261, 658 S.W.2d 355 (1983), however, efforts made by the creditors to sell or repair the collateral offset the effects of long delays. In the instant case, $30 was spent six months after repossession on advertising for 120 days in a trade circular, but no local or statewide notices were run in newspapers with a general circulation.
The chancellor also expressed concern over the disparity between the price for which the excavator was sold and the value assigned it when appellee purchased it. The Arkansas Supreme Court, in Goodin v. Farmers Tractor & Equipment Co., 249 Ark. 30, 458 S.W.2d 419 (1970), quoted Ark. Stat. Ann. § 85-9-507(2) for the principle that “The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially unreasonable manner.” In Goodin, such proof was the only evidence offered of commercial unreasonableness. Here, however, other questionable elements are present in the record, and the chancellor merely added the $25,500 disparity to his list of reasons for denying appellant’s claim.
Another factor entering into the chancellor’s decision was the failure of appellant to repair the equipment. Ark. Stat. Ann. § 85-9-504 (l)(a) (Supp. 1985) permits “commercially reasonable preparation or processing” to enhance sale value and allows a creditor to recover the cost of any preparation or repairs. Appellant’s own appraiser indicated that about $1,000 in repairs were needed. Testimony at trial revealed that windows on the vehicle were broken, paint was peeling from the body, pins were worn out, teeth were worn off the bucket, and leaks were found on the machine. The chancellor, confronted with this evidence, was entitled to reach the conclusion that some expenditure on repairs would have resulted in a higher sale price.
The overriding consideration in the chancellor’s mind, finally, was the fact that appellant allowed the original owner, Dale Scott, to use the excavator in his construction business for six months. In Henry v. Trickey, supra, the creditor rendered a repossessed combine unsalable for approximately one year by loaning its engine to a customer. In the present case, the entire machine was subject to the wear and tear of construction use, and the chancellor had reason to conclude that the sale value of the equipment was diminished in consequence. When all the factors listed by the chancellor are considered together, we believe that it cannot be said that his finding that the sale of the excavator was not effected in a commercially reasonable manner was clearly erroneous or against the preponderance of the evidence.
Appellant’s second argument is that the chancellor applied the wrong measure of damages to the sale of the collateral. The judge had ruled that evidence of the use of the excavator by Scott for an extensive period of time indicated a reduction in value but that he was unable to determine the extent to which value was diminished. “As the burden of proof in this regard is upon the creditor,” said the chancellor, “a deficiency judgment cannot be granted.”
If a secured creditor sells collateral in a commercially unreasonable manner, a presumption arises that the value of the collateral is equal to the outstanding debt; the burden then shifts to the creditor to prove that the reasonable value of the collateral was less than the debt. Henry v. Trickey, supra; see also Norton v. National Bank of Commerce, 248 Ark. 143, 398 S.W.2d 538 (1966).
To provide evidence of value, appellant offered the testimony of Bill Pritchard, a Case construction equipment dealer. Mr. Pritchard appraised the worth of the excavator for a quick sale at between $11,000 and $12,000. The chancellor was entitled to regard this opinion with a degree of skepticism, however, because the witness acknowledged his interest in purchasing the equipment for $7,000 to $9,000 with the hope of realizing a good profit. Moreover, it appears from the record that the appraiser was unaware that the excavator had a new motor at the time it was sold to appellee, a fact that, in his view, would have materially aifected the value of the equipment. Pritchard also admitted that he did not start or operate the machine, although it was not customary for him to appraise a vehicle without starting it and moving it forward and backward.
Dale Scott’s foreman testified that the excavator was not in as good condition upon repossession as when it had been sold to appellee and that subsequent use by Scott did not alter its condition. Appellee countered that the equipment had suffered abuse as outlined earlier. The chancellor resolved the conflicting evidence in appellee’s favor and we find no reason to disturb his conclusion. The finding of the chancellor that appellant failed to meet its burden of proving that the value of the excavator was less than the debt of $35,000 was not clearly against the preponderance of the evidence; a deficiency judgment was properly denied.
Affirmed.
Mayfield and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
Appellant seeks reversal of the Board of Review decision finding that her appeal to the Board was filed in an untimely manner and that she had failed to show the late filing was due to circumstances beyond her control. We affirm.
Appellant first argues her appeal was filed timely. On March 22,1985, the appeal referee issued his opinion denying appellant benefits, and at the same time, appellant was notified she had twenty days, or until April 11, 1985, to appeal the decision. Within the twenty-day period, appellant admits she went to the “unemployment office” to discuss the tribunal’s decision and before leaving, she obtained an appeal form captioned “Petition for Appeal to the Board of Review.” While she concedes she failed to file this petition-for-appeal form until after the April 11th deadline, appellant argues that on April 10th she had filed three letters with the tribunal and the Board erroneously failed to consider those letters as her notice of appeal. We cannot agree.
The letters upon which appellant relies were written by others on appellant’s behalf; they make no mention of an appeal, and at most, the letters can be characterized as additional evidence that the appellant filed with the tribunal in an attempt to reverse the tribunal’s decision. Even if a notice of appeal had been filed, such letters are the type evidence the Board cannot consider for the first time in any appeal to it. See Ramsey v. Everett, Director, 7 Ark. App. 120, 644 S.W.2d 621 (1983). Accordingly, we must conclude the Board’s findings that appellant’s letters did not constitute an appeal notice and that her appeal was untimely are supported by substantial evidence.
Next, we consider appellant’s contention that no substantial evidence exists to support the Board’s finding that she had failed to show that the untimeliness of her appeal was due to circumstances beyond her control. Again, we must disagree. In Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980), this Court held that reasons for late filing involve fact issues to be determined by the Board of Review and not this Court on appeal. Here, appellant testified to certain personal and economics hardships, and said, “so I had some problems during that period of time trying to think of things when I needed to think of them.” However, she concedes that she obtained her appeal form within the twenty-day period during which she was required to file it. In fact, while appellant testified that she had misplaced the form, she admitted she waited a week before mailing it after she had relocated the form. Appellant also indicated she had intended to include the appeal form with the three letters she mailed to the appeal tribunal on April 10, 1985. Of course, her testimony cannot be taken as undisputed. Butler v. Director of Labor, 3 Ark. App. 229, 624 S.W.2d 448 (1981).
From the evidence presented, the Board could have reasonably concluded the appellant had either forgotten or decided belatedly to appeal the tribunal’s decision. Either way, the appellant had duly discussed the adverse decision with someone at the Employment Security Division and obtained an appropriate form to appeal that decision. If she had acted diligently, appellant could have easily filed a timely appeal, but she simply failed to do so. We cannot say the Board erred in finding appellant did not prove her late appeal was due to circumstances beyond her control.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Chief Judge.
Danny Ray Watts and Janice C. Watts were divorced in August of 1984 by a decree which awarded custody of their minor child to the father with specific visitation rights in the mother in accordance with a property settlement agreement. In July of 1985, the chancellor entered an order modifying that decree, finding that the mother’s petition for a change of custody should be granted because of a change in circumstances since the date of the original divorce decree which affected the best interest of the child. The appellant contends on appeal that the finding of the chancellor that there had been such a change in circumstances affecting the welfare of the child as would justify a modification of the custodial order is clearly against the preponderance of the evidence. We find no merit to this contention.
The principles governing the modification of custodial orders are well settled and require no citation. In all such cases the primary consideration is the best interest and welfare of the child and all other considerations are secondary. Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. In determining matters of child custody, a chancellor has broad discretion, which will not be disturbed unless manifestly abused. While the chancery court retains continuing power over the matter of child custody which has been awarded to one of the parents, it does not follow that changing that status should be made without proof of a subsequent material change in the circumstances affecting the welfare of the child. The original decree is a final adjudication that one parent or the other was a proper person to have care and custody of the child and before that order can be changed there must be proof of material facts which were unknown to the court at that time or that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification. Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983).
It is also well settled that although this court reviews chancery cases de novo on the record, the findings of the chancellor will not be disturbed unless clearly against a preponderance of the evidence. Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. ARCP Rule 52(a); Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983). This deference to the chancellor is even greater in cases involving child custody. In those cases a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child’s best interest. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981).
Appellant first contends that the chancellor erred in finding a material change in circumstances warranting a change of custody. The appellee testified that, although the decree awarded her rights to visit the child at specific times and during the summer months, the appellant had systematically interfered with and refused her the enjoyment of her rights of visitation. She testified that when she threatened to seek enforcement of those rights, the appellant moved the child to the State of Arizona without informing her of his intentions or whereabouts. She was unable to see the child for a period of four or five months and even had difficulty communicating with the child by telephone. In Phelps v. Phelps, 209 Ark. 44, 189 S.W.2d 617 (1945) our court recognized that a substantial denial of court-awarded visitation was a factor to consider in such cases and might constitute the required material change in circumstance.
The appellee also offered testimony that, although the appellant had been entrusted with the primary care of the child, he had not fulfilled that obligation. There was testimony that appellee’s mother primarily cared for the child until she was removed to Arizona. The child corroborated that testimony and stated that while in Arizona she was primarily in the care of other relatives. Failure to discharge court-entrusted care and custody of a minor child is also a factor which a chancellor might consider in determining whether there was a material change in circumstances as well as whether a change in custody was required in the best interest of the child.
The appellee further testified that at the time the original decree was entered she agreed to the custodial order because she had not yet completed her course of studies at Arkansas State University. She stated she agreed to that order only for such time as required to obtain her degree and find suitable employment.
The appellant denied any interference with the visitation rights, that the agreement for custody was temporary, and that he had not cared for the child. The evidence on these issues was in sharp conflict, as was the evidence of the suitability of the surroundings in which each party would place the child, their respective past and present abilities to properly care and provide for the child, and which parent would be better able to foster the child’s welfare.
The main thrust of appellant’s argument, however, is that the chancellor erred in finding that the change of custody was in the best interest of the child because of appellee’s immorality. He argued that, at the time the decree was entered, the appellee had lived with one man and, at the time of the hearing to modify the order, was cohabiting with another. He argues that she had been so sexually promiscuous during the entire period that it was inconceivable that placing the child in her custody would foster the best interest of the child, citing Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The only evidence on that issue was appellee’s candid admission that at or about the time the divorce was granted she had an adulterous affair with a person named Don. She further testified, however, that within a week of the date the decree was entered she had realized her mistake and broken off that affair. The evidenced introduced at the hearing included a letter from appellee to appellant, dated September 10, 1984, in which she asked his forgiveness, stating, “None of it was worth it. I’ve made a big mistake. I swear that Don has been the only one. I’ve prayed to God everyday to take my life — to ease the pain of what I have done.” She expressed those same sentiments to the court, stating, “I have regretted it sorely and will all my life. I can’t go back and change it, but I can go back and change some things and I can try.” She also admitted that she began sharing an apartment with a person named Charles the week before the hearing, but stated, “ [ W] e plan to be married the end of this week or next week. He is in the process of getting a divorce and it should be final either the fifth of the month or soon thereafter.” She denied involvement with any other men and there was no proof to the contrary.
The decision in Digby, and those in Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984) and Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984), are distinguishable from the present case in several material respects. In those cases the appellants had casual sexual relationships with a number of different men over short periods of time, none of them saw anything morally wrong with their conduct, and none intended to change their lifestyle. Also in those cases the court relied on additional facts which indicated that the custodial parent had otherwise failed to properly care for the children. The custodial awards in those cases were not intended as punishment for an erring parent, but based on a determination that the conduct of a custodial parent was detrimental to the best interest of the child. Although our courts have never condoned such conduct, it has always recognized a distinction between human weakness leading to isolated acts of indiscretion, which do not necessarily adversely affect the interest of a child, and that moral breakdown leading to promiscuity and depravity, which render one unfit to have custody of a minor. Harris v. Gillihan, 226 Ark. 19, 287 S.W.2d 569 (1956); Blain v. Blain, 205 Ark. 346, 168 S.W.2d 807 (1943). The chancellor was in a superior position to assess the sincerity of appellee’s atonement, her intent to immediately marry Charles, and the effect of these transgressions on the welfare of the child. With his continuing jurisdiction, he is in a position to, and should, verify those expressions of sincerity by monitoring future conduct. Based on our review of the record and giving due deference to the chancellor’s superior position, we cannot conclude that the action taken is against a clear preponderance of the evidence or that there was an abuse of discretion.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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JOHN B. ROBBINS, Judge.
This appeal arises from a breach-of-contract action regarding a lease agreement brought by appellee Shahlla Lone (Lone), the lessee, against appellant Troutman Oil Company, Inc. (Troutman), the lessor. The Lonoke County Circuit Court found that the lease was validly renewed for a term of ten years by Lone, that Troutman breached the contract by terminating the lease without good cause, and that Lone was entitled to damages for lost profits, attorney’s fees, and costs in the total sum of $96,980.17. Troutman raises the following points for reversal: (1) that the trial court erred in finding the option to renew the lease was validly exercised when the option contained no terms, rendering it void, and when there was no notice of renewal; (2) that the trial court erred when it denied Troutman’s attempts to admit evidence of prior leases between it and other lessees to show the parties’ intent regarding rental rates; and (3) that the trial court erred by denying Troutman’s motion for new trial. We affirm the trial court’s decision.
A more detailed examination of the facts is necessary to an understanding of this appeal. Troutman is in the business of supplying gasoline, oil, and similar products to service stations. While it rents the service station facilities to lessees, Troutman owns the gas in the underground tanks, and the lessee acts as a salesman of the gas and takes a percentage of the gas sales as commission. Lone leased from Troutman a gas station and convenience store located in Cabot. The lease agreement, prepared by Troutman, read in relevant part:
2. Rent. . . . The rent shall be as follows: 500.00 (FIVE HUNDRED DOLLARS) per month beginning 2nd day of Jan. 1998 and each 1st day of month thereafter for the term of this lease.
3. TERM. The term of this agreement shall begin on 2nd day Jan. 1998 and shall run continuously for 1 (ONE) year and shall have one full ten years option to lease again. Troutman shall retain the right to cancel this lease with lessee upon lessee not fulfilling with any or all of the provisions of this agreement.
8. ASSIGNMENT. Lessee shall not assign this lease or sublet the leased premises without prior written consent of Troutman. Any such assignment or subletting shall in no way relieve lessee from liability for the obligation imposed by this lease.
[Misspellings corrected.]
Lone sublet the premises by an agreement entered January 2, 1998, wherein he sublet the premises for operation by his sub-lessee in consideration for rental payments of $1500 per month. Troutman gave Lone written consent to this sublease by letter dated January 20, 1998, in which it was stated that the consent letter became a part of the lease agreement. The letter was signed by Charlie Trout-man, the company vice president and father of the company president.
Troutman, through its president Toby Troutman, gave Lone notice on May 27, 1999, that it was terminating the lease because Lone had sublet the store in violation of the prior-consent requirement. On September 17, 1999, Lone sued Troutman for breach of the lease agreement, contending that the option to renew was validly exercised, that Troutman had consented to a sublease of the property, and that there was no justification for termination. Trout-man countered that Lone’s occupancy of the station after January 2, 1999, was on a month-to-month basis, or alternatively that Lone breached the lease by fading to make daily deposits, giving bad checks to Troutman, and failing to provide copies of current inventory upon request, all in violation of other terms in the lease agreement.
The trial judge held for Lone, rendering his findings in a letter opinion that found that the “[a]ctions of parties inferred the renewal of the lease for the ten year term,” and that Troutman had insufficient reasons for terminating the lease. Compensatory damages were awarded for the lost profits of $1000 per month (based on the difference between Lone’s $500 per month rent obligation and the $1500 per month rent receivable from his sublessee), added to fees and costs. This appeal resulted.
Whether the Option to Renew was Void and Whether it was Properly Exercised
Appellant first argues that the contract was void for vagueness and could not be renewed on uncertain terms. Our standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000); City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992). However, we note that the determination of whether a contract is ambiguous is a matter of law. Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). The finding that the renewal provision was not void is not clearly erroneous.
Troutman argues that this ten-year renewal provision is void because it does not contain the terms necessary to constitute a valid option. We disagree. There is neither ambiguity nor absence of any essential terms in the option language. The option given Lone under the lease agreement was to continue the lease on the same terms for one additional period of ten years, per the plain language used.
We have recognized that other lease terms have been found void for vagueness, particularly in the context of lease-renewal options. In Lonoke Nursing Home, Inc. v. Wayne and Neil Bennett Family Partnership, 12 Ark. App. 282, 285, 676 S.W.2d 461, 463 (1984), Judge Cooper wrote that the lease option to renew therein was void for vagueness because it did not include the terms for the renewal:
Generally, courts will not supply missing terms in a lease when the parties have not stated in their agreement a definite basis to guide the court’s effort to effectuate the parties’ agreement. The Arkansas Supreme Court has held that “an option in a written lease to renew upon terms and conditions to be agreed upon is void for uncertainty.” Ferrill v. Collins, 225 Ark. 247, 281 S.W.2d 939 (1955). However, in Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S.W. 694 (1921), the Court upheld an option which did not provide for the amount of the rental, but where the parties had agreed that a board of arbitrators would fix the rental. This method of fixing the rent was upheld because of its objective nature. The appellants argue that the language in the option which provides that the renewal is to be on terms “compatible to similar facilities” in Arkansas is objective enough to guide the court in fixing the terms. We disagree. This option is fatally defective in that no definite method for determining the rental was established. As this Court has stated:
where the annual rental is not agreed upon and the contract does not otherwise provide a manner for its definite determination, the contract does not meet [the test for definiteness].'
Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (Ark. App. 1980).
Likewise, in Herd v. Smith, 33 Ark. App. 143, 145-146, 803 S.W.2d 938, 940 (1991), we found an option term too vague to enforce:
We agree with the trial court that the option for renewal in the original lease was void for uncertainty. Generally, courts will not supply missing terms in a lease when the parties have not stated in their agreement a definite basis to guide the court’s effort to effectuate the parties’ agreement. Lonoke Nursing Home, Inc. v. Wayne and Neil Bennett Family Partnership, 12 Ark. App. 282, 676 S.W.2d 461 (1984). The supreme court has consistently held that an option in a written lease to renew upon terms to be agreed upon in the future is void for uncertainty. Hatch v. Scott, 210 Ark. 665, 197 S.W.2d 559 (1946). In the case at bar, the statement that the amount of rental could not exceed the cost-of-living index is simply not objective enough to guide the court in fixing the terms of a new lease and therefore cannot be enforced.
Essentially, these cases recognize that those kinds of provisions are nothing more than an agreement to reach an agreement, which are too vague to enforce. See, e.g., Phipps, supra. However, we agree with the trial court that there is no such agreement to agree in the case on appeal before us. Indeed, the terms are very clear: The rent is $500 a month for the term of the lease; the term is one year with one full ten years option to lease again. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000). Different clauses in a contract must be read together and construed so that all of its parts harmonize, if that is at all possible. Boatmen’s Ark., Inc. v. Farmer, 66 Ark. App. 240, 989 S.W.2d 557 (1999).
As to whether Lone was charged with the duty to specifically notify Troutman of intent to renew after the first year expired, we find no clear error in the trial judge’s conclusions. The trial judge cited to 17A Am. Jur. 2d Contracts § 519, which states that if a fixed-time contract provides that a party holds an option to continue the agreement for another similar term, “notice of an election to exercise the option to renew will not be required, in the absence of a contrary provision in the agreement; a continued exercise of the rights conferred by the contract, after the expiration of the first term of its duration, will be sufficient.” Likewise, in 17B C.J.S. Contracts § 501, it states that: “ [continuing to act under a contract effectively renews it where it . . . otherwise grants a privilege of renewal which is not dependent on any prior notice.” Thus, there is support for the conclusion reached by the trial court that the parties effectively renewed the ten-year option on the same terms as the one-year lease by continuing to act in the lessor/lessee capacity after the first year expired. It is noteworthy to add that Troutman did not attempt to terminate the lease until five months after the one-year term had expired, lending support to a waiver of any notice thought required and an acknowledgment of an exercise of the ten-year option. Furthermore, Troutman relied on a provision in the lease as its purported basis for terminating the lease, i.e., Lone’s subleasing the property without prior written consent, an invalid basis as conceded at trial. The other alleged defaults occurred after the termination was effectuated and Lone had been ousted.
To illustrate waiver, the case of Riverside Land Co. v. Big Rock Stone & Material Co., 183 Ark. 1061, 40 S.W.2d 423 (1931), is instructive. There, the supreme court, acknowledging that the giving of notice was a condition precedent to the extension of the lease in that case, held that the lessor had waived the lessee’s failure to give notice of the extension by accepting rent for over a year, without any objection, before the lessee gave notice of its desire to extend the lease. See id.
This is supported in Stallings v. Poteete, 17 Ark. App. 62, 67, 702 S.W.2d 831 (1986), where it was stated:
Our supreme court has long held that a general covenant to renew is sufficiently certain because it imports a new lease like the old one upon the same terms and conditions. Keating v. Michael, 154 Ark. 267, 242 S.W. 563 (1922). Here, the term of the lease is provided in the same paragraph as the renewal option.
Based upon the foregoing authorities, the trial court did not err in declining to hold the option right void for vagueness. The lease contract did not make the renewal dependent upon certain undefinable acts or facts, and the renewal was effective in the absence of a required-notice provision.
Refusal to Admit Prior Unrelated Leases into Evidence
Troutman argues that the circuit court abused its discretion in not permitting it to introduce evidence of two prior leases of this convenience store location to demonstrate trade customs and usages in the context of gas/convenience store rentals and options to renew. In sum, the prior leases were intended to demonstrate that Troutman never intended to lease this property for $500 per month for ten years, and that it intended to negotiate the monthly rent upon notice of intent to renew. The two leases dated 1993 and 1995 were with other tenants and provided for $1000 per month rent. The trial court excluded the leases on the basis of irrelevancy. The trial court did not err.
Under Ark. R. Evid. 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Bice v. Hartford Accident & Indem. Co., 300 Ark. 122, 111 S.W.2d 213 (1989). The trial court has discretion in determining the relevance of evidence, Simpson v. Hurt, 294 Ark. 41, 42, 740 S.W.2d 618 (1987), and its decision on such a matter will not be reversed absent a manifest abuse of that discretion. Wood v. State, 20 Ark. App. 61, 65-66, 724 S.W.2d 183 (1987); see also Oxford v. Hamilton, 297 Ark. 512, 515, 763 S.W.2d 83 (1989); Waeltz v. Arkansas Dep’t of Human Servs., 27 Ark. App. 167, 171, 768 S.W.2d 41 (1989).
Appellant wanted the court to infer that a higher rent would surely have been contemplated for any renewal of the lease as evidenced by other lessees’ contracts at this location. Those contracts were irrelevant. Perhaps evidence of negotiations that occurred between Troutman and Lone prior to entering into the subject lease agreement would be relevant to resolve any ambiguity in their agreement had there been any, but other contracts are not relevant. See, e.g.j Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997) (holding that in a breach-of-contract suit between former associate and firm, the trial court properly excluded as irrelevant the testimony of a law school professor who would explain customary practice when an attorney leaves a law firm); P.A.M. Transport, Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993) (holding that the testimony of manager of health-care plan administrator’s actuarial division that “maximum liability” clause in parties’ contract was same as that used in insurance industry standard form was of questionable relevancy in employer’s suit for breach of contract and deceit; trial court properly excluded it).
Denial of Motion for New Trial and for Findings of Fact
Troutman’s last point on appeal is not properly before us for consideration. On July 10, 2000, Troutman timely filed its notice of appeal from the underlying judgment that was entered June 19, 2000. Troutman’s motion for a new trial and amended findings of fact filed June 29, 2000, was not ruled on by the trial court; therefore, it was deemed denied July 29, 2000, nineteen days after Troutman’s notice of appeal was filed.
According to Rule 4 of the Arkansas Rules of Appellate Procedure — Civil, a notice of appeal filed after the judgment is entered, but before a posttrial motion is resolved, is effective to appeal the underlying judgment. Ark. R. App. P. — Civ. 4(a) and (b). But, “[a] party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with Rule 3(e).” There is no amended notice of appeal in the abstract, and this precludes our consideration of his arguments contained in the motion.
The trial court’s decision is affirmed in all respects.
Stroud, C.J., Griffen, and Vaught, JJ., agree.
Bird and Neal, JJ., dissent. | [
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Tom Glaze, Judge.
Appellant appeals the Workers’ Compensation Commission decision denying him benefits. Fie asserts the Commission erred (1) in finding his injury did not arise out of and in the course of his employment, and (2) in denying his petition to introduce new evidence. We disagree and therefore affirm the Commission’s decision.
Appellant’s basic claim is that he was exposed to large amounts of formaldehyde from the wall paneling in his new office into which he moved on September 1, 1975, and that exposure led to allergy problems which have rendered him totally and permanently disabled. Fie denied having any allergies or symptoms prior to moving into the new Farm Bureau office. Upon medical advice, appellant left his office in August, 1978, and continued his work as an insurance adjuster for appellee at his home. He either quit or was terminated from his employment in August, 1979, and has not worked since.
In a seventeen-page opinion, the Administrative Law Judge tracked the relevant evidence in detail and concluded it was in sharp conflict concerning the origin and cause of appellant’s allergy problems. For example, appellant never recalled being treated for allergies prior to September 1,1975 (when he moved to his new office), but his family physician testified that on April 28, 1975, he had treated appellant for an allergic reaction involving post-nasal drainage. In addition, the medical testimony offered by appellant and appel-lees was in sharp contrast. Dr. William Rea, testifying on appellant’s behalf, concluded that appellant’s exposure to the formaldehyde fumes in his office damaged his immune system so that he now is highly sensitive to almost everything in the environment. Dr. Rea’s conclusion was largely contradicted by the other doctors testifying in this case. For instance, Dr. Edwin L. Harper noted appellant’s treatment for allergy problems prior to the formaldehyde exposure, which lead him to believe other allergies — besides the formaldehyde irritant — had contributed to appellant’s condition. In fact, Harper believed any of appellant’s symptoms caused by formaldehyde would have ended six months after he left his office in August, 1978. Another doctor, Kelsey Caplinger, whose medical practice is confined to allergy and immunology, was critical of Dr. Rea’s testing protocol and referred to Rea’s treatment of appellant as “unconventional.” Dr. Caplinger concluded that appellant’s condition was not produced by formaldehyde exposure. Other doctors testified concerning their treatment or evaluation of appellant, and none of their testimonies established that appellant’s symptomology or condition was caused by formaldehyde exposure.
Of course, the Commission’s duty is to weigh medical evidence as it does other evidence. We have held that when medical testimony is conflicting, the resolution of the conflict is a question for the Commission. When the Commission chooses to accept the testimony of one physician in such cases, the court is powerless to reverse the decision. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). If the Commission had accepted Dr. Rea’s opinion and believed appellant’s version of what caused his condition, the Commission certainly could have held appellant’s claim work-related and compensable. Instead, the Commission viewed Dr. Rea’s testimony as lacking in credibility and surmised from the other evidence presented that appellant’s symptoms arose out of an allergy condition he had suffered prior to his exposure to formaldehyde. In sum, we believe the evidence substantially supports the Commission’s finding that appellant failed to show by the preponderance of credible evidence that his condition was work-related.
Appellant’s second contention for reversal is that the Commission erred in failing to allow the introduction of new evidence to rebut evidence (an exhibit) placed into the record by the Administrative Law Judge after the final hearing was held in this cause on July 2, 1981. The case was actually submitted to the Law Judge sometime after December 10, 1981. The exhibit in question is a regulation, 29 C.F.R. § 1910.1000, Table Z-2 (July 1, 1981), which reflects the OSHA ceiling levels for formaldehyde exposure. On his appeal to the Commission, appellant sought to introduce into evidence an M.I.T. study on the relationship between formaldehyde and cancer. The Commission ruled the study was inadmissible, and appellant duly proffered it, stating the study rebutted and discredited the OSHA levels set out in the C.F.R. regulation admitted into evidence by the Administrative Law Judge. We agree with the Commission, and in doing so, we first observe that appellant simply was not prejudiced by the admission of the C.F.R. regulation, and consequently the regulation in no way served as a basis to admit the M.I.T. study as “rebuttal evidence.” The OSHA ceiling levels for formaldehyde — to which appellant takes exception — is not only set out in the C.F.R. regulation admitted by the Law Judge as an exhibit; that same maximum formaldehyde level information was fully set forth in a National Institute for Occupational Safety and Health (NIOSH) report that had been introduced by the appellant before this case was submitted to the Law Judge for decision. In brief, the C.F.R. regulation admitted by the Law Judge served as the citation of authority for the maximum formaldehyde level information contained in the NIOSH report which already was made a part of the record by the appellant.
Although appellant does not argue that the M.I.T. study is newly discovered evidence, we dispose of that issue as a possibility for admission as well. Both the NIOSH report and M.I.T. study were dated April, 1981; however, the NIOSH report was timely submitted into evidence prior to submission of the case to the Law Judge, but the M.I.T. study was not. Clearly, the study was neither newly discovered evidence nor admissible as such.
In sum, the C.F.R. regulation was made a part of the record in this case by the appellant’s introduction of the NIOSH report, and its admission into evidence occurred prior to the Law Judge’s taking this matter under submission. We fail to see how appellant can complain of the Law Judge’s making the C.F.R. regulation a separate exhibit to the record when that regulation was contained in and was an integral part of the NIOSH report which he had introduced earlier in the proceeding.
We affirm.
Affirmed.
Mayfield, C.J., and Cooper, J., agree.
Appellee argues this case was submitted to the Administrative Law Judge in January, 1982. The record reveals the case was submitted at least after December 10, 1981, which is the date Dr. Caplinger was deposed by the parties; the NIOSH report was introduced at this same time. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was convicted by a jury of making and uttering a hot check and sentenced as an habitual offender to a term of three years in the Arkansas Department of Correction and a fine of $1,200.00. From that conviction, comes this appeal.
For reversal, the appellant contends the verdict of the jury was contrary to the law, inasmuch as Ark. Stat. Ann. § 67-720 requires intent to defraud as an element of the offense with which the appellant was charged and the appellant produced sufficient evidence to negate such intent. We disagree.
On July 19, 1982, the appellant, who was the owner of K-City Furniture Mart, purchased 12 china cabinets from Ruff and Parkhill Mfg. of Harrison. The appellant had been a regular customer of Ruff & Parkhill’s. He testified that at the time he purchased these cabinets and paid for them with a check drawn on the account of K-City Furniture Mart for $1,200.00, he informed Mr. David Ruff, a partner in Ruff & Parkhill, that he would take the cabinets to Texar-kana where he had a buyer and, upon selling the cabinets, return and deposit the funds from the sale into the account upon which the $1,200.00 check was drawn in order for there to be sufficient funds in his account for the check to clear. Mr. Ruff would neither confirm or deny the appellant’s claim that he stated that his account had insufficient funds in it at the time of the sale, but both Mr. Ruff and his partner, Mr. Parkhill, confirmed the appellant’s testimony that he told them he had a buyer in Texarkana. The appellant’s buyer in Texarkana refused to purchase the cabinets, but the appellant was able to sell the cabinets and he made a deposit into his account of $1,220.00. Despite this effort, there were insufficient funds in the appellant’s account to cover the check to Ruff & Parkhill allegedly due to the fact a check for $925.25 deposited by the appellant into his account was returned to the appellant because it was drawn on an account that had been closed, and this amount ($925.25) was debited against the appellant’s account. The appellant claimed to have made arrangements to pay the check off, and it was paid a few days before trial.
The appellant contends that the fact that he told Ruff & Parkhill that his check was no good and requested that they refrain from depositing his check until he could sell the cabinets and that he made arrangements to pay off the check negates any guilty intent that is required by Ark. Stat. Ann. § 67-720, which provides:
It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached or to make payment of any taxes, licenses or fees, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any in-state or out-of-state bank, person, firm or corporation, knowing at the time of such making, drawing, or uttering or delivering, that the maker, or drawer has not sufficient funds in, or on deposit with, such bank, person, firm or corporation for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding. [Acts 1959, No. 241, § 2, p. 1204; 1977, No. 155, § 1, p. 167; 1981, No. 899, § 1, p. 2112.]
According to Ark. Stat. Ann. § 67-722, a prima facie case of intent to defraud is made when a check is introduced into evidence with an endorsement showing it was unpaid because of insufficient funds. Rice v. State, 240 Ark. 674, 401 S.W.2d 562 (1966). That the check was so returned is uncontroverted. In order to rebut this inference, the accused must put on evidence which demonstrates the lack of intent to defraud. Id.
The appellant testified that Ruff and Parkhill knew his check was no good when he delivered it to them and that he made arrangements with David Ruff to hold the check until he returned from the sale of the cabinets and deposited the proceeds from this sale into his account. Mr. Ruff would not confirm that allegation and Mr. Parkhill denied it. The appellant testified that he was aware at the time the check was written that there were not sufficient funds in his account to cover the check. His acts and assertions tend to support his claim that he had no intent to defraud. Also, the evidence that a check deposited by him into his account was returned because the account upon which it was drawn was closed tends to support his version of the transaction. However, whether the appellant’s testimony was sufficient to overcome the state’s prima facie case was for the jury. Id. Since intent is a state of mind which must of necessity be inferred, Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979), the real qustion is whether there was sufficient evidence introduced by the state so as to present a fact question for the jury. Clearly, there was. The conflicts in the testimony were for the jury to reconcile. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Although we recognize that the jury could easily have reached the opposite result, we cannot say that there is no substantial evidence to support the appellant’s conviction.
Affirmed.
Mayfield, C.J., agrees. Glaze, J., concurs. | [
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LAYTON Roaf, Judge.
Beverly Clardy appeals from a Workers’ Compensation Commission ruling that injuries she sustained in a fall at work did not occur at a time when employment services were being performed because she had briefly walked across a driveway to speak to a co-worker while she was engaged in taking waste material to an outside storage area. The Commission consequently reversed the Administrative Law Judge’s determination that Clardy had established that she sustained a com-pensable injury and denied benefits. The substantial-evidence standard of review requires that we affirm this case.
On July 28, 1998, Beverly Clardy, twenty-four years old and pregnant, was employed in the dietary area of Medi-Home Nursing Home. Her duties on that date included emptying waste from dirty dishes into “slop buckets” and taking the buckets to a rear outside storage area. As Clardy was returning from the storage area to retrieve a second bucket, she deviated approximately ten feet across a paved driveway adjoining a sidewalk to speak to an off-duty coworker whose car was parked in the drive. Clardy testified that the area was slippery because mop water was routinely dumped there by employees, and that she slipped and fell down a grassy hill adjoining the driveway, fracturing her ankle. The co-worker, Jeremy Cox, testified that he was preparing to fish at a pond located behind the nursing home when he saw Clardy at the hack door pushing a slop bucket, that they exchanged “hellos,” and that when he looked up again Clardy had fallen.
The ALJ found that Clardy and Cox presented credible testimony and that Clardy’s fall and resulting injuries occurred on the employer’s premises, during her regular working hours, at a time when she was on duty and being paid, and while she was carrying out an assigned duty of transporting garbage and trash to a designated storage area. The ALJ further found that the digression of ten to twelve feet from the most direct route back to the kitchen to speak to a co-worker was only a “de minimus deviation” and was not sufficient to take her outside the course and scope of her employment. The Commission reversed the ALJ, issuing majority, concurring, and dissenting opinions. The majority opinion found that Clardy had to get off the sidewalk and cross the pavement to get to the place she fell, characterizing this deviation as an “unscheduled and unauthorized break,” and further stated that Clardy had “diverted from her job duties” in “social activities for [her] personal pleasure” that did not further the interests of her employer when she sustained injuries. In its opinion, the Commission allowed that “if [Clardy] had merely said, ‘hello’ on the way back inside,” and “had not gone over to the car to chat,” her fall would have been compensable. Clardy appeals from the finding that she was not performing employment services at the time of her injury and from the denial of benefits.
On review, this court will affirm if the Commission’s decision is supported by substantial evidence. Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001). To determine if the decision is supported by substantial evidence, this Court views the evidence in the fight most favorable to the Commission’s findings and affirms if reasonable minds could have reached the same conclusion. Id. Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires the reviewing court to affirm the Commission if its opinion displays a substantial basis for the denial of relief. Hislip v. Helena/West Helena Sch., 74 Ark. App. 395, 48 S.W.3d 566 (2001); see also, Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). The provisions of the Workers’ Compensation Act were formerly construed liberally. However, Act 796 changed the former practice and mandated that the Commission and the courts construe the provisions strictly. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 42 S.W.3d 822 (2001). See Ark.Code Ann. § 11-9-704 (c)(3) (Repl. 1996).
In this case, the Commission considered the evidence presented in fight of Arkansas Code Annotated § 11-9-102(4)(B)(iii) (Supp. 1999), which states that “compensable injury” does not include “[i]njury which was inflicted at a time when employment services were not being performed. . . .” Arkansas Code Annotated § 11-9-102(4)(A)(I) (Supp. 1999), defines a “com-pensable injury” as follows:
[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” if it is caused by a specific incident and is identifiable by time and place of occurrence. . . .
Although distinguishable from the case at bar, Arkansas case law has addressed situations where both employment services and personal services were being performed concurrendy, and the activity thus served a dual purpose. This Court stated that the test for determining whether an employee is acting within the course of employment as required for a compensable injury is whether the injury occurred “within time and space boundaries of employment, when the employee is carrying out the employer’s purpose or advancing employer’s interests direcdy or indirecdy.” Ray v. University of Arkansas, 66 Ark. App. 177, 179, 990 S.W.3d 558 (1999) (finding that appellant performed employment services when her employer received a benefit from the appellant’s presence during her break by the requirement that she leave her break if a student needed her assistance, and she was injured when she slipped on salad dressing while reaching for a snack from the cafeteria for her own consumption) (citing Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W. 2d 956 (1997)). See White v. Georgia Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999) (holding that the employer gleaned a benefit from the appellant remaining near his work station to monitor machines, which was a requirement of his job duties, and therefore, the appellant was performing employment services).
This court also has recently addressed the meaning of performing “employment services” where the employee’s personal comfort was at issue. See Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 332, 49 S.W.3d 126 (2001); Collins v. Excel Specialty Prod., 74 Ark. App. 400, 49 S.W.3d 161 (2001). See also Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1997). In Matlock, supra, the appellant appealed the decision of the Commission that denied benefits for injuries suffered when she fell while returning to her work station after a trip to the restroom. The Commission held that the appellant was not performing employment services when she was injured, and thus, her injury was not compensable. This court reversed and held that the Commission’s finding that the appellant was not performing employment services was not supported by substantial evidence. The court stated that the “employment services” requirement precluding worker’s compensation benefits for acts performed by employees solely for their own benefit did not apply to acts of personal convenience or comfort. In explaining the personal-comfort doctrine, the court stated, “Although technically the employee’s actions do not contribute directly to the employer’s profits, compensation is justified under the ‘personal comfort’ exception on the rationale that the employer indirectly benefits in the form of better work . . . and on the theory that such a minor deviation does not take the employee out of the employment.” Matlock, supra.
Whether a worker is performing employment services depends on the particular facts and circumstances of each case. In Matlock, this court outlined several factors to be considered in determining whether conduct falls within the meaning of “employment services.” These factors include: 1) whether the accident occurs at a time, place, or under circumstances that facilitate or advance the employer’s interests; 2) whether the accident occurs when the employee is engaged in activity necessarily required in order to perform work; 3) whether the activity engaged in when the accident occurs is an unexpected part of the employment; 4) whether the activity constitutes an interruption or departure, known by or permitted by the employer, either temporally or spatially from work activities; 5) whether the employee is compensated during the time that the activity occurs; and 6) whether the employer expects the worker to stop or return from permitted non-work activity in order to advance some employment objective.
We are not unmindful of the fact that this court, in dicta, has stated that the “personal comfort” doctrine has been abrogated by the passage of Act 796 of 1993 and the drastic changes to our workers’ compensation law wrought by this legislation. See Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). However, in Matlock, supra, the court pointed this out and stated, “We serve notice that our statement in Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999), that ‘the personal-comfort doctrine is no longer the law,’ was orbiter dictum.” In any event, according to Larson’s, the “personal comfort” doctrine extends to various life necessities such as satisfying thirst, eating, discharging bodily wastes, protecting oneself from excessive heat or cold, or cleansing oneself. 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 21.10 (2000); see also Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 329, 49 S.W.3d. 126 (2001). Clearly, Clardy’s diversion to speak to a co-worker would fail to come within this doctrine. Moreover, even if we were to apply the Matlock factors to the facts in this case, the Commission’s decision must still be affirmed. The activity at issue is not the transport of waste buckets, but Clardy’s diversion to talk to a co-worker. Although we may not agree with the Commission’s characterization of the activity as an “unscheduled and unauthorized break,” Clardy testified that she was not on a scheduled break and had used all of her allotted breaks for the day. Even so, unless her employer was a “Simon Legree,” there is no reason for the Commission to speculate that such a minor diversion would have been forbidden to the nursing home’s employees. However, there was no further evidence presented by Clardy concerning the nature of her intended conversation with Cox, how this activity might have in any respect served the employer’s interests, or was nécessary to the performance of any of Clardy’s duties, and the burden of proving entitlement to benefits ultimately rested upon her shoulders.
In sum, we cannot say that Clardy’s activity at the time of her fall comes within either the “personal comfort” or “dual purpose” doctrine, and we can find no authority under our post-1993 workers’ compensation law for carving out a “de minimus” exception to the requirement that the employee be engaged in the performance of employment services at the time an injury occurs. Given the evidence in this case, we cannot say the Commission’s finding that Clardy’s digression across the driveway was purely personal in nature, or its ruling that Clardy was not performing employment services at the precise time she fell are not supported by substantial evidence.
Affirmed.
Hart, J., agrees.
PITTMAN, J., concurs in the result.
Harriet Beecher Stowe, Unde Tom’s Cabin or Life Among the Lowly (1852).
But see 1 Arthur Larson, Larson’s Workers’ Compensation Law § 17.04 (discussing triangular deviation); 1 Arthur Larson, Larson’s Workers’ Compensation Law § 17.06[3] (discussing size of deviation). | [
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Per Curiam.
We find the Supreme Court’s holding in Goodin v. Goodin, 240 Ark. 541, 400 S.W.2d 665 (1966), controlling in this special proceeding. Therefore, appellant’s motion to stay the chancellor’s custody order pending an appeal to this Court is hereby dismissed without prejudice to request such a stay from the trial court. | [
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Wendell L. GRIFFEN, Judge.
This case involves a dispute about a chancellor’s power to clarify a temporary order after a divorce decree is entered. The decree, entered on March 14, 2000, ordered appellant, James Narup, to maintain appellee Linda Leann Narup’s medical insurance through July 2000. However, the decree failed to mention the party responsible for appellee’s outstanding medical expenses. Appellee subsequendy filed a motion seeking clarification of previous orders — including a 1999 temporary order concerning payment of appellee’s medical expenses. Following a hearing, the chancellor entered an order that found appellant responsible for appellee’s medical expenses from 1997 to March 14, 2000. Appellant now argues that the chancellor lacked jurisdiction to modify the divorce decree and that the order from the temporary hearing did not conform to the trial record. We affirm.
Facts and Procedural History
Appellant filed for divorce on March 10, 1999. The court scheduled a temporary hearing for April 28, 1999. During that hearing, the chancellor stated the following:
The COURT: I’m going to order $3,000 in spousal support, pro-rate April, the next payment due May 1. Mr. Narup will pay the drug bills that are at the pharmacist that are prescribed. Ms. Narup will pay her own co-pay, insurance co-pay.
Following the hearing, the chancellor entered a temporary order, dated May 21, 1999, that directed appellant to pay appellee’s medical and pharmaceutical expenses that were not covered by insurance with the exception of a co-payment, which the chancellor ordered appellee to pay. Neither party appealed the temporary order.
A two-day hearing occurred on January 20 and 21, 2000. During the hearing, appellant introduced Exhibit 1, which outlined the parties’ assets and liabilities and included a list of appellee’s outstanding medical expenses from 1997 through 1999. Following the hearing, the chancellor entered a divorce decree on March 14, 2000, that ordered, among other things, appellant to maintain appellee’s medical insurance through July 2000. However, the order did not address the party responsible for appellee’s outstanding medical expenses. Neither party appealed the decree.
On March 29, 2000, appellee filed a Motion for Clarification regarding her outstanding medical expenses and argued that the decree failed to address the party responsible for paying medical bills that she incurred through 1999. Appellant filed a response, dated April 6, 2000, and contended that appellee had enough money to pay her medical expenses and that the chancellor did not order him to pay medical expenses. He further alleged that the expenses were not reasonable or necessary.
The chancellor held a hearing on the Motion for Clarification on June 21, 2000. He later entered an order dated June 30, 2000, that directed appellant to pay appellee’s medical expenses from 1997 through the date of the divorce. In making his findings, the chancellor referred to previously entered orders, including the temporary order dated May 21, 1999, which ordered appellant to pay appellee’s medical and pharmaceutical expenses not covered by insurance. Appellant filed a motion for reconsideration on July 21, 2000. That motion marked the first time that appellant alleged that the 1999 temporary order erroneously directed him to pay appel-lee’s medical bills. In response, appellee argued that appellant’s motion for reconsideration should be dismissed as untimely because it was filed more than ten days following the entry of the June 30, 2000 order. Alternatively, she asserted that the chancellor discussed the medical expenses during the two-day trial and at the 1999 temporary hearing when he ordered her to pay a co-insurance payment of $10 and $20 per visit. She contended appellant did not file a timely appeal or motion regarding the 1999 temporary order, and that the temporary order should not be modified. Also, she argued that the June 30, 2000 order was not a modification to the final decree. Appellant now challenges the June 30, 2000 order on appeal, contending that the chancellor lacked jurisdiction to enter the order and that the temporary order from which the chancellor based his decision did not conform to the transcript of the temporary hearing.
Standard of Review
Chancery decisions are reviewed de novo on appeal, and are not reversed unless this court finds that the chancellor’s decision is clearly erroneous. See Reddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). We hold that the June 30, 2000 order directing appellant to pay appellee’s medical expenses from 1997 through the date of the divorce was not clearly erroneous because the chancellor had inherent power to correct the record pursuant to well-settled case law.
Jurisdiction to Enter June 30, 2000 Order
Trial courts have inherent power to enter an order for the purpose of correcting a judgment to ensure that the judgment is truthful and that it accurately reflects the court’s original ruling. See McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984). This power is not absolute, and the court is limited to correcting the order to reflect the action the court actually took as demonstrated by the record rather than the action the court should have taken. See id. .This being so, a trial court has the power to correct a decree to accurately reflect its original rifling or to interpret its prior decision. See Sims v. First State Bank of Plainview, 73 Ark. App. 325, 43 S.W.3d 175 (2001).
In Sims, supra, the appellants argued that the chancellor had jurisdiction to set aside a November 1999 replevin order based on their January 24, 2000 motion to set aside pursuant to Rule 60(b) of our Rules of Civil Procedure. Our court disagreed, and held that Rule 60 expressly prohibits a trial court from modifying or setting aside an order after the expiration of ninety days unless a party presents proof of an enumerated exception. However, we recognized a trial court’s inherent power to correct a record to ensure that the record accurately reflects what actually happened. We then upheld the chancellor’s order entered in April 13, 2000, as an interpretation of its November 1999 order. See Sims, supra.
The record in the present case demonstrates that the chancellor entered the temporary order, dated May 21, 1999, which directed appellant to pay appellee’s medical and pharmaceutical expenses not covered by insurance with the exception of a co-payment amount. In addition, during the trial, appellant offered into evidence Exhibit 1, which included an itemized list of appellee’s medical expenses from 1997 through 1999.
Contrary to appellant’s contentions, the chancellor’s June 30, 2000 order did not modify its March 14, 2000 decree. Instead, the order interpreted the trial court’s May 21, 1999 order and clarified its March 14, 2000 decree with respect to the earlier court’s original ruling. Given our decision in Sims, supra, the chancellor had jurisdiction to do so.
Failure of Temporary Order to Conform to the Transcript
For his second point, appellant asserts that the temporary order that the chancellor relied on in entering the June 30, 2000 order did not conform to the transcript. Appellant’s argument is not timely. Our laws are well settled that an appellant may not argue on appeal that a trial court acted erroneously when the appellant encouraged, acquiesced, or consented to the action. See Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992). To preserve an allegation of error, an appellant is required to raise the error in the court proceeding below, at the first opportunity. See Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Following a temporary hearing on April 28, 1999, the chancellor entered a temporary order on May 21, 1999. Appellant did not object to the order, move for the chancellor to reconsider the order, or seek to correct the order. It is significant that appellant did not complain about the temporary order during the two-day hearing. Appellant also did not object to the language in the order when.he responded to appellee’s motion for clarification or during the hearing on the motion for clarification. The record indicates that the first time appellant complained about the language of the order was more than a year later when he filed a motion requesting that the chancellor reconsider his June 30, 2000 order. Because appellant did not seek to modify or correct the temporary order in a timely fashion, he has not preserved this issue for appellate review.
Affirmed.
Stroud, C.J., and Neal, J., agree. | [
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D. Vaught, Judge.
Appellant Scharel Ann Burley was convicted of second-degree murder and sentenced by a jury to eighteen years’ imprisonment in the Arkansas Department of Correction. Burley raises two points on appeal. First, she contends that there was insufficient evidence to support the jury verdict. Second, Burley argues that the trial court abused its discretion by allowing the State to introduce evidence of an alleged prior bad act under Rule 404(b) of the Arkansas Rules of Evidence. We reverse and remand on the second point.
I. Facts
On Wednesday, January 12, 2000, Central Emergency Medical Services responded to a 911 call from Prairie Grove, Arkansas. The paramedics arrived at the caller’s home at 8:48 p.m. to assist a baby in distress. Moments after the paramedics arrived, the baby stopped breathing. The child was identified as eighteen-month-old Samuel Sams. Samuel had been vomiting clear liquid and green mucus, and was breathing at a rate of ten breaths per minute. The paramedics began CPR and transported Samuel to Washington Regional Medical Center. He was pronounced dead at 10:47 p.m.
Dr. Charles Kokes, a medical examiner with the State Crime Lab, performed the autopsy. The cause of death was determined to be acute peritonitis caused by a tear in the child’s bowel. The tear was caused by an end-cap of a thermometer, measuring about three inches in length. The end-cap was still- inside Samuel at the time of the autopsy. Dr. Kokes testified that peritonitis is associated with severe pain, but is not necessarily fatal. He further testified that the perforation of the rectal wall occurred six to. twenty-four hours prior to Samuel’s death. Dr. Kokes opined that the force necessary to cause this type of tear would be roughly equivalent to pushing the eraser end of a pencil through six sheets of Saran Wrap. The medical examiner ruled Samuel’s death a homicide and concluded that the perforation of his rectum wall by a thermometer cap was “not an accidental happenstance.”
Appellant was the child’s caregiver at the time that the emergency call was made. Samuel had been in her care since Saturday, January 8, 2000. She told investigators that Samuel had a fever when she picked him up from his mother’s home on Saturday and that she had taken his temperature each day he had been in her care using a digital ear thermometer. Appellant denied ever using a rectal thermometer on Samuel and stated that although she did own a rectal thermometer, she had not seen it for several months. She also told the investigator that she had called the emergency room when Samuel’s condition began to deteriorate and was told that Samuel would be fine as long as she could keep him hydrated. During the course of the investigation, appellant admitted that Samuel had not left her sight while he was in her charge, and that she was his only caregiver during the time period in question.
A search of a trash can in appellant’s home produced a clear piece of a thermometer cover that matched the piece found inside of Samuel’s abdominal cavity. The police also found a rectal thermometer on a bookshelf in appellant’s apartment. Paul Williams testified that around Thanksgiving he gave appellant a rectal thermometer that he received during a promotional event held by his employer, Wal-Mart. He further testified that he had seen Samuel the evening prior to his death and that there “was nothing wrong with him.” However, Williams also testified that the next morning he observed Samuel in a crib and he “was just laying there like he was dead.”
Brenda Westphall testified that her son had been in appellant’s care on Sunday, January 9, 2000. She further stated that she borrowed a rectal thermometer from appellant on Sunday when she came to pick up her son. After taking her son’s temperature, she left the thermometer, with both pieces of the protective cover intact, on a nightstand in appellant’s apartment. According to Westphall’s testimony, the following day she noticed that the thermometer had been moved from the nightstand. Two other witnesses testified that they had observed appellant taking Samuel’s temperature using a rectal thermometer. Finally, appellant’s telephone records were subpoenaed and the police found no evidence that appellant had made a call to the emergency room to seek advice on Samuel’s care.
On February 18, 2000, appellant was first charged with second-degree murder; however, the information was later amended to first-degree murder. A jury trial was held on August 8-9, 2000. A jury found appellant guilty of murder in the second degree, sentenced her to eighteen years’ imprisonment in the Arkansas Department of Correction, and imposed a $12,000 fine.
II. Sufficiency of the Evidence
First, appellant challenges the sufficiency of the evidence to support the jury verdict of second-degree murder. Specifically, appellant argues that the State failed to prove that she “knowingly” caused the death of Samuel. In response, the State argues that the issue was not properly preserved for appeal. The State admits that appellant’s motion for a directed verdict as to second-degree murder was properly executed but contends that appellant failed to get a ruling on her motion. In response to appeUant’s directed-verdict motion, the trial court ruled that the State has “made a prima facie case on the murder in the first-degree charge.”
Appellant was charged with first-degree murder for “knowingly causing] 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. 1997). The jury was instructed on first-degree murder, second-degree murder, manslaughter, and negligent homicide. She was convicted of second-degree murder, having “knowingly” caused the death of Samuel “under circumstances manifesting an extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-103(a)(1). In Byrd u State, 337 Ark. 413, 992 S.W.2d 759 (1999), our supreme court held that “causing a death under circumstances manifesting extreme indifference to the value of human life” is not an element of the charge of first-degree murder under section 5-10-102(a), and that in cases implicating these two code sections, second-degree murder is not a lesser-included offense of first-degree murder. Therefore, the State concludes that the objection was left unresolved and was waived as a point for appeal. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996).
Although the State has offered a technically sound argument, we hold that the trial court’s response to appellant’s motion for directed verdict, which found sufficient evidence to go forward on the crime charged, adequately preserved her motion on the other charges. Therefore, we will consider the sufficiency of the evidence on appeal.
A motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State, and sustains a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).
In her argument, appellant offers various purportedly exculpatory facts to be weighed against evidence presented at trial by the State. This court, however, views only the evidence that is most favorable to the jury’s verdict and does not weigh it against other conflicting proof favorable to the accused. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). The jury is permitted to consider “evidence of cover-up as proof of a purposeful mental state.” Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000); See also Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994) (holding that a defendant’s improbable explanations of incriminating circumstances are admissible as proof of guilt).
Here, the evidence was sufficient to establish that appellant knowingly caused Samuel’s death. Appellant inserted a thermometer and its three-inch cap into Samuel’s rectum with such extraordinary force that she must have known that the result could be serious injury or death. The medical testimony of the physician who examined Samuel presented evidence of maltreatment, particularly his description of the blunt force required to tear the child’s bowel, and his conclusion that this act was “not an accidental happenstance.” The autopsy studies indicated that the life-threatening injury occurred six to twenty-four hours prior to Samuel’s death, during the time in which appellant was the only care-giver of the child, and she admitted that Samuel had not left her sight during this time period. The medical examiner further testified that peritonitis is not necessarily fatal; therefore, appellant’s refusal to seek medical attention after Samuel began a steady decline in health is further evidence that she manifested an extreme indifference to the value of Samuel’s fife. Finally, appellant’s statements that she had not used a rectal thermometer on Samuel and that she misplaced her rectal thermometer months before the incident are improbable explanations of incriminating circumstances and are contrary to the physical evidence and testimony presented by the State at trial.
According to Arkansas Code Annotated § 5-2-202 (Repl. 1993), a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See, e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). The evidence was sufficient to show that appellant forcefully inserted an object into Samuel’s rectum knowing that the result could be serious injury or death. Therefore, the motion for directed verdict was properly denied.
Ill Rule 404(b)
Appellant next argues that the trial court erred in its denial of her motion in limine, based on Ark. R. Evid. 404(b), to exclude from evidence an allegation of abuse made against appellant in October of 1999. The trial court allowed testimony from Detective Shawn Juhl of the Fayetteville Police Department that he had investigated a battery committed against a three-year-old child, Chelsea Sams. The battery consisted of several bruises on the child’s buttocks and “a mark that looked like it had been made with something other than a hand.” Detective Juhl testified that after interviewing the child and the child’s grandmother he concluded that appellant had committed the battery. Appellant denied the allegation. On November 22, 1999, Juhl sent the file to the Fayetteville prosecutor’s office; however, contrary to Juhl’s recommendation, no warrant was issued. After Juhl’s testimony, the trial court issued the appropriate 404(b) instruction:
Members of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Scharel Ann Burley may not be considered to prove the character of Scharel Ann Burley in order to show that she acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that she may have nor is it to be considered to show that she acted similarly or accordingly on the day of the incident. The evidence is merely offered as evidence of motive, opportunity, intent, knowledge, absence of mistake or accident. Whether any other alleged crimes or wrongs or acts have been committed is for you to determine.
Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). Arkansas Rule of Evidence 404(b) states:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). The test for admission of prior bad acts under Rule 404(b) is whether the evidence offered has independent relevance to a fact of consequence in the case. Id. Also, there must be a degree of similarity between the prior bad act and the present crime. To be probative, the prior criminal act must require an intent similar to that required by the charged crime, Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Finally, if the evidence of a prior bad act is independently relevant to the main issue, rather than merely to prove that the defendant is a criminal, then the evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998).
Appellant asserts that the detective’s testimony should not have been admitted into evidence because (1) there is no evidence that the abuse described was a “prior bad act” of appellant, (2) the State failed to prove that the evidence was used to prove anything other than the bad character of appellant, (3) the evidence is not independently relevant, and (4) the danger of unfair prejudice substantially outweighs the probative value of the evidence. The State concedes that evidence of appellant’s prior misconduct would be inadmissible to show only that she was a bad person who should be convicted, but it contends that was not the purposes of the questioning. The conduct inquired about was admissible, the State contends, under Rule 404(b) as proof of motive, intent, preparation, or plan. Specifically, the State argues that appellant failed to seek proper medical attention for Samuel because she was the subject of an investigation of child abuse perpetrated on another child, and that seeking medical care for Samuel could result in more allegations of abuse.
First, we consider if the described abuse allegation was indeed a “bad act.” In this case the only testimony, or tangible evidence, of a prior bad act was an opinion offered by Detective Juhl. There is nothing here but an unsubstantiated allegation. Rule 404(b) cannot apply without proof of an actual act being committed. See Harper v. State, 1 Ark. App. 190, 614 S.W.2d 237 (1981). An investigator’s conclusion of wrongdoing, without anything more, does not amount to an “act” for purposes of Rule 404(b). We, therefore, hold that the trial court’s decision to allow Detective Juhl’s testimony regarding his investigation of appellant was improper. We cannot say that this testimony had no prejudicial effect. McIntosh v. State, 262 Ark. 7, 552 S.W.2d 649 (1977).
Second, we are not convinced that the evidence of appellant’s alleged misconduct, even if it amounted to an act, is relevant. Rule 404(b) requires a degree of similarity between the prior bad act and the present crime. Williams, supra. The current case involves a puncture wound to a child’s bowel, and the allegations of prior misconduct involved a single incident of bruising a child’s buttocks. If the evidence does not have a tendency to make the existence of any consequential fact more or less probable than it would be without the evidence, the evidence is not admissible under Rule 404(b). McGehee, supra. We fail to see a relationship between the two events that is strong enough to justify an independent relevance for admission.
Third, even if the evidence were relevant, it must be admissible under Rule 403, which requires that its probative value be substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. Evidence of an alleged prior bad act has litde or no probative value; therefore, any resulting unfair prejudice, tips the balance. The evidence revealed by Detective Juhl’s testimony was clearly more prejudicial than probative. We, therefore, conclude that the trial judge abused his discretion by admitting the testimony into evidence. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997).
Reversed and remanded for a new trial.
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NEAL, Judge.
A jury found appellant, Daniel Chrobak, guilty of rape, two counts of first-degree sexual abuse, and pandering or possessing visual medium depicting sexually explicit conduct involving a child. Appellant was sentenced to fifty years in the Arkansas Department of Correction. It is from this conviction that he appeals.
The events giving rise to this case began with an investigation by the New York State Attorney General’s Office into the transmission and receipt of pornographic images of children via the Internet. In February of 1998, the office focused on an organized group of pedophiles known as the “NewsGroup.” On July 27, 1998, an individual using the Internet address “[email protected]” transmitted fourteen messages containing graphic files depicting minors engaged in sexually explicit conduct to the NewsGroup. The Internet service provider, Aristotle.net, confirmed that appellant, Dan Chrobak, had reserved that Internet address.
FBI Agent Jill Hill reviewed the fourteen messages whereupon she determined that the sexually explicit conduct that was exhibited involved children under the age of sixteen. On October 27, 1998, federal agents executed a search warrant on appellant’s trailer and seized a videotape and a three-ring binder with photographs of children engaged in sexually explicit conduct. The video contained two scenes. The first scene involved appellant engaged in sexual relations with a female whose torso only was visible in the video. Based on her background and experience, Agent Hill determined that the female in the video was fourteen years of age or younger. Scene two shows a young female sleeping. In the video, appellant touches her buttocks.
The evidence was delivered to Pulaski County Detective Mark Winchester, whereupon he discovered that the young female was A.H., the daughter of K.S., appellant’s co-worker. A.H. testified that she was “pretty sure” that she is the sleeping female whose face was not shown in the photograph because she recognized the pajamas and the 3D heart underwear as those she had previously worn. She also stated that she was less than fourteen years old when the events occurred. After further investigation, appellant was arrested and charged.
On appeal, appellant alleges that (1) the evidence taken from his home should have been suppressed, and that (2) there was insufficient evidence to convict him of rape.
Sufficiency of the Evidence
Because of our consideration of prohibitions against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000); see Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Appellant argues that because the alleged victim could not positively identify herself as the person portrayed in the video and was only able to identify a pair of pajamas as resembling those she had previously worn, there was insufficient evidence to convict him of rape.
To preserve a challenge to the sufficiency of the evidence, a defendant must make a directed-verdict motion at the close of the State’s case and renew it at the close of all the evidence. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). However, when a defendant presents no evidence after a directed-verdict motion is made, further reliance on that motion is not waived. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). Here, appellant made a motion for directed verdict and a motion to dismiss at the close of the State’s case, and both motions were denied. Although the abstract fails to evidence it, appellant proceeds, for at least forty pages in the record, to address the court. However, appellant did not present any evidence after the directed-verdict motion was made; hence, reliance on the motion is proper, and we reach the merits of appellant’s argument.
Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2001). This review includes an evaluation of otherwise inadmissible evidence. Id. (citing Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984)). When reviewing the denial of a directed verdict, the appellate court‘will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict and will affirm if there is substantial evidence to support a verdict. Johnson u State, supra. Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Johnson v. State, supra.
The supreme court has held that the testimony of a rape victim satisfies the substantial-evidence requirement in a rape case. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements. Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). However, circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000); Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).
We defer to the jury’s determination on the matter of witness credibility. Johnson v. State, supra. Jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. It is within the province of the jury to accept or reject testimony as it sees fit and inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve. Id.
Here, the trial court denied all motions for a directed verdict and appellant was subsequently convicted by a jury of raping victim A.H., who was less that fourteen years of age. A person commits the offense of rape “if he engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he is physically helpless or who is less than fourteen (14) years of age.” Ark. Code Ann. § 5-14-103(a)(l)(B)(C)(i) (Supp. 2001). Deviate sexual behavior is defined as the penetration, however slight, of the labia majora or anus of one person by any body member of another person. Ark. Code Ann. § 5-14-101(l)(B) (Supp. 2001) (emphasis added). Physically helpless means that a person is unconscious or physically unable to communicate lack of consent or rendered unaware the sexual act is occurring. Ark. Code Ann. § 5-14-101 (8)(A)(i)(ii)(B) (Supp. 2001).
To determine whether the trial court erred, it is necessary to review the trial testimony. First, A.H., the victim in the case, testified that she met appellant through her mother. He was her mother’s co-worker. She testified that when she first met appellant, he was very kind and generous and acted “like he wanted to get to know me better.” They would go to the movies and go shopping. She would go over to his house and play a lot of games and he would buy her “board games and stuff.” She never remembered him taking her other sisters or brothers with them.
A.H. further testified that she would go to appellant’s trailer, and while there, she would “watch tv and spend the night there playing the computer.” Appellant would give her something to eat and drink, usually “for breakfast like eggs and bacon and toast and during lunch probably a sandwich and a coke.” When asked whether she ever noticed anything unusual about the coke that he gave her, A.H. responded that “like the coke when you first drink it... it [tastes] fresh and it has a fizz to it, and later on when I came back from the bathroom and it didn’t have a fizz to it. It tasted not like a coke. I drank it anyway. It happened more than once.”
In addition to the foregoing, A.H. stated that appellant touched her “like at nighttime.” When she was staying the night and watching television,
I rolled over on my chest and he was at the headboard and he started touching me on the vagina area and with his foot, and rubbing back and forth, and asked me if it felt good and then he rolled me over on my chest and started feeling all over my chest. He used his hands to feel on my chest. And he was saying does it feel good. We were on the waterbed. He had touched me earlier that day. I was on the computer earlier that day, and I was playing games, and he come up behind me and started rubbing on my chest with his hands. ... He was like rubbing in a circular motion. . . . Both times, I told him to stop and leave me alone. . . . He tried to penetrate me with his penis.
He took his penis out of his pants and I saw it. He did not say anything to me while he was doing that. It made me feel scared and I told my sister. I did not tell my mom because I was scared of what she was going to do to me. I thought I was going to get in trouble. . . .
I recognize his bed. It is in his living room. That is the table we used to sit at and eat sometimes when playing the Ouija board at that table. I recognize the red stripedy [s/c] cover. I used to sleep with it all the time and be covered up in it. That is where I would sleep when I stayed the night over there. The defendant would sleep on the opposite side of the same waterbed.
From the photo, I recognize my pajamas and my underwear. The underwear are white with 3D hearts on them. My grandma gave me the pajamas for my birthday and I wore them every night. I did wear them over at the defendant’s trailer. I remember doing that. I don’t remember being taped on a video camera. The police did find a videotape, but I have never seen that videotape.
On cross examination, A.H. testified that she was “pretty sure” that she is the person depicted in a photograph. She could not see her face, but she was “pretty sure” that it was her. She further testified that the coke made her “very sleepy.”
Appellant’s mother, K.S., testified for the State. She testified that she had five children, and appellant, her co-worker, lived in the neighborhood. He would offer to come over and cut grass. “He offered to take one of my daughters because he has a niece her age to movies, bowling, skating, just different things, go carting. That was my daughter A.H. and he did not express a lot of interest in my other four children.” She further stated that she allowed her daughter to spend the night at his trailer. She spent the night over there “thirty times in a year and a half. I never had any reason to think that I was not to trust him.”
When shown a picture, K.S. testified that
that’s my daughter sleeping. I believe I saw [the photograph] when Detective Winchester showed it to me to identify my daughter and that is my daughter in that photograph. She looks about eight years old in that picture. Those are her pajamas that her grandmother had given her maybe for her sixth birthday. Those are her underwear also. They are white with designs on them, looks like hearts, pink, blue, and yellow.
I do recall her owning that pair of underwear. She was probably eight years old when she wore that underwear and the same age when the pajamas fit her. She outgrew them and I gave them to Detective Winchester. Those are the pajamas. . . . She also outgrew the panties, but we threw those away.
Detective Winchester testified that when he saw the tape, the first thing he set out to do was “identify the victim.” He obtained information from a witness, H.I., appellant’s girlfriend. Based on the information she gave him, he was able to locate A.H. He further testified that
H.I. took me out to the residence where [the victim] used to live. And then I was able to do some research and find out who used to five there. I made contact with her mother, the victim’s mother, K.S. I showed her a still photo taken from that video to have her identify her daughter. ... I showed her actual pictures taken from that tape. . . . After showing her those photographs, I received an item of clothing from A.H.’s mother. They were the pajamas that appeared to be the same as in the still photographs.
The jury was shown the video. The first scene in the video depicted a very disturbing picture of the appellant and a sleeping or otherwise unconscious young female. The female’s face is not apparent from the video, however, she is wearing white pajamas with pink polka dots on them and colorful 3D heart underwear. She does not move in the scene, but only flinches once when appellant is shown engaging in deviate-sexual behavior. Appellant is shown touching the labia majora of the female with his hand. He is also shown moving the pajamas and underwear to the side and penetrating her labia majora with his tongue. He then proceeds to penetrate the labia majora of the female with his penis.
As previously evidenced, victim A.H. testified that she owned pajamas with pink polka dots on them and colorful 3D heart underwear and wore them on some occasions at appellant’s home. She further testified that appellant often gave her cokes that, after she returned from the bathroom, did not have a “fizz” to them and made her sleepy. She further testified that on several occasions, appellant had touched her chest with his hands and showed his penis to her and tried to penetrate her. She also testified that while at the opposite end of the bed as appellant, he took his foot and touched her vaginal area “rubbing back and forth.”
Her mother K.S. testified that A.H. owned pajamas and underwear as described. The pajamas were given to a younger sibling of A.H. and the underwear were discarded. She relinquished the pajamas to Detective Winchester. Detective Winchester gave testimony that he received an item of clothing from A.H.’s mother that appeared to be the same as those shown in the video.
The foregoing testimony along with the video seized from appellant’s home was presented to the jury. After reviewing the evidence in the fight most favorable to the State, we have determined that there was substantial evidence to support appellant’s conviction. Specifically, we hold that there was enough circumstantial evidence that was forceful enough to compel reasonable minds to reach a conclusion consistent with appellant’s guilt and inconsistent with any other reasonable conclusion. The victim testified that appellant had, in previous instances, inappropriately touched her chest and vagina and attempted to penetrate her. We defer to the reasonable inferences of the jury who found enough circumstantial evidence to convict appellant of rape. Accordingly, the trial court’s denial of appellant’s motion for directed verdict is affirmed.
Motion to Suppress
Appellant next contends the trial court erred in denying his motion to suppress the evidence taken from his residence. He alleges that there was no reasonable cause to believe that Chrobak was the person who sent the images from a computer located in his mobile home because (1) FBI Special Agent Jill Hill, in her affidavit and testimony, stated that she did not know if the person who registered the Internet address “[email protected]” with Aristotle.net was appellant, and because (2) she did not present any evidence that the computer appellant allegedly used to transmit the pornographic images was located in the mobile home that was searched in October of 1998. Additionally, appellant alleges that there were no reports indicating that appellant transmitted or received pornographic images on occasions other than in July of 1998, and that this single transmission, ninety days before the search, was insufficient to establish probable cause to believe contraband was located in appellant’s mobile home. We find appellant’s arguments unpersuasive.
In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and reverse only if the ruling is clearly against the preponderance of the evidence. Johnson v. State, supra.
The Fourth Amendment to the United States Constitution protects citizens against unreasonable search and seizure. It requires an issuing magistrate to
simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001) (citing Illinois v. Gates, 462 U.S. 213 (1983)).
On October 26, 1998, FBI Agent Hill swore out an affidavit for a search warrant for appellant’s mobile home at 4629G Old Tom Box Road in Jacksonville, Arkansas, wherein she stated that pursuant to a federal grand jury subpoena, law • enforcement officers learned that the account holder of [email protected] was appellant. Hill testified that her job requires her to execute search warrants based on leads she receives from undercover agents who have gone online in an undercover capacity and have filmed people that are trafficking in child pornography over the Internet. That is what happened in this case.
In the affidavit for the search warrant, Hill stated that through her training, experience, and consultations with other law enforcement officers, she was “aware that individuals involved in the sexual exploitation of children through child pornography almost always keep copies of their sexually explicit materials, especially when they are used in the seduction of children.” Hill further stated that due to the protection of passwords and other security devices, the “use of a computer to traffic, trade, and collect child pornography and hardcore sexually explicit pornography is a growing phenomenon,” and that individuals involved in the collection and distribution of child pornography almost always maintain and possess their materials in a secure place, most often a residence, to avoid detection by law enforcement. Given her expertise, Hill believed that probable cause existed that computers and computer-related equipment, records and related documents pertaining to the production, receipt, transportation, possession, and distribution of child pornography were located within appellant’s mobile home. The United States magistrate judge found that probable cause existed and issued the warrant. Our duty as the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed, and in the case at hand, there was a substantial basis for the magistrate to reach that conclusion. See Wyatt, supra.
Citing White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994), appellant also alleges that the information in the affidavit was stale, thus diminishing probable cause because (1) the information on him came from the New York Attorney General’s Office, who intercepted four images from [email protected] on July 27, 1998, and (2) the search warrant was not applied for until late October of 1998. White v. State, supra. However, the delay is not considered separately. Rather, the length of the delay is considered together with the nature of the unlawful activity and in the light of common sense. Id. (citing Cardozo v. State, 7 Ark. App. 219, 646 S.W.2d 705 (1983)).
Although not binding on this court, we find the decision of the Eighth Circuit Court of Appeals in United States v. Rugh, 968 F.2d (8th Cir. 1992) to be highly persuasive. In Rugh, the court stated that the delay in executing a search warrant does not always make probable cause fatally stale. Other factors must also be considered, including the nature of the criminal activity involved and the kind of property subject to search. Id. In that case, the court ultimately held that the continuous nature of an ongoing child-pornography ring and the tendency of pedophiles to retain child pornography for a long period of time minimized the lapse of time between information in the affidavit and the execution of a search warrant.
Here, Hill stated that based on her experience, individuals who trade in child pornography “almost always” keep copies of their materials. The New York State Attorney General’s Office intercepted the images transferred on July 27, 1998. It was later determined that the address from which the photos were sent belonged to an individual in Arkansas. Common sense tells us that the information would be disseminated to Arkansas officials and that these officials would not act hastily, but instead conduct their own investigation before proceeding further.
Even if it was determined that probable cause was diminished by the length of time between the New York Attorney General’s interception of the pornographic images in July of 1998 and the issuance of a search warrant in late October of 1998, we would affirm the denial of appellant’s motion to suppress on the good-faith exception to the exclusionary rule. The United States Supreme Court, in United States v. Leon, 468 U.S. 897 (1984), noted that the basis for the exclusionary rule was not “to deter objectively reasonable law enforcement activity.” The Court went further to state:
even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. “The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” (Citation omitted.)
“If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” (Citations omitted.) In short, where the officer’s conduct is objectively reasonable, “excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.” (Citation omitted.) This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. “Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.”
468 U.S. 897 at 919-921 (1984) (citations omitted).
Here, the magistrate operated with full knowledge that the New York State Attorney General’s Office intercepted the images on July 27, 1998, as Agent Hill’s affidavit so stated. Thus, the magistrate was well aware of the circumstances when he issued the warrant in October of 1998. It was the magistrate’s responsibility to determine whether Agent Hill’s allegations established probable cause, and we find that the magistrate had a substantial basis for concluding that probable cause existed. The officers conducted a search incident to the execution of that warrant; therefore, any evidence the officers seized became the fruits of a seemingly valid search warrant.
We affirm.
Vaught, J., agrees.
Pittman, J., concurs. | [
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Andree Layton Roaf, Judge.
This case involves the trial court’s denial of a petition to probate an instrument as the holographic will of Oral W. Fountain. Sharon Kay Edmondston, Mrs. Fountain’s daughter, appeals. Ms. Edmondston argues that the trial court erred because the decedent clearly intended that the instrument she wrote be her last will. We agree, and reverse and remand.
The instrument at issue in this case, a copy of which is attached to this opinion as an Appendix, was written entirely by the decedent, Mrs. Oral W. Fountain, and was signed by her and by two witnesses at her request. The instrument was prepared in January 1997. Mrs. Fountain died in April 1998, and her estate was initially probated as intestate in 1998. Mrs. Fountain was survived by five adult children, all of whom are listed in the instrument at issue in this case, with the majority of her estate going to Ms. Edmondston, who lived next door to her and continued helping her after the other children moved away. When Ms. Edmondston discovered the will in June 1999 and sought to admit it to probate, the other children filed an objection, contending that the document was not in their mother’s handwriting.
At trial, numerous witnesses testified, including family members and handwriting experts. Verlin Harris, Mrs. Fountain’s sister, testified that she and Mrs. Fountain spoke on the phone every night. Ms. Harris stated that in April during one of their conversations, she told her sister that she had a will. According to Ms. Harris, Mrs. Fountain responded that she too had a will. Ms. Harris testified that she explained to Mrs. Fountain the importance of writing a will and having two witnesses sign it. She also explained that a lawyer said that she could write her own will if she had two witnesses sign it. Ms. Harris testified that Mrs. Fountain again stated that she had a will.
Ricky Smithson and Justin Veach McAlister were the witnesses who signed Mrs. Fountain’s will. Smithson referred to Fountain as “Granny,” and testified that he had known her since he was four or five years old. He stated that when he arrived at her house, she asked him for a favor. She then went in, returned with a piece of paper, and asked the men to sign it. Smithson said he read it and it appeared to be a will, and that he thought he was signing a will. McAlister testified similarly at a deposition. He also stated that the instrument appeared to be a will and that he signed it. He identified the instrument presented during the deposition as the same document he recalled signing at Mrs. Fountain’s request.
The trial court found that the will was in Oral W. Fountain’s handwriting and that the signature on the instrument was Mrs. Fountain’s. The court held, however, that the instrument could not be admitted to probate because it lacked testamentary intent. Specifically, the trial court found “no testamentary language whatsoever within the instrument.” The court found that the instrument contained no dispositive wording and was thus defec tive on its face because it lacked testamentary intent. The court denied Ms. Edmondston’s petition to probate, and she appeals.
On appeal, Ms. Edmondston argues that Mrs. Fountain clearly intended the instrument to be her will, and that the trial court erred in denying admission to probate because it lacked testamentary language. She contends that Mrs. Fountain’s intent could not have been more clear and that testamentary language should not be the sine qua non when such intent is clear. In this regard, the supreme court has held that intent of the maker is the primary consideration in determining the validity of a will:
The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however, irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and, if this appears to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.
Chambers v. Younce, 240 Ark. 428, 431, 399 S.W.2d 655, 657 (1966) (quoting Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906)). Thus, no matter the form, if an instrument discloses the intent of the testator with regard to her property, then the instrument is a will. The Chambers court cited a number of cases in support of the proposition that a valid will may take many forms. Chambers, 240 Ark. at 431-32, 399 S.W.2d at 657.
Testamentary intent is necessary to the validity of a holographic will. Chambers, 240 Ark. at 430, 399 S.W.2d at 657. No particular words, however, are necessary. “Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt.” Id. (Emphasis in original). Customarily, Arkansas courts have admitted extrinsic evidence testimony to establish testamentary intent. Id. 240 Ark. at 430-31, 399 S.W.2d at 657.
In Chambers, the decedent’s wife sought to probate an alleged holographic will. On the back of a blank check, the decedent wrote, “I Boyd Ruff request that all I own in the way of personal or real estate property to be my wife Modene.” 240 Ark. at 429, 399 S.W.2d at 656. The check was admitted into probate, and the decedent’s sister challenged the order. Noting that the appellant did not dispute that the instrument was in the decedent’s handwriting, the Chambers court held that the blank check was properly admitted as a holographic will. Concluding that there was testamentary intent, the court stated that there was evidence that the decedent was sincerely attached to his wife. Further, the language of the note, written under impending death, was testamentary in character.
Here, however, the validity of Mrs. Fountain’s will turns on the narrower issue of whether words of a testamentary nature are absolutely required by our case law for the instrument to be admitted to probate. Ms. Edmondston argues that they are not, while the appellee contends that the trial court was correct in finding that they are required. In its order, the trial court relied primarily on two cases in finding that testamentary language is required, Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991) and In the Matter of Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991). Ms. Edmondston argues that these authorities are distinguishable factually from her case and do not compel the court to place words or “verbs” of a dispositive nature above the clear intent of the decedent as evidenced by the instrument itself and the admitted extrinsic evidence. We agree.
In Dunn v. Means, supra, the appellant sought to probate her mother’s holographic will as the will of Claude Rogers, an unmarried man who lived with appellant’s mother. The will had the following notation appended beneath her mother’s signature: “Judee Dunn — Claude & I give you full power to do & take care of all our Business & do as you wish with, with it, with no problems from anyone. You can sell or dispose of all property & monies.” 304 Ark. at 474, 803 S.W. at 542. Appellant’s mother, Mr. Rogers, and two witnesses signed this notation. The supreme court affirmed the denial of probate, stating:
Further, where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent.
In this case, we find no testamentary intent whatsoever within the passage that Ms. Dunn claims to be the will of Mr. Rogers. Certainly, it cannot be said that this instrument’s expressions are so clearly stated that, without inference, no mistake can be made as to the existence of testamentary intention.
Dunn, 304 Ark. at 475-76, 803 S.W.2d at 543. In Dunn, the court clearly found that the wording used did not evidence testamentary intent, not that such words were completely absent, as there were two complete sentences purporting to address the disposition of Rogers’ estate. In the case relied on by the Dunn court, McDonald v. Petty, 262 Ark. 517, 518, 559 S.W.2d 1, 1 (1977), the supreme court did state that “since the document sets forth no words of a dispositive nature, it was defective on its face because it lacked the required animus testandi or intent to make a will,” and that extrinsic evidence was thereafter not admissible to prove intent. However, the court described the instrument in question, although signed and dated, as “merely a sketch or drawing on the back of a used envelope with names in individual squares,” and stated that there was “absolutely nothing indicating an intent that this instrument serve as a testamentary disposition” of the property. Id. at 519, 559 S.W.2d at 2. Here, the carefully written instrument prepared by Mrs. Fountain, and captioned “Last Will,” obviously bears no resemblance to such a drawing, and there is evidence of her intent by the caption she used.
The second case primarily relied upon by the trial court, Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991), while closer factually to the case before us, is likewise distinguishable. O’Donnell also involved a handwritten listing of names and items of property without dispositive language, that was signed, dated and bore the words “Last Will & Testament.” 304 Ark. at 463, 803 S.W.2d at 531. However, it was not witnessed and the decedent had given the list to his lawyer to prepare a will, but died before executing the typewritten instrument prepared by the lawyer. The trial court set forth the following factors in denying the instrument’s admission to probate:
Factors Favoring Holographic Instrument as Will
1) Montgomery told decedent what to do, and he hands it to Montgomery saying, “Here it is.”
2) Decedent’s habit as acting in cursory and abbreviated way.
3) Instrument signed and dated.
4) Instrument has “Last Will and Testament.”
5) Decedent never told wife he had a 1979 will.
6) Decedent never told wife he revoked 1979 will.
7) Decedent never told wife home just in his name.
Factors Indicating Holographic Instrument Not a Will
1) So brief, perfunctory, truncated and cursory as to be meaningless.
2) Written part in pen, part in pencil — seems to be on scratch paper.
3) Strikeovers.
4) No real urgency or hurry in getting a willBnot sick.
5) All property not disposed of.
6) Shelton said Montgomery called it a list, until some 10 days later.
7) Decedent knew Montgomery going to make a written will.
8) Decedent showed typewritten will to his wife, but did not tell her he had a handwritten will.
9) Discussed with wife in detail the provisions of typewritten will.
10) Has no words of a dispositive nature.
11) Wife’s name not mentioned.
Id., 803 S.W.2d at 531-32. (Emphasis added.) The trial court further stated that the “court’s mind must be settled as to the writer’s testamentary intent,” and that “[t]he document itself, along with all the attending circumstances, must overcome all doubt about testamentary intent.” Id. at 464, 803 S.W.2d at 532. The supreme court agreed with the reasoning of the probate judge, found that it was within the framework of the applicable law, and recited the factors listed by the trial court in affirming the denial of admission to probate. In this regard, the trial court clearly considered much extrinsic evidence in reaching its decision, and the lack of words of a testamentary or dispositive nature was merely one of eleven adverse factors recited. This case does not stand for the proposition that the lack of such language, standing alone, will be fatal to a holographic will on the issue of testamentary intent. Accordingly, we agree that these authorities do not constitute a basis for denial of the admission to probate of Mrs. Fountain’s will, or for the exclusion of extrinsic evidence of her intent, and reverse and remand with directions to admit the will to probate.
Reversed and remanded.
Neal, J., agrees.
Stroud, C.J., concurs.
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Terry Crabtree, Judge.
Appellant Angela Olsen’s contract as the principal of appellee East End School District’s high school for the 2000-2001 school year was not renewed. The Perry County Circuit Court upheld the District’s decision not to renew appellant’s contract. We affirm.
Appellant was the principal of East End High School during the 1999-2000 school year. Her contract for the 2000-2001 school year was not renewed based upon the recommendation of the superintendent, Douglas Adams. Adams sent appellant a letter on April 15, 2000, stating that he intended to recommend to the school board that they not renew appellant’s contract because he was recommending that the school district reorganize from three schools, a high school, a middle school, and a kindergarten and elementary school, into a two-school district. This would leave the District with one extra principal, and appellant was the most recently hired. Appellant requested a hearing before the school board. The board voted four to one to accept Adams’s recommendation not to renew appellant’s contract.
Appellant challenged the District’s action by filing a “Petition for Writ of Mandamus and Complaint” under the Teacher Fair Dismissal Act (TFDA), Ark. Code Ann. §§ 6-17-1501 through 6-17-1510 (1999). The petition alleged that the District breached its contract with appellant by violating the TFDA and that such breach entitled appellant to all of the monetary benefits that she had under the 1999-2000 contract, plus interest and attorney’s fees. Appellees answered and denied the allegations in appellant’s petition.
Douglas Adams, the superintendent, testified that he sent a letter to appellant on April 15, 2000, stating that appellant’s contract would not be renewed for the 2000-2001 school year because he was going to recommend a reorganization of the school district and that appellant was the principal with the least amount of service. He also stated that, at that time, there was no seniority-based reduction-in-force policy and that no such proposal had been placed before the school board.
Adams admitted that appellant’s performance was not a factor in his decision to recommend that appellant not be renewed. He stated that his decision was based on the fact that the other two principals had been with the District in administrative capacities for over fifteen years and that they were doing good jobs. He explained that he made notes evaluating the principals throughout the year, noting whether there had been improvement or areas that needed improvement. He also said that, in February 2000, he requested identical information from each principal in order to complete the evaluations. He also testified that he told the principals that the decision whether to renew his own contract was being tabled until after the principals had been evaluated. He stated that appellant indicated that she had completed only six or seven of the seventeen teacher evaluations in February and was in no position to be evaluated at that time.
Adams testified that he began thinking about restructuring the District in January because the District was losing students and, thus, state funding. He stated that state standards required one principal for 300 students and that the District had 305 students in grades seven through twelve. He stated that the issue was discussed with the principals in one of the weekly administrators’ meetings. He also stated that he asked appellant and the other principals to be involved in scheduling for the 2000-2001 school year so that he would be prepared if the board accepted the restructuring recommendation or retained the current configuration. He said that the nonrenewal decision was not based on the grievances appellant filed. He also stated that the restructuring decision was a financial one. He also stated that the board acted on his recommendation to restructure in June 2000.
Appellant testified that she was hired in 1999 to be the high school principal. She was certified as a principal, as well as for superintendent and curriculum specialist, based upon her having a master’s degree and additional hours. She stated that the April 15, 2000, letter from Adams was the first written indication that her contract would not be renewed but that there had been other indications that her employment was in jeopardy. She testified that she had a “bumpy” relationship with Adam's, resulting from, among other things, disagreements over her spending authority, Adams’s decision not to expel a student who had threatened appellant, and a parent whom Adams had hired to be appellant’s secretary. She stated that she received many memos from Adams, some of which she considered trivial and others she considered professionally threatening. Appellant testified that another source of friction between herself and Adams was whether she was a probationary employee. She said that the other principals were evaluated and had their contracts renewed in February but that she was not evaluated and renewed at the same time. She testified that the reason given for her not being evaluated in February was that not all of the high school teachers had been evaluated but that this requirement had not been communicated to her. Appellant stated that she believed that the reorganization was a pretext for the nonrenewal of her contract.
On cross-examination, appellant testified that the April 15 letter from Adams did not mention her performance as a reason for nonrenewal. She testified that she heard rumors concerning restructuring in March and asked Adams about them, stating that, if true, one principal would be without a position. She testified that Adams told her that they were merely rumors and that he did not know what would happen. '
The trial court found that the District was not required to have a reduction-in-force policy; that, because no reduction-in- force policy exists, it could not be incorporated into appellant’s contract; and that the decision not to renew appellant’s contract was not arbitrary and capricious. This appeal followed.
Appellant raises three points on appeal: that the District’s amendment of its personnel policies violated the TFDA, and the nonrenewal of appellant’s contract was void; that the future possibility of reorganization of the school structure and future adoption of a reduction-in-force policy are not “facts” that can support a nonrenewal under the TFDA; that the District did not strictly comply with its own policies regarding the date for employing principals, and the nonrenewal of appellant’s contract was void.
The standard of review in cases under the TFDA is limited to whether the trial court’s decision is clearly erroneous. Junction City Sch. Dist. v. Alphin, 56 Ark. App. 61, 938 S.W.2d 239 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the firm conviction that a mistake has been made. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). The question of whether or not a school district has strictly complied is a question of law. Jackson v. El Dorado Sch. Dist., 74 Ark. App. 433, 48 S.W.3d 588 (2001). A trial court’s conclusions on a question of law will be given no weight on appeal. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000).
In her first point, appellant argues that the district illegally amended its personnel policies to adopt a seniority-based reduction-in-force policy and that this illegal procedure thereby voids the decision not to renew her contract. In Ark. Code Ann. § 6-17-1503, the General Assembly laid out the construction of the statutory scheme, noting that:
This subchapter is not a teacher tenure law in that it does not confer lifetime appointment nor prevent discharge of teachers for any cause which is not arbitrary, capricious, or discretionary. A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.
(Emphasis added.) Furthermore, section 6-17-1506 notes that a teacher’s contract can be renewed automatically “unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract, not be renewed....” Finally, if a teacher has been notified that his contract will not be renewed, that teacher can file a written request for a hearing with the school board. Ark. Code Ann. § 6-17-1509(a). Upon receipt of that request, the school board must grant a hearing no sooner than five days nor more than ten days after the request has been served, unless the teacher and board mutually agree in writing to postpone the hearing to a later date. Ark. Code Ann. § 6-17-1509(c)(1). Under the TFDA, nonrenewal of a contract is void unless procedures are'strictly followed. Ark. Code Ann. § 6-17-1503; Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).
Appellant concedes that the District is not required to have a reduction-in-force policy in place. Further, we believe that Adams’s April 15 letter was not actually a statement that appellant’s contract was not being renewed based on a reduction-in-force policy. Rather, we believe that the April 15 letter was more of an explanation why the contract was not being renewed. Section 6-17-1506(b)(2)(B) requires that the notice of nonrenewal contain a statement of the reason so that the teacher can prepare a defense. The decision to terminate a teacher pursuant to the TFDA is a matter within the discretion of the school board, and the reviewing court cannot substitute its opinion for that of the school board in the absence of an abuse of that discretion. Helena-West Helena Sch. Dist. v. Davis, 40 Ark. App. 161, 843 S.W.2d 873 (1992). We cannot say that the trial court’s finding that the district was not required to have a reduction-in-force policy in place is clearly erroneous.
In her second point, appellant argues that the future possibility of school reorganization and the possibility of adoption of a reduction-in-force policy cannot support a nonrenewal of her contract under the TFDA. Appellant’s argument appears to be that, because the District had not been reorganized prior to her nonrenewal, the reorganization cannot be a factor in the decision not to renew her contract. Appellant admits that the decision to reorganize the District was made in the 1999-2000 school year, after the decision had been made not to renew her contract. The parties read Spainhour v. Dover School District, 331 Ark. 53, 958 S.W.2d 528 (1998), as requiring that a school board not have any preconceived notions when deciding whether or not to renew a teacher’s contract. However, we do not interpret the case that way.
In Spainhour, the superintendent sent a letter on April 12, stating that he was recommending that the teacher’s contract not be renewed because of possible loss of federal funds and that he intended to present the matter to the school board at its May 9 meeting, which was less than thirty days after receipt of the nonrenewal recommendation. The board held its meeting on May 9 as scheduled and decided not to renew Spainhour’s contract. Spainhour timely requested a hearing by letter dated May 12, 1994, but the board did not conduct that hearing until May 18, 1994, after it had already accepted the superintendent’s recommendation not to renew Spainhour’s contract. The supreme court held that the Dover School District failed to strictly comply with section 6-17-1509 by failing to give Spainhour a hearing before it voted not to renew her contract. The court also stated that the second hearing appeared to comply with the TFDA because the attorneys asked the board members before the second hearing whether they could be fair and impartial and keep an open mind. We believe that a plan to reorganize a district and eliminate positions is not the same as directly voting whether to renew a specific teacher’s contract. We affirm on this point.
In her third point, appellant argues that the District did not strictly comply with its own policies regarding the date for employing principals and that the n'onrenewal of appellant’s contract was void. The District had a policy stating that the “selection” of principals will take place at the February board meeting. Under Ark. Code Ann. § 6-17-204(a) (1999), the provisions of the District’s personnel policies were incorporated into appellant’s contract and appellant was entitled to rely on those provisions. Junction City Sch. Dist. v. Alphin, supra. Appellant argues that this had the effect of requiring the District to make its decision on nonrenewal of principals earlier than the May 1 deadline provided in Ark. Code Ann. § 6-17-1506. Appellant’s argument continues that the District failed to comply with its own February deadline, rendering the decision not to renew her contract void under Ark. Code Ann. § 6-17-1503.
Appellant raised this issue below, and the question was litigated at trial. However, the trial court did not specifically rule on this point. Our courts have repeatedly held that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal. See, e.g., Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). This rule applies with equal force in cases brought under the TFDA as appealed from circuit court. See Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998). Accordingly, we are precluded from reviewing this issue on appeal.
Affirmed.
Bird and Griffen, JJ., agree.
The individual appellees are the members of the school board who voted in favor of appellant’s nonrenewal.
The Arkansas General Assembly amendedArk. Code Ann. § 6-17-1503 inAct 1739 of2001 to require only “substantial compliance” with theTFDA.The version of the TFDA in effect at the time of the nonrenewal of appellant’s contract governs the action. Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001). | [
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John B. Robbins, Judge.
Appellant American Transportation Corporation (AmTran) appeals from a judgment awarding appellee Exchange Capital (Exchange), as assignee of two trucking companies, $76,846.04 for unpaid invoices, some of which were fraudulently created by the trucking companies. We reverse and remand.
AmTran operated a manufacturing plant in Conway, Arkansas, and engaged AFS Logistics, Inc. (AFS), under a logistics management contract, to handle all transportation of parts and materials to and from its plant. From time to time, AFS chose Thunder Transport, Inc. (Thunder), or Lightning Transportation (Lightning), to provide these trucking services. Exchange had entered into factoring contracts whereby it advanced funds to Thunder and Lightning in exchange for assignment of accounts receivable, plus a fee from the payments collected. The accounts receivable were to be evidenced by original invoices and standard shipping documents, such as bills of lading. John Coffey testified that appellee advanced eighty-five percent of each invoice. Exchange’s practice was to review and accept these invoices, advance funds to Thunder or Lightning, then forward the invoices to AFS, eventually receiving a check from AFS in payment of the accounts.
Unbeknownst to the parties before August 1999, Thunder and Lighting were using a scheme whereby the trucking companies would use altered or duplicate backup documents to obtain multiple payments for the same load of freight. Jill Fagan, former director of accounting and order services for AmTran, testified that, in August 1999, she noticed that AmTran’s transportation costs were running higher than expected, which prompted an investigation. As part of the investigation, she and employees under her supervision reviewed all of Thunder and Lightning invoices and the attached bills of lading. Upon discovery of the fraud, AmTran and AFS ceased making payments to Exchange.
Exchange sued AmTran and AFS seeking $90,407.11 for Thunder’s unpaid accounts receivable. AmTran answered, denying that it was indebted to appellee and affirmatively pleading that Thunder’s fraud barred collection against these invoices. AmTran filed a counterclaim against Exchange for restitution of payments made against the fraudulent invoices. AmTran also asserted a cross-claim against AFS seeking indemnification for any judgment entered against AmTran. Exchange denied the allegations of the counterclaim. In addition, AmTran filed suit against Thunder and Lightning for fraud and against AFS for failure to detect or prevent the fraud. Prior to trial, AmTran and AFS settled their dispute.
At trial, Exchange introduced its list of unpaid invoices, totaling $90,407.11, as proof of its contract damages. John Coffey testified that Exchange always dealt with AFS, not AmTran, and that AFS always considered a receipt or signature as proof of delivery. He also testified that AFS would sometimes accept a duplicate bill of lading instead of an original. He also testified that Exchange’s contract with its factoring clients required the client to submit original invoices and documentation to Exchange and that Exchange’s personnel used due diligence to determine whether the supporting documentation was proper. Coffey also said that Exchange did not advance funds on every invoice submitted by Thunder or Lightning and that Exchange looked to AFS’s creditworthiness in determining whether to advance funds to Thunder or Lightning. He testified that the total amount advanced was $74,679.15.
Jill Fagan explained that AFS received and reviewed these invoices before sending AmTran a weekly statement of the aggregate amount of the transportation charges of various companies. The statement consisted of a summary of the companies that had transported materials, a reference to the invoice number relating to the particular shipment, and the total amount due to each of the companies. The summary statement typically was accompanied by a stack of backup documentation consisting of invoices and supporting documents. Each week, AmTran made one payment to AFS based on the summary statement and AFS distributed payment to the transportation companies it had selected. Fagan testified as to several examples of invoices that she identified as having altered or duplicative supporting documents. She testified that she prepared a spreadsheet showing invoice numbers, dates of purported delivery, and the identification of the altered and original bills of lading attached to the invoices. In compiling the spreadsheet, she testified that she identified as fraudulent only those invoices with altered or duplicative bills of lading or backup documents attached. Fagan testified that the spreadsheet also identified each of the fraudulent invoices, which together totaled $272,494.56 and included some invoices for which Exchange had not been paid. Fagan also testified that she cross-referenced her spreadsheet with Exchange’s list of open invoices and determined that $30,968.80 of the $90,407.11 in invoices sued upon were fraudulent. She calculated that AmTran had $145,717.95 worth of fraudulent invoices that it had either paid or were still open, which exceeds the amount sued upon. She stated that AmTran did not receive the goods that were listed on the fraudulent invoices and that there were possibly other duplicate invoices that AmTran did not discover. Fagan also testified that the duplicate invoices included those submitted by Lightning prior to termination of its relationship with Exchange.
The trial court found that it was obvious that Thunder and Lightning were using false and fraudulent invoices and bills of lading to obtain advances from appellee and that appellant, appel-lee, and AFS all were at fault to some degree. The trial court relied on the supreme court’s decision in Benton State Bank v. Warren, 263 Ark. 1, 562 S.W.2d 74 (1978), and concluded that appellant and AFS were in the best position to detect the fraudulent scheme by Thunder and Lightning and awarded appellee judgment in the sum of $76,846.04 and attorney’s fees of $7,500. The $76,846.04 represented 85% of the $90,407.11 in open-account invoices sued for by appellee. Judgment was entered, and AmTran appeals.
Appellant argues two points on appeal: (1) the trial court failed to properly apply Ark. Code Ann. § 4-9-318 and allowed appellee to recover in a situation where its assignor would not be able to recover; (2) the trial court erred in awarding appellee its attorney’s fees. Appellant concedes that its argument on the second point is contingent upon its prevailing on its first point. Therefore, we address the two points as one.
The standard that we apply when reviewing a judgment entered by a circuit court after a bench trial is well established. We do not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). However, a trial court’s conclusion of law is not entitled to the same deference. See Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999).
Benton State Bank was correctly considered by the trial court in resolving AmTran’s counterclaim against Exchange (which is not appealed from) but is distinguishable from the present case (Exchange’s action as assignee to recover under the contract). In Benton State Bank, the issue was which party, as between Warren (the owner/general contractor) and the bank, should bear the loss paid by Warren and caused by the subcontractor’s failure to pay the suppliers. In the present case, the question is whether appellee, as assignee of Thunder, in bringing suit against appellant and AFS on the contract between Thunder and AFS, is subject to the defense of fraud to the same extent as Thunder would be had it brought suit.
In Benton State Bank v. Warren, supra, unpaid suppliers of building materials sued the subcontractor and the owners/general contractor for money due them. The owners had made progress payments, intended to pay for materials, jointly to the subcontractor and his assignee bank. The bank credited the money received against its outstanding loans to the subcontractor. The progress payments were made on the basis of false certifications by the subcontractor that all previous bills for labor and materials had been paid. The owners were ultimately required to pay for the labor and materials a second time when the subcontractor finally defaulted. The question presented to the court was whether the losses involved should be borne by the owners or by the bank or, in other words, whether the owners were entitled to recover their earlier payments to the bank. The supreme court found that the critical factor was the relative degree of fault of the parties. It held that, although the owners had been remiss in not verifying payment of the subcontractor’s bills, the bank/assignee had ample reason to suspect that it was receiving payments that should have been used to pay for materials. The bank bore the greater fault and, consequently, the risk ofloss. The bank was, therefore, required to reimburse the owners/general contractor for the amount paid to satisfy the subcontractor’s suppliers.
Appellee’s reliance on Michelin Tires (Canada) Ltd. v. First National Bank, 666 F.2d 673 (1st Cir. 1981), and Irrigation Association v. First National Bank, 773 S.W.2d 346 (Tex. App. 1989), is misplaced because those cases involved account debtors seeking affirmatively to recover the payments made to an assignee, which is more akin to appellant’s counterclaim against appellee than appellee’s claim against appellant and AFS. Appellant has specifically stated in its brief that it is not appealing the judgment against it on its counterclaim. Michelin Tires relied in part on Justice Byrd’s dissenting opinion in Benton State Bank and held that the account debtor could not recover on an affirmative claim. In this regard, Michelin Tires is contrary to Arkansas law as expressed by Benton State Bank. Both Michelin Tires and Benton State Bank are restitution cases where the account debtor was seeking to recover payments made to the assignee, not cases where the assignee is bringing suit on the contract as is the present case. See James J. White et al., Uniform Commercial Code § 34-6 at 370 (5th ed. 2001). As such, it was appropriate for the trial court to balance the equities in deciding whether to award restitution. See Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979).
The trial court stopped its analysis with Benton State Bank, Michelin Tires, and Irrigation Association; this was error because a different body of law governed Exchange’s claim as Thunder’s assignee against AmTran and the trial court did not discuss this body of law.
An assignee ordinarily obtains only the rights possessed by the assignor at the time of the assignment, and no more. First Nat’l Bank of Fayetteville v. Massachusetts Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988); Office of Child Support Enfcm’t v. Watkins, 83 Ark. App. 174, 119 S.W.3d 74 (2003). As stated by the Restatement (Second) of Contracts, § 336, Comment b (1981), an assignor can assign “only what he has,” and the assignee’s right “is subject to limitations imposed by the terms of that contract [creating the right] and to defenses which would have been available against the obligee had there been no assignment.” These common-law principles were codified in the Uniform Commercial Code as section 4-9-318. As such, Exchange stands in Thunder’s position and is subject to any defenses AmTran could raise if Thunder had brought suit.
In the present case, the contract sued upon was the contract between Thunder and AFS and was an exchange of mutual promises: Thunder, to haul freight for AmTran; AFS, as agent for AmTran, to pay for the freight services. See Restatement (Second) of Contracts, § 238 (1981). The evidence that Thunder submitted fraudulent invoices is undisputed. Jill Fagan testified that $30,968.80 of the $90,407.11 in invoices sued upon were fraudulent and that AmTran did not receive the goods that were listed on the fraudulent invoices. As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. TXO Prod. Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985); Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980); 9 Arthur L. Corbin, Corbin on Contracts, § 895, pp. 524-26 (Interim ed. 2002). Exchange argues that AmTran, through Fagan, admitted liability for some $59,000 in unpaid invoices. However, this misses the point that AmTran alleges that it overpaid Exchange for fraudulent invoices in an amount greater than that sued upon. This could be a complete setoff against Exchange’s claim, if proven. See Walker v. First Commercial Bank, 317 Ark. 617, 880 S.W.2d 316 (1994). We reverse and remand for a new trial.
On AmTran’s second point concerning the award of attorney’s fees to Exchange, we also reverse because Exchange is no longer a “prevailing party” entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 (1999).
Reversed and remanded.
Pittman and Roaf, JJ., agree.
There was testimony from John Coffey, chief executive officer of Exchange, that Exchange’s relationship with Lightning ended in October 1998.
The General Assembly adopted a new Article 9 to govern secured transactions in 2001, effective July 1,2001.2001 Ark. Acts 1439.The present case was commenced prior to July 1,2001, and the prior version governs this case. See Act 1439, § l(c).All references will be to the 1991 version of the statute unless otherwise noted. Former Ark. Code Ann. § 4-9-318 (1991) now corresponds, with modifications, to Ark. Code Ann. § 4-9-404 (2001).
Section 4-9-318(l)(a) (1991) reads in part, “the rights of an assignee are subject to ... [a]ll the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom....”
The parties presented voluminous addenda containing hundreds of pages, all of the invoices at issue in this case, plus numerous additional documents. We find that this was unnecessary in light of the way the case was argued on appeal and remind counsel that an abstract and addendum can be deficient for containing too much material, as well as too little. See Miller v. Hometown Propane Gas, Inc., 82 Ark. App. 82, 110 S.W.3d 304 (2003); Frigon v. Frigon, 81 Ark. App. 314,101 S.W3d 879 (2003). | [
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ARRY D. Vaught, Judge.
This is an appeal from an order partial summary judgment in favor of appellee. Appellants, William A. Thurman and Bill Thurman, Jr., contend that the trial court erred as a matter of law in finding that personal guaranties executed by them to Leprino Foods for credit given to B.S.G. Foods extended to appellee Multifoods Distribution Group, who acquired the assets of Leprino Foods through an asset-purchase agreement. We affirm.
The facts of this case are undisputed. From 1992 until 1998, appellants, William A. Thurman and Bill Thurman, Jr. (“the Thurmans”), operated B.S.G. Foods, Inc. (“BSG”), a pizza manufacturing company. BSG purchased food and supplies from Leprino Foods Co. (“Leprino Foods”) to prepare frozen pizzas. On July 13, 1993, William Thurman executed a personal guaranty for items purchased by BSG from Leprino Foods. The guaranty provided:
For good and valuable consideration, the undersigned jointly and severally guarantees unconditionally the prompt payment of any and all credit that may be extended to BSG Foods Inc. by Leprino Foods Company from the date of the agreement until ten (10) days after receipt by Leprino Foods Company, at 1830 West 38th Avenue, Denver, Colorado 80211-2200, of written notification of the undersigned’s desire to terminate this guaranty as to any credit extended after such notification. It is understood and agreed that credit is to be extended by Leprino Foods Company on a continuing basis, and Leprino Foods Company shall not be obligated to notify the undersigned of the dates or amounts of any such credit extended. The undersigned hereby waives demand, notice of default, and any extension of time of other forbearance which may be extended by Leprino Foods Company. The undersigned agree, jointly and severally, to pay in addition to the indebtedness hereby guaranteed, interest on said indebtedness at the rate of 18% per annum or the maximum allowable rate, whichever is less, from the date on which the indebtedness becomes due up to and including the date of its payment in full together with interest as promised herein, and reasonable costs of collection including attorney’s fees. This Guaranty has been delivered at Denver, Colorado, and shall be construed in accordance with and governed by the laws of the State of Colorado.
Bill Thurman, Jr., executed an identical personal guaranty on August 27, 1993.
On July 29, 1994, appellee Multifoods Distribution Group, Inc. (“Multifoods”), acquired the assets of Leprino Foods pursuant to an asset-purchase agreement. BSG then began to purchase food and supplies horn Multifoods and eventually became indebted to Multifoods. As a result of the indebtedness, BSG executed a promissory note to Multifoods in the amount of $70,691.60. BSG made payments totaling $22,455.37 and was given a credit of $4,416.12. In addition, BSG purchased $16,420.87 in products. At the time BSG defaulted on the note, it owed Multifoods $64,204.65.
Multifoods filed suit against BSG to recover the amount due under the note and against the Thurmans based on the personal guaranties they signed in 1993 in favor of Leprino Foods, plus $9,643.50 on a special food order. The trial court granted a motion for judgment on the pleadings with respect to BSG’s liability on the promissory note. Multifoods then filed a motion for summary judgment on the Thurmans’ liability on the promissory note and the special food order claim. The trial court granted partial summary judgment in favor of Multifoods, finding that the Thurmans were personally hable for the amount due on the note based on the personal guaranties they executed in favor of Leprino Foods. However, the trial court found that summary judgment was not appropriate on Multifoods’s special food order claim because issues of fact remained. Multifoods nonsuited the special foods order claim, and appellants appealed the trial court’s grant of partial summary judgment, contending that the law does not support the trial court’s findings.
Summary judgment is to be granted by a trial court only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Majors v. American Premier Ins. Co., 334 Ark. 628, 977 S.W.2d 897 (1998). Where the pertinent facts of the case are undisputed, we simply determine on appeal whether the appellee was entitled to summary judgment as a matter of law. Id.
The Thurmans argue that they are not personally liable because the personal guaranties executed by them in favor of Leprino Foods do not extend to the amount due under the promissory note executed by BSG Foods in favor of Multifoods. In the recent case of Morrilton Sec. Bank v. Kelemen, 70 Ark. App. 246, 16 S.W.3d 567 (2000), we discussed the obligation of a guarantor:
A guarantor, like a surety, is a favorite of the law, and her liability is not to be extended by implication beyond the expressed terms of the agreement or its plain intent. National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963); Moore v. First National Bank of Hot Springs, 3 Ark. App. 146, 623 S.W.2d 530 (1981). A guarantor is entitled to have her undertaking strictly construed and she cannot be held liable beyond the strict terms of her contract. Inter-Sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Lee v. Vaughn, 259 Ark. 424, 534 S.W.2d 221 (1976). Any material alteration of the obligation assumed, made without the consent of the guarantor, discharges her. Wynne, Love & Co. v. Bunch, 157 Ark. 395, 248 S.W.2d 286 (1923); Continental Ozark, Inc. v. Lair, 29 Ark. App. 25, 779 S.W.2d 187 (1989).
Id. at 247-48, 16 S.W.3d at 568. Further, alteration of a guaranty agreement is not material unless the guarantor is placed in the position of being required to do more than his original undertaking. Vogel v. Simmons First Nat’l Bank, 15 Ark. App. 69, 689 S.W.2d 576 (1985).
Guaranties are divided into two classes, general and special. A general guaranty is addressed to persons generally and may be enforced by anyone to whom it is presented. 38 Am. Jur. Guaranty § 17. A special guaranty is one addressed to particular persons and may not be enforced by any person other than to whom it is addressed. Id. In Periman v. Rogers, 187 Ark. 565, 61 S.W.2d 59 (1933), the supreme court discussed special guaranties:
At § 52 of Stearns on Suretyship (3d ed.), page 64, it is said: “A guaranty is special when it is addressed to a particular person, firm or corporation, and, when so addressed, only the promisee named in the instrument acquires any rights under it.” . . .
At 16 of the chapter on Guaranty in 28 C.J., page 897, it is said: “A special guaranty is one which is addressed to a particular person who alone can take advantage of it, and to whom only the guarantor can be held responsible; it usually, but not necessarily, contemplates a trust or reposes a confidence in the person to whom it is addressed.”
Id. at 567, 61 S.W.2d at 59. Appellants suggest that the guaranties they executed are special guaranties because they were specifically addressed to Leprino Foods and did not contain “successors and assigns” language, indicating that they could be enforced by Leprino Foods’ successor or assigns. Based on these facts, they contend that the guaranties are not enforceable by Multifoods and suggest that Periman v. Rogers is controlling.
In Periman v. Rogers, J.G. Rogers entered into alease agreement with Butler & Sons to rent a gas station. Rogers’s payment of rent was guaranteed by three men pursuant to a written contract. Rogers became ill and Ladd took possession of the property. During Ladd’s possession, Butler & Sons sold the property to Hays and Periman. Ladd defaulted on the lease payments; Hays and Periman sued Rogers and his guarantors to recover past due rents. A default judgment was obtained against Rogers and one guarantor. The trial court entered a judgment in favor of the two other guarantors, which was affirmed on appeal, finding that the guaranty was special and only addressed the original lessors and did not run to their heirs or assigns.
Appellants’ rebanee on Periman is misplaced because an assignment of the guaranties was not at issue. There was no indication that Butler & Sons assigned the written contract signed by three men guaranteeing Roger’s payment of rent when it sold the property to Hays and Periman. In the present case, Multifoods acquired the assets of Leprino Foods pursuant to an asset-purchase agreement, which included the guaranties signed by the Thurmans. Thus, the court reached its decision in Periman without deciding whether a special guaranty can be assigned.
In addition to Periman v. Rogers, appellant also cites Flying J, Inc. v. Booth, 773 P.2d 144 (Wyo. 1989). In Booth, the appellees Jacqueline and Elvin Booth owned one-half of the outstanding shares of Booth Livestock, Inc., which operated a truck stop named Husky Super Stop. Before Husky Oil Co. would extend credit to Booth Livestock on fuel purchases and other products, Husky required appellees to personally guarantee the payment of any obligation incurred by Booth Livestock. Appellees executed the guaranty, and Husky supplied Booth Livestock with products used to operate the truck stop. In 1983, the Booths subsequently sold their one-half interest to Joan and Paul Gillett, who already owned the other half. The Gilletts were allowed to continue to purchase products on credit from Husky based on personal guaranties they executed in 1984. In May 1984, Husky sold its assets to RMT Properties, which was acquired by Big West Oil Co. in December 1985. Big West then assigned its assets to its wholly owned subsidiary Flying J, Inc., appellant therein. In 1985, Booth Livestock, then owned wholly by the Gilletts, defaulted on payments due. Appellant sued the Booths and the Gilletts to recover under the guaranty. Before the Gilletts were served with the complaint, Paul Gillett died and Joan Gillett filed for bankruptcy.
The Wyoming Supreme Court found that the guaranty signed by appellees was a special guaranty since it was addressed to only one creditor, Husky. The court then addressed whether the guaranty was assignable, holding that it was not. Speaking of the guaranty agreement, the court stated:
That language expressly and clearly indicates that the relationship and intent of these parties was rooted in appellees’ reliance on Husky’s ability and willingness to perform its contract with BL [Booth Livestock]. A guaranty expressly given in consideration of the extension of future credit by a specific individual is generally held to be non-transferable. . . . Even where obligee sells his business and his successors continue to extend credit, the guarantor is hable only for debts resulting which accrued prior to the transfer of the original obligee’s assets but not after.
Id. at 148. The Wyoming court declined to join the other courts which permit the assignment of special guaranties in the absence of actual prejudice to the guarantor.
In support of its argument, appellee relies on Kraft Foodservice, Inc. v. Hardee, 340 N.C. 344, 457 S.E.2d 596 (N.C. Sup. Ct. 1995), where the North Carolina Supreme Court upheld an assignment of a special guaranty. In Kraft, Charlie Hardee was the president of Quick Fifí, Inc., which operated convenience stores. Quick Fill submitted an application in June 1984 to Seaboard Foods, Inc., in Rocky Mount to purchase restaurant supplies and other merchandise on an open account. Hardee signed a personal guaranty for the account, promising to pay any amounts owed by Quick Fill for goods sold and delivered on the open account. After receiving the credit application and the guaranty, Seaboard began to sell merchandise to Quick Fill. In December 1995, Seaboard sold and assigned substantially all of its assets, including its Rocky Mount warehouse and Hardee’s personal guaranty to Kraft, Inc. Kraft continued to sell merchandise to Quick Fill on the open account guaranteed by Hardee. Kraft then merged with General Foods, Inc., in 1989, forming Kraft General Foods, Inc. In December 1990, certain corporate assets, including the Hardee guaranty, became vested in appellee Kraft Foodservice. The corporate changes did not affect Quick Fill’s ability to purchase goods on the open account.
In January 1991, Quick Fill filed a petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code. Quick Fill owed $18,120.44 on the open account. Kraft Foodservice filed an action to enforce Hardee’s personal guaranty. The trial court entered summary judgment for Kraft Foodservice. The North Carolina Court of Appeals reversed, holding that the guaranty was special and extended only to Seaboard Foods and was not enforceable by Kraft Foodservice as Seaboard’s successor or assignee. The North Carolina Supreme Court reversed the decision of the Court of Appeals, holding that the guaranty was assignable and enforceable by Kraft Foodservice as Seaboard’s assignee.
The North Carolina Supreme Court discussed the difference between a special and a general guaranty. The court elaborated that a special guaranty usually contemplates a trust in the person to whom it is addressed. It was noted that state courts are split on the issue of whether a guaranty addressed to a corporation may be enforced by the corporations’s successor. Kraft, 457 S.E.2d at 598 (citing 38 C.J.S. Guaranty § 41(b)(1), at 1186 (1943)). Relying on prior law, the North Carolina Supreme Court held that the rights under a special guaranty are assignable unless: the assignment is prohibited by statute, public policy, or the terms of the assignment; the assignment would materially alter the guarantor’s risks, burdens or duties; or the guarantor executed' the contract because of personal confidence in the obligee. It stated that such a rule “is consistent with the common law of contracts, accommodates modern business practices, and fulfills the intent of the parties to ordinary business agreements.” Id. at 348, 457 S.E.2d 596, 598-99.
The reasoning of the North Carolina Supreme Court in Kraft Foodservice is also consistent with the Restatement (Third) of Suretyship and Guaranty § 13 (1996), which provides in part:
(1) The rights of the obligee against the secondary obligor arising out of the secondary obligation can be assigned unless:
(a) the substitution of a right of the assignee for the right of the obligee would materially change the duty of the secondary obligor or materially increase the burden or risk imposed on it by its contract; or
(b) the assignment is forbidden by statute or is otherwise ineffective as a matter of public policy; or
(c) the assignment is validly precluded by the contract.
Based on the Restatement and the reasoning of Kraft Food-service, we conclude that the appellee, as Leprino Foods’ assignee, could enforce the appellants’ personal guaranties. The terms of the guaranty contracts do not prohibit assignment, nor does public policy or any statute preclude assignment under these facts. Leprino Foods’ assignment of the guaranties to Multifoods does not alter appellants’ obligations. Appellants vowed to be personally hable if BSG failed to pay its debts on the open account. The assignment merely substituted the payee. There is also no evidence that the Thurmans executed the guaranties based on personal confidence they had in Leprino Foods. The guaranties were executed so that BSG Foods could purchase products on a open account. Even after Leprino Foods assigned its assets to Multifoods, BSG continued to purchase goods from Multifoods on the open account.
Accordingly, we affirm the trial court’s grant of partial summary judgment to appellee.
Robbins and Bird, JJ., agree. | [
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Tom Glaze, Judge.
In this criminal case, appellant’s sole point for reversal is the failure of the evidence to support his conviction of second degree forgery, for which he was sentenced to five years in the Department of Correction. The second degree forgery charge against appellant was based on a check made payable to a Safeway grocery store. The unauthorized check in the amount of $65.00 was drawn on the account of Mary E. Evans. The crux of appellant’s argument is the lack of evidence that he ever possessed or passed this forged check. Therefore, he concludes the trial court based its finding of guilt upon mere speculation and conjecture. We disagree.
Appellant reads the applicable law much too narrowly. One commits forgery in the second degree if he forges a written instrument that is a check. See Ark. Stat. Ann. § 41-2302(3)(a) (Repl. 1977); and Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). A person forges a written instrument if with purpose to defraud, he draws, makes, completes, alters, counterfeits, possesses or utters any written instrument that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize the act. Ark. Stat. Ann. § 41-2302(1) (Repl. 1977). Any of the acts set forth in § 41-2302(1) constitutes the single crime of forgery. See Mayes, 246 Ark. at 290, 571 S.W.2d at 424-25.
From our review of the record, we believe the evidence, albeit circumstantial, unquestionably established the appellant forged the Evans check. The evidence is undisputed that the check in issue was unauthorized and that someone uttered it at a Safeway store; thus, the purpose to defraud Safeway was shown by the State. The State introduced into evidence the check that has the appellant’s name on the back as the endorser. The State’s witness, Larry Gaines, then testified that he had either given this Evans check to the appellant or the appellant “got it on his own.’’ Gaines explained that he had hidden a book of the Evans checks in his apartment where the appellant stayed. Gaines, a convicted forger, admitted that he had signed and otherwise completed the check in question with the exception of endorsing the appellant’s name on the back and making the check payable to Safeway. Ms. Linda Taylor, an examiner of questionable documents for the State Crime Lab, testified that the appellant wrote the word “Safeway’’ on the payee line of the check and that he wrote his name on the back.
The appellant did not testify, and.the foregoing evidence stands otherwise uncontradicted. Viewing that evidence in the light most favorable to the appellee, we believe the State met its burden and proved each element of the crime of second degree forgery. In sum, the State’s evidence, reasonably and inferentially, showed that the appellant made, completed and possessed the Evans check which was fraudulently cashed at Safeway. Furthermore, because the evidence indicates the appellant made the check payable to Safeway and endorsed it, we believe it was reasonable for the trial court to infer that he uttered or caused the check to be uttered to defraud Safeway. Therefore, we affirm the trial court’s decision.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
This is a divorce case in which the appellee was granted the divorce. The decisive question on appeal is whether appellee’s proof was sufficient to establish her cause of action.
The appellee filed her complaint alleging general indignities. Appellant answered, denying such allegations and requesting that appellee’s complaint be dismissed. At trial, appellant’s counsel made the following opening statement:
May it please the Court. At the outset, we, of course, have filed an answer and counterclaim in the case, but as a practical matter we will not fight the grounds for divorce. It’s our understanding that minimal testimony would be presented with reference to the grounds.
Counsel concluded his statement by indicating that appellant mainly objected to appellee’s property demand and would object to anything other than a fifty-fifty division of marital property. Following other preliminary remarks between counsel and the court, appellee took the stand and testified first to establish her grounds for divorce. That testimony in its entirety is as follows:
Q. Mrs. Harpole, we have alleged in the complaint what is described as general indignities and have alleged that Mr. Harpole treated you with contempt, neglect, abuse, that he nagged you and that you all just weren’t able to get along. Is that correct?
A. That’s true, yes.
Q. And was that the reason for the separation?
A. Yes.
Q. Did you ask him to leave?
A. Yes.
Q. Did you find that the conditions were such that you just couldn’t live together any longer?
A. Yes.
At this point, appellant’s counsel declined the court’s invitation to cross-examine appellee on the issue of her grounds for divorce, so appellee’s sister was called to corroborate grounds. After establishing her relationship and contact with the appellee, the sister testified as follows:
Q. Do you know that the conditions were such that Mr. Harpole nagged her and neglected her and they just didn’t get along in the home?
A. They just didn’t get along.
Q. And do you know that Mrs. Harpole ultimately asked him to leave and —
A. Yes, sir.
Q. —filed suit for divorce?
A. Yes, sir.
In this appeal, appellant argues that appellee failed to prove or corroborate general indignities by the foregoing testimonies. He raises a second issue as well, because the court’s decree, when entered, actually reflected that appellee was awarded a divorce on the grounds of three years’ separation without cohabitation. Both parties agree that appellee neither alleged nor proved the three-year-separation ground and that this ground was mistakenly placed in the decree. Nevertheless, appellee argues that by the time the decree was entered, three years had passed. Thus, since appellee and her sister both testified that the parties separated in July, 1979, she contends this Court is permitted, when reviewing the correctness of the lower court’s decision, to assume the parties remained separated for the required three year period. This case was filed in August, 1979, last heard by the trial court in April, 1982, and decreed in December, 1982.
We dispose of the second issue first. In doing so, we note that the parties tried this divorce action on three separate dates, October 26, 1981, November 3, 1981, and April 15, 1982. As previously mentioned, appellee never alleged three years’ separation without cohabitation as a ground for the divorce and offered no proof on that issue at any of the three hearings. In fact, the parties had not been separated for three years even at the time of their last hearing in April, 1982. The trial court took the case under submission until December, 1982, when it awarded the divorce. The law is well established that the chancellor cannot incorporate into the decree at any time a matter not within the issues raised by the pleadings and proof. Evans v. United States Anthracite Coal Co., 180 Ark. 578, 21 S.W.2d 952 (1929); Gregory v. Moose, 266 Ark. 926, 590 S.W.2d 665 (Ark. App. 1979), cert. denied, 267 Ark. 86, 590 S.W.2d 662 (1979). The purpose of this rule is to afford parties the opportunity to cross-examine and to be heard on any matter on which the trial court might base its findings and decision. Here, appellant was denied a hearing on the three-year-separation issue, and contrary to appellee’s suggestion, we are unable to assume this ground existed at the time the decree was entered.
Nor can we affirm the trial court’s decree on the general indignities ground which appellee asserted. As we pointed out in Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981), divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Nine grounds for divorce are set forth in Ark. Stat. Ann. § 34-1202 (Supp. 1983), and the general indignities ground alleged here by appellee is one of six that Arkansas adopted and has recognized since 1838. See Compiler’s Note to Ark. Stat. Ann. § 34-1202 (Repl. 1962). Over the years, these first six grounds have remained unchanged; however, the necessity for corroborating grounds has changed. Corroboration of grounds has been required since 1869, when Arkansas adopted the Kentucky Code. See Ky. Code, Divorce § 458 [codified in Gantt’s Digest, Divorce § 2200 (1874)]. In 1969, the General Assembly enacted Act 398, eliminating the necessity of corroborating a plaintiff’s (or counter-claimant’s) ground or grounds for divorce in uncontested divorce suits. See Ark. Stat. Ann. § 34-1207.1 (Supp. 1983). By a 1981 amendment, a spouse now may waive in writing the necessity of corroborating the injured party’s grounds even when suits are contested. Id. Nevertheless, regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in Ark. Stat. Ann. § 34-1202 (Supp. 1983). In other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Thus, the opening remarks made by appellant’s counsel in no way permitted appellee to proceed without first establishing her required grounds for divorce.
In the instant case, appellee alleged in her complaint that appellant treated her “with rudeness, contempt, neglect and abuse, deliberately and systematically pursued and offered such indignities to her as to render her condition in life intolerable and to make it impossible for her to live with him.” Appellee testified — as set out above — in conclusory terms, paraphrasing those allegations contained in her complaint. Such testimony and proof is clearly insufficient. In the early case of Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912), the Supreme Court defined what evidence is necessary to establish indignities as a ground for divorce. The Court said:
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt and indignities complained of. General statements of witnesses that defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts — that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms — so that the court may be able to determine whether those acts and such conduct are of such a nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability probably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting therefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
Id. at 195-96, 150 S.W. at 1032 (emphasis supplied).
Our appellate courts have not departed from that quantum of proof recognized and required by the Court in Bell. Cf. Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963); Lipscomb v. Lipscomb, 226 Ark. 956, 295 S.W.2d 335 (1956); Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954); and Welborn v. Welborn, 189 Ark. 1063, 76 S.W.2d 98 (1934); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ark. App. 1979). Accordingly, in this de novo review of the evidence, we must conclude that appellee failed to prove her alleged claim of general indignities.
Finally, we consider appellee’s contention that because appellant failed to take any action to advise the trial court that the evidence was insufficient to establish grounds, appellant should not be able to raise the issue for the first time on appeal. Again, we must disagree. First, appellant did file a motion for new trial below, but appellee successfully challenged the motion for being untimely. Second, and more importantly, the appellant was not required to raise the sufficiency of evidence question below. In equity cases, a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief. Ark. R. Civ. Pro. 50(a). However, in a non-jury trial, a party who does not challenge the sufficiency of evidence does not waive the right to do so on appeal. See Bass v. Roller, 276 Ark. 93, 632 S.W.2d 410 (1982).
We conclude that appellee did not establish a cause of action. However, because the three-year-separation issue raised in this suit may be merely premature, we reverse and dismiss without prejudice. Oxford v. Oxford, supra.
Reversed and dismissed.
Mayfield, C.J., and Cracraft, J., agree.
Appellant did file an answer but not a counterclaim.
In these three hearings, the parties primarily asserted their respective claims to certain marital property. Several issues concerning the trial court’s award of property are raised in this appeal, but we do not reach them since we find insufficient proof was presented to substantiate grounds for a divorce.
Secdon 34-1207.1 still requires corroboration of residence and continuous separation without cohabitation.
The trial court made no finding on whether the appellee presented proof to establish the alleged ground of general indignities. | [
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Sam Bird, Judge.
Shelly Turner, administratrix of the Estate of Ricky Turner, deceased, brings this appeal from the entry of summary judgment against her. Turner had filed suit against appellee Northwest Arkansas Neurosurgery Clinic, P.A. (Clinic), for negligent hiring, supervision, and retention. She argues three points on appeal: the trial court erred in denying her motion to reconsider an order in limine, in granting summary judgment to the Clinic, and in denying her request to take certain depositions. We hold that the trial court abused its discretion in its evidentiary and discovery rulings, and that genuine issues of material fact remain for trial.
This lawsuit is a medical-malpractice action that began after the death of Mr. Turner, who underwent a laminectomy on September 26, 1996. The surgery was performed by Dr. Kelly Danks and Dr. Luke Knox, who were employed by the Clinic. Complications developed after the surgery, and Mr. Turner died from what was later revealed to be an Escherichia coli (more commonly known as E. coli) infection. According to Mrs. Turner, Dr. Danks pierced the psoas muscle and the bowel of Mr. Turner while performing surgery, causing his death. Mrs. Turner filed her malpractice suit against Drs. Danks and Knox individually, the Clinic, Washington Regional Medical Center, and two other physicians; the medical center and the two other physicians were later dismissed from the case. Mrs. Turner sought to hold the Clinic vicariously liable for the actions of Drs. Danks and Knox. She contended that, at the time of Mr. Turner’s surgery, Dr. Danks was suffering from undiagnosed bipolar disorder and was being improperly treated by Dr. Knox, who was not his physician, with the contraindicated antidepressant Prozac. She also alleged that Dr. Danks was inhaling nitrous oxide gas because the Prozac exacerbated his mental disorder.
The Clinic successfully moved for an order in limine prohibiting the admission of any evidence relating to Dr. Danks’s mental illness, use of Prozac, abuse of nitrous oxide gas, and subsequent suspension from the practice of medicine by the Arkansas Medical Board. Although Mrs. Turner dismissed her complaint against Dr. Knox without prejudice, she again included him as a defendant when she filed her second amended complaint on November 13, 2000. In her second amended complaint, Mrs. Turner added causes of action against the Clinic and Dr. Knox for the negligent hiring, supervision, and retention of Dr. Danks. She sought to depose Dr. Danks’s treating physicians. The trial court, however, denied her discovery request and entered a protective order prohibiting the taking of those depositions.
On July 31, 2002, Mrs. Turner filed a motion to reconsider the order in limine and attached affidavits, excerpts from depositions, copies of Dr. Danks’s personal medical records, and Dr. Danks’s testimony before the medical board in an effort to demonstrate that Dr. Danks was suffering from bipolar disorder, was using Prozac, and was abusing nitrous oxide gas before the surgery. The trial court denied the motion to reconsider and held that Mrs. Turner had failed to state a cause of action against Dr. Knox for negligence. Mrs. Turner settled her individual claims against Dr. Danks, leaving only the negligent hiring, supervision, and retention claims against Dr. Knox and the Clinic.
The Clinic then moved for summary judgment. The trial court granted this motion, stating:
That the Court further finds the defendants, Northwest Arkansas Neurosurgery Clinic, P.A., and Luke Knox, M.D., are entitled to summary judgment on plaintiffs allegations of negligent hiring, supervision, and retention. The Court finds the plaintiff has no admissible evidence to support these claims beyond pure speculation and conjecture and that there are no genuine issues of material fact and the defendants are entitled to summary judgment as a matter of law. Plaintiffs allegations of negligent hiring, negligent supervision, and negligent retention are therefore dismissed with prejudice.
In this order, the trial court denied Mrs. Turner’s motion for reconsideration of the dismissal of her cause of action against Dr. Knox for negligent post-operative care. Mrs. Turner settled her claims against Dr. Knox, leaving only her claims against the Clinic.
On appeal to this court, Mrs. Turner argues that the trial court erred: (1) in denying her motion to reconsider the order in limine, (2) in granting summary judgment to the Clinic on her claims of negligent hiring, supervision, and retention, and (3) in denying her the opportunity to depose Dr. Danks’s treating physicians.
The Motion to Reconsider
Mrs. Turner argues that the trial court abused its discretion in denying her motion to reconsider its order holding as inadmissible ail evidence of Dr. Danks’s bipolar disorder, nitrous oxide abuse, suspension by the medical board, and inappropriate treatment with Prozac. She contends that this evidence was essential to her negligent hiring, supervision, and retention claims; was relevant under Ark. R. Evid. 401; and was not inadmissible under Ark. R. Evid. 403. In denying her motion to reconsider, the trial court accepted the Clinic’s argument that this evidence was so prejudicial that its probative value was outweighed. The trial court also adopted the Clinic’s assertion that no evidence existed in regard to Dr. Danks’s mental impairment or abuse of nitrous oxide gas or Prozac prior to or on the date of Mr. Turner’s surgery.
To challenge the trial court’s ruling, Mrs. Turner points out that, in support of her motion to reconsider, she offered evidence of the following: Dr. Danks testified under oath before the medical board that he was suffering from depression, for which he received Prozac from his partner, Dr. Knox, in the fall of 1996; Dr. Danks testified before the medical board that his mental illness was exacerbated by the use of Prozac and that this led to his use of nitrous oxide gas; in its emergency November 7, 1997, order and its February 27, 1998, order, the medical board noted that Dr. Danks had used nitrous oxide during 1996; Dr. Phillip Villa-nueva gave an opinion that, on the date of Mr. Turner’s surgery, Dr. Danks was suffering from untreated bipolar disorder and was using Prozac; and Dr. Alan Cohen gave an opinion that, on the date of Mr. Turner’s surgery, Dr. Danks was suffering from undiagnosed bipolar syndrome, which was exacerbated by his contraindicated use of Prozac. Mrs. Turner argues that the evidence she attached to her motion to reconsider demonstrates that Dr. Danks was impaired during late summer 1996 until March 1997. She contends that, although Dr. Danks was not diagnosed with bipolar disorder until after Mr. Turner’s surgery, it is clear from her evidence that he was exhibiting symptoms of the illness before the surgery. Mrs. Turner also points out that she attached to her motion copies of Dr. Danks’s medical records, which revealed that he began experiencing mental illness in March 1996, began using Prozac in September 1996, and began abusing nitrous oxide gas as early as August 1996, one month before Mr. Turner’s surgery. She argues that the excluded evidence is absolutely essential to prove that Dr. Danks breached the standard of care and to establish what the Clinic knew or should have known about his mental impairment.
Citing Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987), Mrs. Turner contends that motions in limine are not to be used as a sweeping means of testing issues of law. She asserts that simple intoxication is not the basis for her contention that Dr. Danks breached the neurosurgeon’s standard of care in performing surgery on Mr. Turner. Instead, she argues, Dr. Danks’s continuing medical condition, along with unsupervised use of Prozac and abuse of nitrous oxide gas, caused his breach of the standard of care. She also argues that the Clinic knew or should have known that his conduct would subject patients to an unreasonable risk of harm.
We will not reverse the trial court’s decision to admit or refuse evidence in the absence of an abuse of that discretion and a showing of prejudice. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001).
In order to determine what evidence was relevant to Mrs. Turner’s cause of action, we must first discuss its elements. In Sparks Regional Medical Center v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998), we stated that employers are subject to direct liability for the negligent hiring, retention, or supervision of their employees when third parties are injured by the tortious acts of unfit, incompetent, or unsuitable employees. This must be established by proving that the employer knew, or in the exercise of ordinary care should have known, that its employee’s conduct would subject third parties to an unreasonable risk of harm. Id. Accord Saine v. Comcast Cahlevision of Ark., Inc., 354 Ark. 492, 126 S.W.3d 339 (2003); Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003); Madden v. Aldrich, supra; Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d 107 (2001).
Arkansas Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevance is a concept of admissibility and not one of weight. Wilson Howe, Arkansas Rules of Evidence 41-42 (2d ed. 1995). In that treatise, the author states:
Thus, to be relevant, evidence need not conclusively establish the fact of consequence. All it must do, when considered in the entire context of the trial, is make the proposition for which it is offered more or less probable than it would be without it.
A very important aspect of the definition of relevant evidence is contained in the phrase “any tendency.” ... [Ujnless the rationale of this Rule’s definition is followed carefully and with the realization that evidence need only have a “tendency,” the error of arguing its weight rather than admissibility will be easily made.
The same analysis is applicable whether the evidence be direct, circumstantial, real or demonstrative.The test remains whether it has “any tendency” to prove or disprove a proposition consequential to determining the case....
.... [Ejvidence is not rendered irrelevant simply because, standing alone, its probative force is weak or its circumstantial nature requires many connecting links.
Id. at 42-43 (emphasis in original).
Even though evidence is relevant according to Rule 401, it may be excludable under Rule 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” A trial court must first consider whether the relevant evidence creates a danger of unfair prejudice and, second, whether the danger of unfair prejudice outweighs its probative value. Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). The probative value of evidence correlates inversely to the availability of other means of proving the issue for which the allegedly prejudicial evidence is offered. Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 735 (1996). The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision will not be reversed absent a manifest abuse of that discretion. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999).
In Arkansas Rules of Evidence, supra, 55-56, the author states:
The key phrase in the rule is “substantially outweighed.” This phrase and the general spirit of the Arkansas Rules strongly favor admissibility of relevant evidence. Thus the probative value of questioned evidence is pitted against the dangers it poses calling for exclusion only if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . . .
.... The kind of prejudice the Rule addresses, of course, is unfair prejudice, not the kind of “prejudice” that inheres in all evidence that advances one side to the detriment of the other. Unfair prejudice will naturally confuse the issues, mislead the jury and cause undue delay. But it is to be distinguished from the normal tendency of proper evidence to advance one’s cause. This unfair prejudice in the Rule 403 sense means an undue influence on the jury that substantially outweighs its persuasive force. . . .
(Emphasis in original.)
Thus, the mere fact that evidence is prejudicial to a party does not make it inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003); Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). The prejudice referred to in Rule 403 denotes the effect of the evidence upon the jury, not the party opposed to it. Easterling v. Weedman, supra.
A motion in limine is a threshold motion, and a trial court is at liberty to reconsider its prior rulings during the course of a single trial. ConAgra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). In Schichtl v. Slack, 293 Ark. at 285-86, 737 S.W.2d at 630-31, the supreme court stated:
[Mjotions in limine are not to be used as a sweeping means of testing issues of law. Such motions are to be used to prevent some specific matter, perhaps inflammatory, from being inteijected prior to the trial court’s having decided on its admissibility outside the hearing of the jury. Kozy Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Arkansas State Highway Comm. v. Pulaski Inv. Co., 272 Ark. 389, 614 S.W.2d 675 (1981).
In Kozy Kitchen v. State we refused to reverse the denial of a vague motion in limine which, like this one, was filed without legal authority on the morning of trial. We cited Bridges v. City of Richardson, 349 S.W.2d 644 (Tex.Civ.App. 1961) where it was said that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated testimony so that the court may intelligently act on such motions. Here, the trial judge knew nothing of the case except as may have been revealed by the pleadings or the brief argument in chambers.Yet he was asked to rule that Schichd was under no duty to warn Slack of the possibility of fire no matter what the circumstances of the case. Without some legal authority supporting that proposal, we do not regard it as error for the trial court to refuse to grant a motion in limine. In Lewis v. Buena Vista Mutual Ins. Assn, 183 N.W.2d 198 (Iowa, 1971), also cited approvingly in Kozy Kitchen, the Iowa Supreme Court described the purpose of motions in limine:
The motion in limine is a useful tool, but care must be exercised to avoid indiscriminate application of it lest parties be prevented from even trying to prove their contentions. That a plaintiff may have a thin case or a defendant a tenuous defense is ordinarily insufficient justification for prohibiting such party from trying to establish the contention. Nor should a party ordinarily be required to try a case or defense twice — once outside the jury’s presence to satisfy the trial court of its sufficiency and then again before the jury. Moreover, the motion in limine is not ordinarily employed to choke off an entire claim or defense, as it was here regarding arson. Rather, it is usually used to prohibit mention of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been shown out of the hearing of the jury.
To her second amended complaint, Mrs. Turner attached copies of a number of documents that contain evidence of Dr. Danks’s mental impairment, abuse of nitrous oxide gas, and use of Prozac at or before the time of Mr. Turner’s surgery. Mrs. Turner included copies of Dr. Danks’s medical records from his treatment at three separate psychiatric hospitals. These records contain evidence that Dr. Danks had used nitrous oxide as early as September 1996; that his bipolar symptoms had begun in March 1996; that he had taken Prozac from September through November 1996; and that he had used nitrous oxide over a period of time dating back to August 1996. Mrs. Turner also supplied copies of the medical board’s emergency suspension on November 7, 1997, wherein it stated that on various occasions in 1996 and 1997 Dr. Danks had inhaled nitrous oxide. She attached transcripts of the hearings before the medical board. In the first hearing, Dr. Danks admitted to the board that he had used Prozac in the fall of 1996, as prescribed by Dr. Knox. Mrs. Turner also attached a copy of the deposition of Brenda Cook-Willis, who while work ing as a nurse at a Houston, Texas, hospital in 1990 or 1991, caught Dr. Danks abusing nitrous oxide gas.
In support of her motion to reconsider, Mrs. Turner filed copies of excerpts from Dr. Danks’s testimony before the medical board, his sealed medical records, and the affidavits of Dr. Alan Cohen and Dr. Phillip Villanueva. Both doctors opined that, on the day of Mr. Turner’s surgery, Dr. Danks was impaired and that he breached the applicable standard of care. She also attached a copy of Dr. Hugo Smith’s deposition in which he stated that one of Dr. Danks’s instruments had perforated-Mr. Turner’s colon and that Dr. Knox had negligently hired and supervised Dr. Danks.
We believe that the evidence that Mrs. Turner was prohibited from introducing was completely relevant and essential to her cause of action, and that its “prejudice” was not unfair. We therefore reverse the trial court’s refusal to reconsider its order in limine.
Summary Judgment
Mrs. Turner argues that the trial court erred in granting summary judgment to the Clinic on the issues of negligent hiring, supervision, and retention. In reviewing summary-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Alberson v. Automobile Club Interins. Exchange, 71 Ark. App. 162, 27 S.W.3d 447 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
It is apparent that, in deciding whether to grant summary judgment, the trial court weighed the evidence and determined that Mrs. Turner’s experts were not credible. However, it is not the role of the trial court, in deciding whether to grant summary judgment, to weigh and resolve conflicting testimony, but to simply decide whether such questions exist to be resolved at trial. See Adams v. Wolfe, 73 Ark. App. 347, 43 S.W.3d 757 (2001). The evidence discussed above, which should have been ruled admissible, clearly establishes the existence of genuine issues of material fact as to whether Dr. Danks breached his standard of care when operating on Mr. Turner and whether the Clinic knew or should have known that Dr. Danks would pose an unreasonable risk of harm to patients. Accordingly, we reverse the award of summary judgment to the Clinic and remand this case for trial.
Depositions
In her third point, Mrs. Turner argues that, if we reverse and remand for trial, she should be given the opportunity to depose Dr. Danks’s treating physicians,because depositions play an important and critical role in litigation. She asserts that she should be given the chance to explore any other leads to evidence that the treating physicians could offer her in the preparation of her case. We agree.
At the hearing on the Clinic’s motion for a protective order, the trial court stated that it would not permit Mrs. Turner to depose people whom it seriously doubted she could call as witnesses at trial. However, that is not the standard by which such decisions should be made. Arkansas Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery regarding any matter, not privileged, that is relevant to the issues in the pending action, and that it is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. One of the purposes of discovery procedures is to provide a device for ascertaining not only the facts, but information as to the existence or whereabouts of facts relative to the basic issues between the parties; this permits a litigant to secure the type of information that may lead to the production of other relevant evidence or that will facilitate his preparation for trial. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971).
The trial court has wide discretion in matters pertaining to discovery, and its decision will not be reversed absent an abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). However, an abuse of discretion may be found when there was an undue limitation of the appellant’s substantial rights under the prevailing circumstances. Id. The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Id. Permissible discovery necessarily revolves around the cause of action alleged by the plaintiff, and from this cause of action, the trial court must fashion its rulings on discovery. Id.
We believe that, on remand, Mrs. Turner should be permitted to depose the doctors who treated Dr. Danks for his bipolar disorder.
Reversed and remanded.
Hart and Vaught, JJ., agree.
These records are under seal.
This deposition was taken in a malpractice case filed against Dr. Danks in Texas. | [
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James R. Cooper, Judge.
The appellant, CNA Insurance Company, filed a declaratory judgment action against the appellees, James Ralph McGinnis and Vicky Lynn Hills, seeking an adjudication that it had neither the duty to defend a federal court action pending between the appellees, nor the duty to pay any judgment which might be entered in that case. This appeal follows a decision by the trial court that the appellant was not entitled to the declaratory relief sought; that the appellee McGinnis was entitled to declaratory relief on his counterclaim; and therefore he was entitled to a defense by appellant, as well as payment of any judgment up to the policy limits, plus a 12% penalty and attorney’s fees. We affirm.
The appellee Hills had filed suit against McGinnis, her step-father, in federal court, seeking $150,000.00 in damages for injuries allegedly received as a result of sexual assaults and abuse by the appellee McGinnis. The appellant refused to defend McGinnis, and then filed this action for declaratory judgment.
The appellant issued a homeowners policy to McGin-nis which covered the Fort Smith residence where the alleged sexual assaults took place. The policy period was from June 29, 1978 to June 29, 1979, during which time Hills was 16 years old. The appellant contended that there was no insurance coverage under its policy of insurance for the conduct alleged by Hills and that it had no duty to defend McGinnis or to pay any judgment which might be entered by reason of both a lack of coverage and the exclusionary provisions of the policy. The pertinent exclusionary clause in the policy states as follows:
Exclusions. There are certain instances which we do not intend to cover for liability. Under this policy, liability to others and medical expenses do not apply to personal injury or property damage:
1. Which is expected or intended by an insured.
The appellant had the burden of establishing that the acts which allegedly caused damage or injury fall within this .exclusionary clause. Riverside Insurance Co. of America v. McGlothin, 231 Ark. 764, 332 S.W.2d 486 (1960). Insurance policies must be construed liberally so as to resolve doubts in favor of the insured, both as to coverage and exclusions. First Heritage Life Assur. Co. v. Butler, 248 Ark. 1164, 455 S.W.2d 135 (1970).
On appeal, the appellant argues that the trial court erred in finding that it had a duty to defend McGinnis as well as pay any judgment entered in the federal court action pending between the appellees.
The chancellor, in a well-reasoned opinion, analyzed the law relative to an insurance carrier’s duty to defend and to pay damages, as well as the law concerning the interpretation of exclusionary clauses. He then found that, regarding the exclusion from coverage of damages resulting from intentional acts, the rule in Arkansas was that recovery was not precluded where the results of intentional acts were accidental or unintended. The trial court found that while McGinnis intended to commit the acts complained of, the appellant had not met its burden of proof in establishing that he either intended or expected any injury or damage to his step-daughter. We think the chancellor correctly analyzed the evidence and the law, and that his decision was correct.
Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981) is controlling. There the Arkansas Supreme Court stated:
We see no violation of public policy in allowing recovery in circumstances in which it is shown the results were accidental or unintended. Nor do we adopt the tort concept that cne intends the natural and foreseeable consequences of his acts so as to bar recovery from unintended results.
In the case at bar, there was no direct evidence presented which tended to prove that McGinnis intended to inflict harm or damage upon Hills. In fact, the evidence was to the contrary. Therefore, the only way to find that he intended harm to result would be to find that harm was a natural and foreseeable consequence of his acts, and that approach was specifically rejected in Talley.
We find no error.
Affirmed.
Mayfield, C.J., and Glaze, J., agree.
Corbin, Cloninger, and Cracraft, JJ., dissent. | [
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George K. Cracraft, Judge.
Harriett Boyd appeals from a decree of the Chancery Court of Conway County which dismissed her petition to set aside a tax title to a 20 acre tract of land and quieted title to that same tract in Vivian Hope Wingo, contending that the chancellor erred in his application of the law to the facts disclosed in the record. We agree.
It was shown that the title to the property in question had been in appellant’s family for over sixty years and that she had acquired an undivided one-fourth interest in it by inheritance more than thirty years ago. As she and her tenants in common were all non-residents of this State and rarely returned to it, they let their uncle E. C. Vaughn “work” the lands in exchange for his “looking out for it” for them. The appellant failed to pay the real estate taxes assessed on the land for 1970 and it was forfeited, sold and certified to the State. It was stipulated that the clerk had failed to make a certificate of publication and notice of the sale as required by Ark. Stat. Ann. § 84-1102 (Repl. 1980), but there were admitted into evidence copies of a Conway County newspaper showing that the notice had actually been published for the times and in the manner required by law.
The State conveyed its tax title to Mary Ann Meador in 1974. In 1976 Meador brought an action andón May 27,1977 obtained a decree from the Chancery Court of Conway County quieting her title to the land. Although the appellant was named a defendant in that action the court specifically found that she had not been actually or con structively served with notice and was not bound by it. There was no evidence that she was ever made aware of the entry of that decree.
In 1980 Mary Ann Meador conveyed her interest in the property to the appellee, Vivian Hope Wingo, who entered into possession of the lands under that deed under the circumstances outlined in this opinion.
It is clear from the record that between 1974 and 1980 the only acts of actual possession exercised over the property were those of appellant’s uncle E. C. Vaughn. Vaughn testified that for several years he had planted row crops on the land but later converted it into a meadow from which he cut hay through the fall of 1979. He testified that during that winter he went on the land and discovered someone claiming under Vivian Hope Wingo had planted a grain crop on the property and he therefore did not return in 1980. There was evidence from another witness supporting both Vaughn’s testimony as to his activities on the land and Vaughn’s statement that prior to the entry of Wingo’s tenant he had not been interfered with. It was shown that shortly after the State’s deed was issued Mary Ann Meador notified Vaughn that she had purchased a title to the property from the State and Vaughn had informed the appellant of that fact. The appellant testified that she had consulted an attorney and been advised that no action was required of her until her possession was actually interfered with.
Mary Ann Meador testified that shortly after her purchase of the State’s title she went on the land, staked the corners and assumed that this constituted possession. She stated that during this period she also advised Vaughn of her purchase and informed him that her father would thereafter be in charge of the land. However, there is no evidence that Mary Ann Meador’s father did interfere with Vaughn. Mary Ann Meador was also a non-resident who rarely returned to this State and, even though she paid taxes on it for the next six years, she denied any knowledge of the activities of Vaughn on the property.
It was stipulated and the chancellor specifically found that the clerk’s certificate of publication of the notice and sale of delinquent lands was never recorded as required by Ark. Stat. Ann. § 84-1102 (Repl. 1980). But he concluded that this was an irregularity which was barred under Ark. Stat. Ann. § 84-1118 (Repl. 1980) because the objection had not been raised within two years. He further concluded that this omission was not one which would invalidate the sale “since there was proof that the required notice was actually published.” We do not address the arguments of counsel as to whether appellant’s continued possession tolled the two year limitation contained in § 84-1118 because that section has no application to the defect here and extrinsic evidence of publication of the notice was not admissible to cure the defect. Section 84-1118 is as follows:
Action to test validity of proceedings — Limitation. — All actions to test the validity of any proceeding in the appraisement, assessment, or levying of taxes upon any land or lot, or part thereof, and all proceedings, whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this act, in the assessment, appraisement, levying of taxes, or in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this act, or irregularity or neglect of any kind by any officer having any duty or thing to perform under the provisions of this act, shall be commenced within two [2] years from the date of sale, and not afterward.
In a long line of cases collected in Johnson v. Johnson, 207 Ark. 1015, 185 S.W.2d 783 (1944) the Supreme Court has declared that this section deals only with irregularities of public officials in the performance of their statutory duties but has no application where the sale is invalid as a result of so substantial a defect as the omission of the required certification of the publication of notice of sale.
In Cecil v. Tisher, 206 Ark. 962, 178 S.W.2d 655 (1944) the court declared that the failure of the clerk to attach the certification of publication to the list of delinquent land is an invalidating omission which was neither subject to the limitation of § 84-1118 nor curable by extrinsic evidence that the notice was in fact published. There the court stated:
In Hurst v. Munson, 152 Ark. 313, 238 S.W. 42, this court said: 'The attack of appellees and their predecessors in the action on the validity of the tax sale is based, among other things, on the ground that the clerk’s certificate of the publication of the list of delinquent lands was not recorded as required by statute (Crawford & Moses’ Digest, § 10085, now § 13848 of Pope’s Digest [now Ark. Stat. Ann. § 84-1102]) before the day of sale. . .. This court has decided that the certificate required by the statute cited above must be placed of record prior to the day of sale, otherwise the sale is invalid. Logan v. Eastern Arkansas Land Co., 68 Ark. 248, 57 S.W. 798; Hunt v. Gardner, 74 Ark. 583, 86 S.W. 426. We have also held that the clerk’s certificate thus recorded is the sole evidence of the publication of the list. Hunt v. Gardner, supra; Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31, 96 S.W. 618. The record being the sole evidence, the facts cannot be proved by evidence aliunde.’
Appellant next argues that the suits of appellees were barred by the statute of limitation, as provided in § 13883 of Pope’s Digest [now Ark. Stat. Ann. § 84-1118]. We think this contention is untenable. In construing § 7114 of Kirby’s Digest, which is now § 13883 of Pope’s Digest, this court, in the case of Hewitt v. Ozark White Lime Co., supra, held that the failure of the clerk to make the certificate as to the publication of delinquent lands is fatal to the validity of the tax sale and that the defect is not cured by the two years statute of limitation, ... . (Emphasis supplied)
We conclude that the chancellor erred in declaring that the tax sale was valid and that appellant’s right to question it was barred.
Nor are the provisions of Ark. Stat. Ann. § 34-1419 (Repl. 1962) (formerly found in Pope’s Digest § 8925) available to the appellee. This section, in essence, shortens the period of limitation for the recovery of lands adversely possessed under deeds based on tax sales to two years. Two years actual adverse possession by the holder of the tax deed is required before the original owner’s right to recover the land is barred. Cecil v. Tisher, supra. The period of limitation begins to run, not from the date of the tax deed, but from the date actual possession is taken under it. Sims v. Petree, 206 Ark. 1023, 178 S.W.2d 1016 (1944); Hoch v. Ratliff, 216 Ark. 357, 226 S.W.2d 39 (1950).
The court further found that appellant had “actual knowledge of Mary Ann Meador’s claim of ownership in the property prior to 1980 but took no action to assert her claim of title.” He concluded that this failure barred appellant’s claim by laches and estoppel.
The record discloses that the only act of possession exercised by Mary Ann Meador was the placing of stakes in the corners in 1974. There was no evidence that she ever did anything else with the property or that she had made any improvements on it. To the contrary the evidence discloses that whatever possession was maintained was through appellant’s tenant Vaughn. It was undisputed that Vaughn was made aware of the tax title shortly after it was executed and that he notified the appellant of that fact. There was no evidence that Vaughn’s activities were interfered with by anyone until Wingo planted the grain crop. If the activities of Vaughn did not constitute possession, at least constructive possession was in appellant who had the legal title. Jackson v. Boyd, 75 Ark. 194, 87 S.W. 126 (1905); Union Sawmill v. Pagan, 175 Ark. 559, 299 S.W. 1012 (1927); Garrison v. Southern Enterprises, 245 Ark. 927, 436 S.W.2d 278 (1969).
.The mere fact that appellant was aware of appellee’s claim of ownership does not require that she take action on it. Until there was an interference with her actual or constructive possession there was no occasion for action on her part and the payment of taxes by another for the period of time involved here is not sufficient of itself to call for that action. Jackson v. Boyd, supra; Earle Improvement Co. v. Chatfield, 81 Ark. 296, 99 S.W. 84 (1907); Carmical v. Arkansas Lumber Co., 105 Ark. 663, 152 S.W. 286 (1912); Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S.W. 866 (1913). Where there is no intervening equity which of itself requires application of the doctrine of laches the owner will not be divested of his title to land unless he fails to assert such title for a period at least equal to that fixed by the Statute of Limitations. Walker v. Ellis, 212 Ark. 498, 207 S.W.2d 39 (1947). Mere laches does not of itself bar a plaintiff. Laches in legal significance is not mere delay, but delay that works a disadvantage to another. Before the doctrine of laches can be invoked, the delay of the true owner to take action must mislead and work a disadvantage to the other party in making his claim. Carmical v. Arkansas Lumber Co., supra. From our de novo review of the record we find no evidence of conduct on the part of the appellant which would bar her claim under the doctrines of laches and estoppel. This case is reversed and remanded with directions that a decree be entered not inconsistent with this opinion.
Glaze and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal from an order granting the appellee’s motion for summary judgment. The facts are essentially undisputed. On August 10, 1980, Mark Carter, the appellant’s decedent, was shot four times by Roger Right, the appellee’s insured, while both men were occupying a vehicle owned by Mr. Right. Mr. Carter was in the process of driving Mr. Right home following a party where Mr. Right had become intoxicated. The two were being followed by the only witness to the shooting, Mr. Bobby Cecil. Mr. Cecil stated in his affidavit that he was behind Mr. Right’s car when it stopped, apparently to allow Mr. Right to vomit. His testimony indicated that Mr. Right got a gun from beneath the car seat and several shots were fired. No one testified as to the reason for the shooting.
Both Mr. Carter and Mr. Right died as a result of the gunshot wounds they received. The appellant, administrator of the estate of Mark Carter, brought this action below to recover on the insurance policy the appellee issued to Mr. Right. The appellee’s policy contains the following provision:
“ACCIDENTAL DEATH BENEFIT. The company will pay the amount stated in the schedule in the event of the death of an eligible injured person which shall result directly and independently of all other causes from bodily injury caused by accident and arising out of the maintenance or use of a mptor vehicle as a motor vehicle, if the death occurs within one year from the date of the accident.”
The issue in this case was whether the death of Mr. Carter was causally related to and flowed from the maintenance or use of Mr. Right’s insured automobile. The trial court found that, as a matter of law, the death of Mark Carter did not arise out of the maintenance or use of a motor vehicle within the meaning of the above quoted provision of Mr. Right’s automobile insurance policy. Therefore, the trial court granted the appellee’s motion for summary judgment and dismissed the lawsuit. We affirm.
The Arkansas Supreme Court, in Hartford Fire Ins. Co. v. State Farm Mut. Auto. Ins. Co., 264 Ark. 743, 574 S.W.2d 265 (1978) dealt with a case involving similar circumstances. Although, as the appellant argues, the Hartford case involved somewhat different facts, we find Hartford per suasive. In Hartford, two children were playing in a camper parked in the driveway of the insured’s home while one stood outside. The engine was not running nor were the keys in the ignition. One child picked up a loaded gun which discharged causing the death of the child standing outside. The Court in Hartford quoted cases from other jurisdictions to the effect that “an injury caused by the accidental discharge of a gun held by a person who is in a moving or motionless vehicle is not an injury ‘arising out of the use of’ the vehicle.” Id. at 745.
The Hartford court went on to quote from 89 A.L.R.2d 153 which states:
All the cases agree that a causal relation or connection must exist between an accident or injury and the ownership, maintenance or use of a vehicle in order for the accident or injury to come within the meaning of the clause ‘arising out of the ownership, maintenance, or use’ of a vehicle, and where such causal connection or coverage is absent coverage will be denied.
The appellant correctly points out that Hartford does not stand for the proposition that all shootings in automobiles would be excluded from coverage. However, as previously noted, there must be a causal connection between the injury and the operation of the vehicle for there to be coverage. The only connection between the death of Mr. Carter and the use of the vehicle is that Mr. Right and Mr. Carter happened to be in the automobile when the shooting occurred. They could have just as easily been outside the vehicle. The evidence in this record would not have permitted the fact finder to determine that Mr. Carter’s death was causally related to the operation of the car.
On appeal, where the issue is the correctness of the trial court’s decision to grant a motion for summary judgment, this Court must review the evidence in the light most favorable to the party resisting the motion. Bourland v. Title Ins. Co. of Minnesota, 4 Ark. App. 68, 627 S.W.2d 567 (1982). Where all the pleadings and the affidavits show there is no genuine issue as to any material fact, the moving party is entitled to summary judgment. Rule 56, ARCP; Davis, Adm’x v. Lingl Corp., 277 Ark. 303, 641 S.W.2d 27 (1982); Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982). In the case at bar, we hold that the trial court correctly granted the appellee’s motion for summary judgment.
Affirmed.
Cracraft and Glaze, JJ., agree. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with manufacturing a controlled substance, i.e., marijuana. After a trial by jury, the appellant was convicted and sentenced to four years in the Department of Correction. From that decision, comes this appeal.
For reversal, the appellant argues that the affidavit upon which the search warrant was based was fatally defective, and that there was insufficient evidence presented at his trial concerning control of the premises upon which the marijuana was discovered to support his conviction.
The appellant argues that the affidavit was insufficient to support the issuance of the search warrant in two respects: first, the affidavit of Sheriff Gus Anglin, the Van Burén County Sheriff, failed to establish the reliability of the confidential informant or give sufficient basis for reasonable cause for issuance of the search warrant and second, that the search warrant did not properly describe the property to be searched to such a degree as to give the officers executing the warrant sufficient guidance in reference to what area was to be searched. The affidavit upon which the search warrant was based states:
The undersigned, being duly sworn, deposes and says: That a confidential informant observed green vegetable matter appearing to be marijuana on the 31st day of August, 1982. He informed me that he discovered the green vegetable matter on property located in the El/2 SE1/4, Sec. 30, T-12-N, R-14-W, in Van Burén County, Arkansas. This is the same confidential informant who helped us in the case of State versus Howard Broyles.
In prior cases, affidavits supporting search warrants had to pass a two-pronged test adopted by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964); State v. Prue, 272 Ark. 221, 614 S.W.2d 221, cert. denied, 454 U.S. 863 (1982). The affidavit had to reflect 1) some underlying circumstance showing the reliability of the informant and 2) some underlying circumstance from which the informant concluded that the items to be seized were where he said they were. However, in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), the Arkansas Supreme Court adopted the test for reviewing the sufficiency of such affidavits that the United States Supreme Court set forth in Illinois v. Gates, 103 S.Ct. 2317 (1983). Under this new totality of the circumstances test, the magistrate issuing the warrant must make a practical, common sense decision based on all the circumstances set forth in the affidavit. Under this test, “the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding’ that probable cause existed” to issue the warrant. Id. However, conclusory statements in affidavits which give no substantial basis for determining the existence of probable cause will not be accepted. There must still be enough information presented to the magistrate to allow him to determine that there exists probable cause. Id.
In the case at bar, the affiant, Sheriff Anglin, stated that a confidential informant, whose reliability had been proven in a previous case, observed plants which he believed were marijuana growing on a particular piece of property in Van Burén County. The Sheriff obtained a correct legal description for the property occupied by the appellant and his girl friend. Based on the test adopted by the Arkansas Supreme Court in Thompson v. State, supra, as defined in Gates, we find the affidavit sufficient to establish probable cause.
Next, the appellant argues that the State failed to prove his ownership or control of the property upon which the contraband was found. The only testimony of the appellant’s control over the property or dominion over the area in which the marij uana was found was based on the knowledge of Sheriff Anglin and two deputies executing the warrant. They testified that they were aware that the appellant was renting the property. The Sheriff further testified that he knew many of the county’s residents and where they resided. The appellant was one of these persons whom the Sheriff knew to be living in a certain location. When the search warrant was served the appellant was not present, but the woman with whom he was living was present. The tes timony shows that there were several trails leading directly from the house out into the outlying acreage where the marijuana was found.
We find substantial evidence to support the jury’s determination of the factual issue of control or dominion over the property by the appellant.
Affirmed.
Mayfield and Cracraft, JJ., agree. | [
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BIRD, Judge.
In this one-brief case, Appellant Tri-State Delta Chemicals, Inc., appeals the dismissal of its complaint to have a $67,918.26 judgment declared as a first Hen on real estate owned by appellee Michael Wilkison. Tri-State contends on appeal that the trial court erred in finding that the real property was Wilkison’s homestead. We affirm.
The stipulated facts of this case, set forth in a letter opinion of the Monroe County Circuit Court, are as follows. In September 1987, Wilkison obtained title by warranty deed to the real property at issue. He moved onto the property shortly afterward and continued to reside there through the time of the proceedings in circuit court. Wilkison married in March 1994. His bride, Sarah, and her then-minor son, Larry, lived with Wilkison on the subject real property until she separated from him about October 1998. The couple were divorced on January 7, 2000, but Larry, who was then nineteen years old, continued to reside with Wilkison.
On July 19, 1999, a consent judgment was entered in favor of Tri-State against Wilkison. On September 18, 1999, Tri-State filed its complaint in this action, seeking to impress a lien on the subject real property and to foreclose its judgment Hen, seH the property, and apply the proceeds to its judgment. In his answer, Wilkison admitted the judgment against him, but he contended that the real property upon which Tri-State sought to foreclose was his homestead.
At a hearing on its complaint, Tri-State argued that since Wilkison was neither married nor the head of family when he acquired the property, he could not acquire a homestead in the property by virtue of his marriage to Sarah. Tri-State argued further that even though Larry continued to reside on the property, Wilkison did not support him; therefore, Tri-State argued, Wilkison could not qualify as the head of a family merely because Larry continued to Hve with’him.
Article 9, Section 3, of the Arkansas Constitution provides:
The homestead of any resident of this State who is married or the head of a family shall not be subject to the hen of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific Hens, laborers’ or mechanics’ hens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.
Homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they were intended. Triple D-R Dev. v. FJN Contractors, 65 Ark. App. 192, 986 S.W.2d 429 (1999). It is generally accepted that the homestead exemption protects against all creditors except those mentioned in the constitution, and that the only way the exemption may be removed is by waiver or abandonment. Id. Once the property is occupied as a homestead, nothing more need be done to give the debtor the right to claim the personal privilege against a judgment creditor’s sale. Arkansas S & L v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982), (citing Snider et al. v. Martin, 55 Ark. 139, 17 S.W. 712 (1891)). The question of homestead and residence, being a question of intention, must be determined by the facts in each case, and the trial court’s finding of fact will not be disturbed unless it appears to be against the preponderance of the evidence. Smith v. Flash TV Sales & Serv, Inc., 17 Ark. App. 185, 706 S.W.2d 184 (1986), (quoting City Nat’l Bank v. Johnson, 192 Ark. at 945, 949, 96 S.W.2d at 482, 484 (1936)).
Following the hearing and the submission of briefs, the trial court agreed with Tri-State’s argument that Wilkison did not continue to be the head of a family simply because Larry continued to five with him. However, the chancellor found that Wilkison had acquired the real property as his homestead previous to the entry of the consent judgment in favor of Tri-State, and that the property did not lose its status as Wilkison’s homestead simply because he and Sarah had divorced. The court ruled that Arkansas law regarding a homestead exemption does not require that a landowner be married or head of household when he purchases the real estate. The trial court was correct.
Tri-State argues on appeal, as it did to the trial court, that no family relationship existed in this case because Wilkison was not married at the time he acquired the property; because at the time Sarah married him, her son was thirteen; and because any authority and control Wilkison had over his stepson was broken with the divorce. Tri-State points out that in Yadon v. Yadon, 202 Ark. 634, 635, 151 S.W.2d 969, 970 (1941), the homestead exemption was upheld for a widow who “was the one in authority and control of the family” after her husband’s death, and the “relationship [had] never been broken or disintegrated by the removal of all the children from the family circle.” We do not view this summary of the factual situation in Yadon as standing for the proposition that a person who has acquired the homestead right cannot claim the homestead exemption if he does not occupy a position of familial “authority and control” when the marriage ends.
Tri-State additionally relies upon Ross v. White, 15 Ark. 98, 689 S.W.2d 588 (1985), for the proposition that a homestead exemption cannot be claimed for real estate acquired before marriage. The Ross court stated that divorce did not deprive a man of his right to claim the homestead exemption where he had acquired and occupied the homestead while head of the family, and where he continued to reside on it. (Emphasis Tri-State’s.) Just as we find no requirement under Yadon that a divorcee claiming a homestead exemption must show continued “authority and control” in a familial relationship, we deduce no requirement from Ross that marriage must precede the acquisition of real estate under which a homestead is claimed.
As the supreme court explained in Butt v. Walker, 177 Ark. 371, 373, 6 S.W.2d 301, 301 (1928):
No one can acquire a homestead unless he is at the time a married man or the head of a family. But if, while a married man or head of a family, he acquires a homestead, he does not lose his right to claim it as exempt because his wife dies or because he is divorced, even though he may have no family living with him.
In the recent case of Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001), the supreme court again stated that divorce does not terminate the homestead right in the household head who continues to occupy the homestead/
Here, Wilkison acquired a homestead in his previously purchased real estate when his new wife and her son moved into his home. Under the Arkansas Constitution and the cases discussed above, we find no merit to Tri-State’s argument that Wilkison lost his right to claim the homestead exemption against judgment creditors because he and his wife later divorced.
Affirmed.
Robbins and Vaught, JJ., agree. | [
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L. GRIFFEN, Judge.
This appeal concerns a divorce decree that granted joint custody of fifteen-month-old Jacob Hobbs, with alternating weeks of physical custody, to his parents, appellant Heather Marie Hobbs and appellee Tad Oliver Hobbs. Appellant contends that joint custody was not warranted based on the evidence presented at trial. We agree that the record demonstrates that at the time of the final hearing the parties were not working in concert to reach shared decisions regarding the child. Accordingly, we reverse and remand this case to the chancellor for further action consistent with this opinion.
The parties separated after approximately one year of matrimony and two months following Jacob’s birth. Appellee filed a petition for legal separation, and appellant counterclaimed for divorce. In her counterclaim, appellant requested full custody of Jacob.
At a temporary hearing, the chancellor ordered joint custody with the parties alternating physical custody of the child weekly. The chancellor also ordered the parties to exchange Jacob on Mondays at a business parking lot in Magnolia. She directed the parties to cooperate concerning Jacob’s care and well being and to provide each other with a list of foods, types of diapers used, medicines, and any other information needed to ensure his proper care. This arrangement continued from the date of the temporary hearing until the final hearing. The chancellor also ordered the parties to enter into individual and joint counseling to help them get along and focus on the best interest of their child. Because the parties could not agree on a counselor, the court ordered the parties to seek consultation with Dr. Mike Fitts.
A final hearing occurred on August 16, 2000. During the hearing, appellant testified that she was twenty-two years of age, lived in Magnolia with her parents, and that she currently worked and attended school. She complained that appellee did not participate in the exchange of the child. As a result, appellant testified that she was forced to interact with her mother-in-law, with whom she has an acrimonious relationship.
Although the court ordered the parties to communicate on a weekly basis, appellant testified that she had to give written correspondence to appellee’s mother, who would read the correspondence and react negatively if she did not agree. Appellant also testified that she had tried, to no avail, to get appellee to participate in the exchange, but that when she tried to call him, he told her never to call him again and to speak with his lawyer. She acknowledged that she attended two individual sessions after the court ordered counseling, but admitted that she did not attend joint counseling sessions as ordered. Appellant contended that the joint custody arrangement was not working toward Jacob’s best interest because appellee did not correspond with her weekly and did not participate in the exchange.
The chancellor also heard testimony from Jacob’s pediatrician, Dr. Amy Albin, who confirmed that Jacob suffered from eczema, an allergic skin disorder, and that due to Jacob’s sensitive skin, he was more prone to diaper rash. However, Dr. Albin testified that she saw nothing that indicated Jacob was not properly cared for, and that overall, Jacob was a healthy child.
Appellant’s sister, Brandi Young, echoed the sentiments of appellant that there were problems in the exchange. Another witness, Ann Bridges, testified that appellant was an attentive parent. In addition, appellant’s father, Dr. James Young, testified that appellee never participated in the custody exchange, but instead played softball.
Appellee testified that he was twenty-six years of age and lived in El Dorado with his parents. He admitted that he had not tried to communicate with appellant since the temporary hearing and further reported that appellant only telephoned him twice in over a one-year period. Appellee stated that when he and appellant went to the counseling session, he suggested to the counselor that they initially undergo individual counseling. The counselor met with the couple separately on two different occasions, but was unable to complete a joint counseling session because appellant did not show up. Appellee testified that he participated in two exchanges with appellant in the time period between the temporary hearing and the final hearing. He stated that he had no definite working hours, and that he was on call on alternate weeks. Appellee testified that he participated in a church softball league, and that his mother kept his son while he worked or played softball. He relayed that it was “too fast” for him and appellant to have any communication, and it was hard for him to stomach the exchanges.
Appellee’s mother, Louise Hobbs, also testified at the hearing. She told the court that she and her husband exchanged Jacob with appellant because of appellee’s work schedule. Louise Hobbs testified that the circumstances surrounding the joint custody could be better, that the custody was going as well as could be expected under the circumstances, and that joint custody would be a problem when Jacob reached school age. She also acknowledged that she and appellant had problems communicating.
Also testifying on behalf of appellee were Jana Kay Moore and Regina Winget, who testified that they had witnessed appellee playing with Jacob, and that Jacob appeared to be a healthy, happy child. Several letters from one of the parties to the other concerning Jacob’s care were introduced into evidence, as well as photographs of him and two videotapes of the exchanges.
After the hearing, the chancellor entered an order that found that the child had been exchanged as directed but that communication between the two parties had been almost nonexistent. She further found that the parties harbored much bitterness toward each other. Yet the chancellor ordered the parties to share joint physical and legal custody of Jacob, to exchange him weekly, and to speak directly with each other on the day prior to the exchange to discuss Jacob and any special concerns they had about him. The chancellor also ordered appellee to personally exchange Jacob unless he was at work and for the parties to attempt to accommodate each other for any scheduling changes. This appeal follows.
The Joint-Custody Decision was Clearly Erroneous
Chancery cases are reviewed de novo on appeal. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). A chancellor’s findings are not reversed unless this court determines that the findings are clearly erroneous. See id. Special deference is given to a chancellor’s findings in child-custody cases because of the chancellor’s superior position to determine witness credibility, testimony, and the best interest of the child. See id.
Custody awards are not made to punish or reward either parent. See Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983). Instead, the primary focus is on the best interest and welfare of the child. See Thompson, supra. Our laws do not favor joint custody, unless it is clear that the parties have demonstrated a mutual ability to cooperate in reaching shared decisions concerning the child’s welfare. See Thompson, supra.
Thompson, supra, involved a joint-custody agreement concerning the parties’ two-year-old child, which was approved by the court. The agreement provided that the parties alternate physical custody of the child on a week-to-week basis. After two months, Mrs. Thompson filed a petition to change custody, alleging that the agreement was unworkable. Upon finding that a material change in circumstances had occurred, the chancellor awarded Mrs. Thompson custody of the child with liberal visitation to Mr. Thompson. Following de novo review, we affirmed the chancellor’s finding, noting that the record demonstrated that the parties were unable to cooperate regarding their child’s health care. See Thompson, supra. We stressed the importance of the record demonstrating that the parties were willing and able to cooperate in reaching shared decisions concerning the best interest of the child in order to justify an award of joint custody. See Thompson, supra.
In Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981), we affirmed a chancellor’s decision to grant joint custody. After observing that the evidence indicated that the parents shared equally in the child’s care, that they lived in close proximity to each other, and that each parent was stable, we agreed that the record supported the chancellor’s finding that it was in the child’s best interest to have equal contact and shared care by his parents. See Drewry, supra.
Contrary to the harmonious atmosphere presented in Drewry, supra, and notwithstanding the standard prescribed in Thompson, supra, the record clearly shows that the parties in the instant case failed to demonstrate “mutual ability ... to cooperate in reaching shared decisions in matters affecting [Jacob’s] welfare.” Instead, the record indicates that communication between the parties was virtually nonexistent as of the final hearing, and had been that way for over a year. This fact was established by both parties’ testimonies and is mentioned in the chancellor’s order. Significantly, when the chancellor ordered the parties to attend joint counseling sessions, the couple could not agree on a counselor. Consequently, the chancellor selected a counselor. However, the parties testified at the final hearing that they never attended joint counseling sessions, although these sessions were specifically designed to help the parties get along so they could focus on the best interest of their child. In fact, their interaction on Jacob’s first birthday, which fell on appel-lee’s scheduled week of custody, resulted in a physical altercation between appellant and appellee’s mother that occurred in Jacob’s presence and that frightened him and reduced him to tears.
Although appellee concedes that the parties have difficulty communicating with each other, he urges that we affirm the chancellor because the difficulty in communication can be ironed out with “a little maturity, a little time, and the direction of a court.” However, our law is well settled that the primary consideration in child custody is the child’s best interest at the time of the final hearing as demonstrated by the record. The time for parties to demonstrate the mutual ability to cooperate in reaching shared decisions in matters affecting a child’s welfare so as to justify an award of joint custody is before and at the hearing that is the basis of the joint-custody award, not some later time in an unknown future based on unproven facts. It is neither the responsibility nor the role of the court to accommodate the parties’ growing pains at the expense of a child. Given the parties’ demonstrated inability to communicate or cooperate in reaching shared decisions concerning Jacob’s best interest at the time of the final hearing, the chancellor’s finding that the circumstances warranted joint custody is clearly erroneous.
Accordingly, we reverse and remand for further action regarding custody based on Jacob’s best interest, not the parties’ future intentions. We do not prejudge the custody determination. Whether joint custody, custody to appellant, or custody to appellee is in Jacob’s best interest must be determined by the chancellor in the light of evidence established by the record when the custody determination is made. The record before us shows that appellant, appellee, and appellee’s mother havé been engaged in a war of wills. A legitimate concern in view of this clear reality is whether the enmity the parties have manifested renders either of them unsuitable to be awarded custody. While we do not decide that question, we cannot ignore the evidence that Jacob’s best interest has thus far been overshadowed by the previously mentioned acrimony of the adults responsible for his nurture and welfare. Neither should the chancellor ignore the evidence on remand.
Reversed and remanded.
Neal, J., agrees.
Stroud, C.J., concurs.
The parties were married on June 12, 1998, and separated on July 29, 1999. Jacob was born May 18, 1999.
At the time of the temporary and final hearings, the parties lived approximately thirty-five miles apart, with appellant living in Magnolia and appellee living in B1 Dorado. | [
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L. GRIFFEN, Judge.
Tracie Loudon Carter appeals from a chancery court order changing the surname of her minor daughter to that of the child’s father. She argues that the father failed to present any compelling facts to show that it would be in the child’s best interest to change her name. We disagree and affirm the chancellor’s order.
Appellant and appellee Cary Reddell had one child, Merritt Ann Loudon, in August 1996. In September 1996, the parties entered an agreed judgment of paternity that acknowledged appel-lee as Merritt’s father, awarded custody to appellant, set forth the level of appellee’s child support obligation, and ordered that the Bureau of Vital Statistics correct Merritt’s birth certificate to indicate appellee as her father. However, the agreed judgment of paternity did not order specific visitation or change Merritt’s last name.
Visitation was conducted by mutual agreement from 1996 to July 2000, at which time appellee filed a petition requesting that the court grant him standard visitation and that Merritt’s last name be changed from Loudon to Reddell. Appellant objected to the order and requested that Merritt’s child support be increased. A hearing on the matter was held on September 14, 2000. Appellant and appellee were the only witnesses who testified. Appellant moved for a directed verdict on the issue of the name change on the basis that appellee failed to prove that the name change would be in the child’s best interest. She also argued that appellee failed to offer evidence to support any of the six factors enunciated in Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999), which a court must consider when determining whether a name change is in the child’s best interest. The chancery judge denied the motion.
In a letter opinion issued September 14, 2000, the chancery judge ordered that appellee receive standard visitation, that child support would be awarded as requested, and that Merritt’s last name be changed to Reddell. The chancellor fisted the Huffman factors, and stated that in considering those factors, it was in Merritt’s best interest that her last name be changed. The chancellor subsequently entered an order to that effect on October 4, 2000. This appeal followed.
Appellant raises two points on appeal, but each relates to the sufficiency of the evidence. She argues that the chancellor’s finding was clearly erroneous because appellee failed to present any compelling facts to show that a name change would be in Merritt’s best interest. The best interest of the child is the dispositive consideration in determining whether a child’s surname should be changed. See Huffman v. Fisher, supra. Where a full inquiry is made by the chancellor regarding the implication of these factors and a determination is made with due regard to the best interest of the child, the chancellor’s decision will be upheld where it is not clearly erroneous. See Huffman v. Fisher, supra. A finding is clearly erroneous when, although there is evidence to support it, upon reviewing the entire evidence, the court is left with a definite and firm conviction that a mistake has been committed. See Huffman v. Fisher, supra.
Pursuant to Huffman, the moving party has the burden to demonstrate that a change is in the best interest of the child. In making this determination, the trial court should take the following six factors into consideration: 1) the child’s preference; 2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; 3) the length of time the child has borne a given name; 4) the degree of community respect associated with the present and proposed surnames; 5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and 6) the existence of any parental misconduct or neglect. Id. at 68, 987 S.W.2d at 274.
Appellant asserts that appellee offered no testimony during the presentation of his case regarding these six factors. She maintains that he merely asked the court to change Merritt’s last name. We disagree with appellant’s characterization of appellee’s testimony and hold that the chancellor was presented with sufficient testimony regarding the Huffman factors.
Appellee conceded that there was no provision for a name change in the agreed order of paternity. He testified that he has visited regularly with Merritt since she was born, although the duration of the visits has varied. His testimony in this regard was confusing, but apparently his visitation with Merritt has graduated from an overnight stay every two to three weeks to every other Saturday from 9:00 a.m. to 6:00 p.m. to regular weekend visits from Friday night until Sunday morning. Appellee stated that visitation has largely been determined by appellant and that she would not allow Merritt to visit him if appellant was upset with him.
Appellee also testified that Merritt was familiar with him and his family. He stated that visitation took place either at his house, his fiancé’s house, or his parents’ house. He stated he was capable of providing a clean and loving environment for her. Appellee said that Merritt loved staying with him and asked to stay the night when there was no overnight visitation allowed. Appellee pays for Merritt’s health insurance. He testified that he had regularly paid child support and would agree to paying an increased amount of child support.
Appellant also testified. She is married to Jason Carter but indicated that she had no intention to have Merritt use Carter as her last name. She did not object to appellee’s visitation or to Merritt staying overnight with his parents. However, she objected to changing Merritt’s last name. She stated that she and appellee were no longer dating when she discovered that she was pregnant. She testified that appellant signed Ins name on Merritt’s birth certificate, without objection, when that certificate reflected Merritt’s last name as Loudon. However, appellant admitted that at that time, appellee also asked when Merritt’s last name would be changed to Reddell and she told him that Merritt’s last name would be Loudon.
We hold that the chancellor did not err in finding that it was in Merritt’s best interest to change her surname to Reddell. Arkansas Code Annotated section 20-18-401(f) (3) (Repl. 2000) provides that where paternity of a child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. However, this statute does not require that a child’s surname be changed to that of the child’s father. See McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991).
Appellant appears to rely on Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), in which our supreme court held that there must be compelling facts to show that it is in the best interest of the child to change his surname. She argues that there are no compelling facts here. However; this standard was subsequently modified by the Arkansas Supreme Court in Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999), where the court stated the proper question on appeal is whether the party has demonstrated that such a change is in the best interest of the child, considering the Huffman factors previously noted.
Despite appellant’s assertion, there was sufficient evidence presented pertaining to the Huffman factors. The factors that are most relevant in this case are the length of time that Merritt has borne her given name; the effect of the change of her surname on the preservation and development of her relationship with each parent; and the difficulties, harassment, or embarrassment that she may experience from bearing the present or proposed surname.
It does not appear from the evidence that the name change will affect Merritt’s relationship with either parent. Each parent has established a bond with her since birth and that is unlikely to change based on the surname she uses. Thus, the dispositive factors in this case are those relating to the stigma or benefit to Merritt in changing her surname. Merritt was four years old at the time of the hearing and was registered to attend kindergarten at Montessori School. Although she has borne the Loudon name for four years, it appears that there would be very little stigma attached if she changes her last name now, at the beginning of her school attendance, where her classmates will subsequendy know her as Reddell.
In addition, appellant’s primary reason for objecting to the name change appeared to be that she desired Merritt’s name to be the same as her maiden name, because she was not married when Merritt was born. However, appellant has since remarried and has legally changed her last name to Carter. She testified that she has no plans to change Merritt’s last name to Carter. Merritt has no siblings; therefore, she is the only person in her immediate family known as Loudon. Moreover, her father’s name will not change; thus, until she marries, Merritt will always have the same last name as one of her parents if she adopts her father’s surname. See Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952) (affirming where chancellor found it was in the best interest of children to change their surname from their biological father’s name to their mother’s married surname to avoid confusion and embarrassment at school). Therefore, we hold that the chancellor did not err in finding that it was in Merritt’s best interest to change her surname.
In addition, we note that the other relevant evidence in this case supports the chancellor’s finding. The chancellor has the discretion to consider other relevant factors in addition to the Huffman factors when determining what surname would be in the best interest of the child. See, e.g., Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745 (2000). In addition to the Huffman factors, the chancellor in Bell considered the fact that the father filed a paternity action only nineteen days after the child was born, that he offered to pay child support and medical expenses, and that he and his mother have sought visitation with the child. See Bell, supra. Similarly here, the other factors that support the chancellor’s finding in this case are that appellant voluntarily acknowledged paternity shortly after Merritt’s birth and expressed an interest at that time that Merritt’s name be Reddell; he and his family have exercised visitation as regularly as appellant has allowed; he has paid child support and agreed to pay increased child support when requested; and he pays for Merritt’s health insurance.
On these facts, we hold that the chancellor did not err in determining that it was in Merritt’s best interest to change her surname to reflect that of her father, Reddell.
Affirmed.
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F. STROUD, Jr., Chief Judge.
Appellant, Sharp County Sheriffs Department (“Sharp County”), appeals the Workers’ Compensation Commission’s adoption and affirmance of the administrative law judge’s determination that appellant was liable for workers’ compensation benefits as a special employer for a compensable injury suffered by John Slater on January 6, 1998.
John Slater, who had a substantial work history in law enforcement, was hired by the Ozark Acres Improvement District (“District”) as a security guard for the District. At the time he applied for the position, it was made known to Slater that the District wanted to hire a person who could be commissioned by Sharp County as a deputy, thus allowing the District to have a guard with law enforcement authority. Within a month after being hired by the District, and after being interviewed by Sharp County Sheriff Sonny Powell and undergoing a background check and physical examination, Slater was commissioned as a Sharp County deputy sheriff.
This commission increased Slater’s pay as a District employee to a level commensurate with the level of pay of a Sharp County deputy sheriff; however, the District was the only entity that provided Slater’s salary. Although Sharp County gave the District a $l,000-per-year grant because it had a commissioned law enforcement officer in its employ, it was undisputed that none of that money was used to pay Slater’s salary. Sheriff Powell explained that they made a payment in the same amount to other entities that employed a security guard who became deputized and was available on back-up call under a similar arrangement. Not only was the District the only entity that compensated Slater, it also provided him a truck and his law enforcement equipment, with the exception of a borrowed deputy’s uniform provided by Sharp County after being requested by the District, which Slater was required by the District to wear while working. In addition to the uniform, the only items provided to Slater by Sharp County were a badge and an identification card.
After his commission as a deputy, Slater was subject to being called by Sharp County to assist on calls in the county that were outside of the District. However, he was only called as a last resort, and Sheriff Powell testified that Slater’s commission would not have been revoked if he did not respond to a call for assistance. Nevertheless, the District required that Slater respond to any calls for his assistance from Sharp County. The District continued to pay Slater for calls he answered outside the District during his regular duty hours and gave him “comp time” if he was required to respond to a Sharp County call while he was off duty.
On January 6, 1998, Slater was off duty when he received a call from the Sharp County Sheriffs Department asking him to respond to a call out in the county. Slater put on his deputy uniform and responded to the call. When he arrived and confronted the suspicious persons, he suffered unquestionably compensable injuries when he was attacked by one of the persons. The District originally paid Slater’s workers’ compensation benefits but later ceased payments, contending that Sharp County was Hable for his injuries. The administrative law judge found that Sharp County was liable for payment of workers’ compensation benefits as .a special employer, and the Commission affirmed and adopted that opinion as its own. Sharp County now appeals, arguing that it should not be considered a special employer liable for Slater’s workers’ compensation benefits or, in the alternative, that at the time Slater was injured, he was serving the interests of both Sharp County and the District and the workers’ compensation benefits should therefore be shared between Sharp County and the District. We agree with Sharp County’s contention that it should not be liable for paying Slater’s workers’ compensation benefits; therefore, we reverse the Commission’s decision.
The standard of review in workers’ compensation cases is well-settled. We view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty, supra.
Arkansas Code Annotated section ll-9-102(10)(A) (Repl. 1996) defines “employee” as:
[A]ny person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied; but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his employer, and-excluding one who is required to perform work for a municipality, county, or the state or federal government upon being convicted of a criminal offense while incarcerated.
In Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 759, 840 S.W.2d 177, 178 (1992), our supreme court, quoting from Larson’s Law of Workmen’s Compensation, discussed the requirements that must be met in order for a special employer to become liable for workers’ compensation when a general employer lends an employee to it. Those three requirements are:
(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.
Additionally, the supreme court also noted in Daniels:
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.
310 Ark. at 759, 840 S.W.2d at 178.
Sharp County contends that it cannot be held liable for Slater’s workers’ compensation benefits as a special employer because it does not meet any of the three requirements. While we find that Sharp County does meet the requirements of subsections (b) and (c), we agree that they do not meet the requirements of subsection (a) and are therefore not Hable for workers’ compensation benefits as a special employer.
There is not any question that at the time Slater was injured, he was performing services for Sharp County by answering a call out in the county for the sheriffs department. Although Sharp County argues that this also benefitted the District, the call to which Slater was responding was not in the District; therefore, it is difficult to see how Slater’s actions were benefitting the District at the time he was injured. Likewise, it was clear from Slater’s and Sheriff Powell’s testimony that Powell and other sheriff’s department officers with a higher rank than Slater had the right to control Slater’s actions while he was performing work for the department, although there was testimony that such authority was never asserted. Sharp County argues that because such authority was never asserted, that requirement was not met. The requirement does not mandate that such authority was asserted, merely that the special employer had the right to control the details of the work. Sheriff Powelí testified that he retained the right to take Slater’s commission as a deputy away from him if he believed that Slater was not performing at an acceptable level.
[T]he “control” which the special employer must assume need not extend to directing the technical details of a skilled employee’s activity. This would mean that skilled employees would hardly ever be employees under the act. What is essential ... is the right to control the time and place of the services, the person for whom rendered, and the degree and amount of services.
3 A. Larson, Worker’s Compensation Law § 67.05 (2000).
The sheriff department’s right to control Slater’s work was sufficient to meet the third requirement.
With regard to the first requirement, the District argues that there was “clearly a contract for hire” for Slater’s service as a deputy sheriff, contending that there was an express contract, given the interview process between Slater and Sheriff Powell. The District argues that at minimum, there was an implied contract for hire because Slater sought the commission as a deputy because of the authority and the increase in pay such a designation would provide him, and Sharp County approved the commission because it would receive the benefit of Slater’s back-up services as a deputy. The District contends that it is immaterial that it paid all of Slater’s salary.
We hold that there was never a contract for hire, either express or implied, because Sharp County did not pay Slater for his services. In 3 A. Larson, Worker’s Compensation Law § 67.05 (2000), it is stated:
The element of who pays the employee shrinks into comparative insignificance in lent-employee problems, because the net result is almost invariably that the special employer ultimately pays for the services received and the employee ultimately gets paid. But whether the special employer pays the general employer who in turn pays the employee, . . ., or whether the special employer pays the employee direct, the difference for present purposes is one of mechanics and not of substance. Of course, if this is not so — that is, if either the general employer or the special employer pays the employee and is not reimbursed — the fact of payment is strong evidence that the payor is the employer.
(Emphasis added.)
This is a case of first impression in Arkansas, but in Hill v. King, 663 S.W.2d 435 (Tenn. Ct. App. 1983), the Tennessee Court of Appeals held that a deputy who was killed in a plane crash while transporting a prisoner was not covered by Robertson County’s workers’ compensation when he was paid no salary, could work as little or as much as he chose, and even when scheduled to work, he was not obliged to report for duty. Tennessee’s definition of “employee” is the same as Arkansas’ definition, and the court of appeals held in Hill that in order to be considered an employee for purposes of workers’ compensation law, there must be an express or implied agreement for the alleged employer to remunerate the alleged employee for his services on behalf of the alleged employer. The court of appeals also stated:
There is also a sound reason for the requirement that the employment be “for hire.” . . . [I]n a compensation case, the entire philosophy of the legislation assumes that the worker is in a gainful occupation at the time of the injury. The essence of compensation protection is the restoration of a part of the loss of wages which are assumed to have existed. Merely as a practical matter, it would be impossible to calculate compensation benefits for a purely gratuitous worker, since benefits are ordinarily calculated on the basis of earnings. These, then, are the underlying reasons why compensation acts usually insist upon a contract of hire. . . . The word “hire” connotates payment of some kind. By contrast with the common law of master and servant, which recognized the possibility of having a gratuitous servant, the compensation decisions uniformly exclude from the definition of “employee” workers who neither receive nor expect to receive any kind of pay for their services.
663 S.W.2d at 440.
Because we hold that Sharp County did not enter into a contract for hire, either express or implied, with Slater, it cannot be said that the first requirement of the three-part test set forth in Daniels, supra, has been met. Likewise, because there was no contract for hire between Slater and Sharp County, Sharp County cannot be held Hable under the second theory expressed in Daniels, supra.
Because we have determined that Sharp County should not be liable for Slater’s workers’ compensation benefits, it is not necessary to address its alternative argument. We reverse and remand with direction for the Commission to enter an order for the District to be liable for Slater’s workers’ compensation benefits.
Reversed and remanded.
Pittman, Hart, Neal, and Roaf, JJ., agree.
GRIFFEN, J., dissents. | [
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Josephine Linker Hart, Judge.
Sylvia Morton appeals a probate court order that (1) denied her petition for the admission of a codicil to probate and the appointment of her as personal representative to the estate of Leon Vincen Holland, and (2) directed appellee to take into possession as estate assets two vehicles, which the decedent had purportedly conveyed to appellant. For reversal, appellant argues that (1) the probate judge’s finding that the decedent did not execute the codicil is not supported by substantial evidence, and (2) the probate court erred in finding that the two vehicles were assets of the estate. While we agree with appellant’s second point on appeal, we conclude that the probate judge’s finding that the decedent did not execute the codicil is not clearly erroneous. Therefore, we affirm in part, reverse in part, and remand for further action not inconsistent with this opinion.
Following Mr. Holland’s death on September 8, 1999, appel-lee, on October 4, 1999, filed a petition seeking the admission to probate a will dated February 12, 1998. The will named appellee as the personal representative and provided, inter alia, for a bequest of $10,000 to appellant. An order admitting the will to probate and appointing appellee as personal representative was filed on October 13, 1999.
Thereafter, appellant filed a petition, seeking the admission to probate a codicil altering the previously-admitted will. The codicil dated July 19, 1999, devised to appellant all of decedent’s “real estate, house, land, minerals and contents . . . .”
At a hearing on appellant’s petition, several witnesses testified as to the validity of the codicil. Included among those testifying were the individuals who signed as witnesses to the decedent’s execution of the codicil and two handwriting experts. Both attes-tors to the execution of the codicil testified that the decedent had, in fact, signed the document in their presence and had, at that time, verbally acknowledged his intention to give his home and land to appellant. However, other testimony revealed that appellant’s daughter-in-law notarized the codicil. Furthermore, appellant’s husband served as one of the witnesses to the codicil, and the second witness was the husband’s close friend. Finally, despite the testimonial evidence that the decedent had executed the codicil, two separate handwriting experts from the Arkansas State Crime Laboratory opined that the decedent was not the person who signed the codicil.
The probate judge found that the codicil was not executed by the decedent and denied appellant’s petition. He further ordered appellant to vacate the home and appellee to take possession of the home and its contents. Although appellant claimed ownership of two vehicles by virtue of a transfer of title to her by the decedent and there was no petition seeking relief, the probate judge ordered appellee to marshal the vehicles as assets of the estate. He also directed appellant to execute the necessary documents to effect conveyance to the estate. From the order embodying these decisions, comes this appeal.
I. Standard of review
Our standard of review in matters such as this is wellsetded:
Probate cases are reviewed de novo . . . [and] we will not reverse the probate judge’s findings of fact unless they are clearly erroneous. ... A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed.
Eddins v. Style Optics, Inc., 71 Ark. App. 102, 105, 35 S.W.3d 315, 317 (2000) (citations omitted); see also Ark. R. Civ. P. 52(a). Furthermore, as it may pertain to findings of fact, we defer to the superior position of the probate judge to weigh the credibility of the witness. See Blunt v. Cartwright, 342 Ark. 662, 671, 30 S.W.3d 737, 742 (2000).
II. Admission of codicil to probate
For reversal, appellant first alleges error based on a lack of substantial evidence to support the probate judge’s finding that the signature on the codicil was not that of the decedent. In support of her assertion, she argues that the validity of the proper execution of the codicil was established by overwhelming evidence and directs our attention to her testimony and the testimony of the witnesses to the codicil.
Appellant testified that she had lived at decedent’s residence since November 1995, when she began working for him as a housekeeper. In December 1996, she also became the primary care giver to the decedent and took over the care of his cattle. According to her, the decedent had been on oxygen since his bypass surgery in 1996, and he took “a lot” of medication. During 1999, although he was alert most of the time, he was either in his bed, wheelchair, or reclinen Admitting to handwriting the codicil, appellant explained that she produced the document by taking “verbatim” the decedent’s dictation and recording that information “word for word.”
Appellant’s husband, Joe Anderson, testified that he met appellant “four or five years ago” while mowing the decedent’s grass, but their relationship did not begin immediately. According to him, he was in decedent’s home to be paid for his mowing services and was asked by the decedent to witness the signing of the codicil, which the decedent, in fact, did. Finally, Anderson testified that in addition to the decedent and the two witnesses, appellant and her daughter-in-law, who notarized the witnesses’ signatures, were also present at the time the decedent signed the codicil.
The other witness to the codicil, Tommy Johnson, testified that on July 19, 1999, he allowed appellant to borrow his tractor so Anderson could mow the decedent’s grass. While accompanying Anderson to decedent’s home, Johnson was asked by the decedent to witness his signing of the codicil, which he, in fact, did.
Appellee responded to appellant’s evidence by presenting the testimony of two separate expert witnesses who independently reached the opinion that the decedent did not sign the codicil. In instances where the evidence is in conflict, we defer to the probate judge’s better position to weigh the credibility of these various witnesses. In this case, we conclude that his finding that the codicil was not executed by the decedent was not clearly erroneous and affirm his denial of appellant’s petition.
III. Possession of two vehicles
Finally, appellant argues that the probate court erred by instructing appellee to take into possession two vehicles, the titles to which the decedent had purportedly conveyed to appellant. Specifically, appellant argues that the probate judge’s action constituted reversible error because it granted relief to appellee on an issue that was improperly before the court. Appellee counters by arguing that appellant waived any dispute that the vehicles belonged to the estate when she failed to file an objection to an inventory that listed the vehicles as being a part of the estate. We, nevertheless, agree with appellant.
Section 10 of Act 140 of 1949, which is codified at Ark. Code Ann. § 28-l-109(a)-(b) (1987), states:
Every application to the court, unless otherwise provided, shall be by petition signed and verified by or on behalf of the petitioner. This requirement shall be mandatory but not jurisdictional, and noncompliance therewith shall not alone be grounds for appeal.
Stated differently, unless a separate means is given, all relief sought under the probate code must come in the form of a petition that is signed and verified by or on behalf of the petitioner; however, if the petition is not signed and verified, then the court still retains jurisdiction to hear the petition, and a party cannot use the lack of a signature and verification as a reason to appeal the lower court’s decision. The statute is unambiguous; accordingly, strict compliance is required. See Eddins, 71 Ark. App. at 111-112, 35 S.W.3d at 321 (citing Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999)).
Here, the only matter before the probate court was a petition that simply sought the admission of a codicil to probate. More important to our inquiry, no petition was filed that alleged that appellant held title to the vehicles and sought an order of possession of these vehicles. Notwithstanding this deficiency, the probate court made findings and granted appellee title and possession of the vehicles.
We agree that there is value in promptly resolving a controversy regarding who should have title to these vehicles; however, we cannot approve of such a summary proceeding inasmuch as it was beyond the plain meaning of Act 140 and deprived appellant of an opportunity to present a complete and thoughtful objection. On de novo review of this matter, we conclude that such an order failed to strictly comply with the unambiguous requirements set forth in Ark. Code Ann. § 28-1-109. Accordingly, we reverse the probate court’s order directing appellee to take possession of the aforementioned vehicles.
Affirmed in part, reversed in part, and remanded.
R.OAF, J., agrees.
Pittman, J., concurs.
Ostensibly, this witness was not married to appellant at the time the codicil was purportedly executed; however, he was married to appellant at the time of the hearing. | [
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Larry D. Vaught, Judge.
Appellant Charles Smith appeals the decision of the Arkansas Workers’ Compensation Commission denying his claim for benefits on the ground that he was not performing employment services at the time of his injury. Appellant was employed by appellee, the City of Fort Smith, as a dump-truck driver for the street department. On May 2, 2000, appellant reported for work and spent the day transporting refuse from a temporary dump to the city landfill in a truck owned by appellee. At the time of the occurrence, appellee maintained a temporary dump in the back yard of a city shop facility that was appellant’s base. The dump was a temporary location for limbs, dirt, gravel, and other debris removed from drainage ditches. The refuse was periodically moved from the temporary dump to the city landfill by street department employees on days when the weather was not conducive to them performing their regular tasks. At the time of the incident, appellee permitted its employees to remove and use the refuse for their personal use.
The accident that is central to this case happened near the end of appellant’s work shift when he was loading some old “waste” gravel into his own dump truck to take home and spread on his driveway. The accident occurred when appellant saw a concrete block that he did not want in the gravel being loaded into the truck by the driver of the front-end loader. Appellant climbed up the side of his personal truck to retrieve the concrete block when he slipped and caught himself with his left arm, injuring his shoulder. Appellant admitted that the exact task he was engaged in at the time of the accident involved throwing something he did not wish to take, specifically the concrete block, back onto the refuse pile.
Appellee initially accepted the claim as compensable and paid benefits, but later denied compensability and asked for an award against appellant for all benefits previously paid. The administrative law judge subsequently found appellant’s claim to be compensable and awarded permanent partial disability at forty-four percent. Appellee appealed to the full Commission, and appellant cross-appealed seeking permanent and total disability.
The Commission issued its decision on February 21, 2003, denying compensability because at the time of the accident appellant was loading gravel into his own truck to take home to spread on his driveway, and more specifically, was attempting to throw back a concrete block he did not want for his personal use, thus he was not performing “employment services.”
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id.
As the claimant, appellant had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § ll-9-102(4)(E)(i) (Repl. 2002). Arkansas Code Annotated section 11-9-102(4) (A) (Repl. 2002) provides that “compensable injury” means “an accidental injury causing internal or external physical harm ... arising out of and in the course of employment .... An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]” Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prod., 347 Ark. 811, 69 S.W.3d 14 (2002). We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” Daniels, supra. The test is whether the injury occurred “within the time and space boundaries of employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly.” Id.
Appellant argues that the test for employment services was met in this case. He states that the injury occurred during normal working hours at the appellee’s shop facility, and accordingly, the temporal and spatial boundaries of the test are met. The injury occurred when appellant was loading waste gravel for transport away from the temporary location, which appellant claims was: (1) directly advancing appellee’s interests; (2) generally required by appellee; (3) an inherently necessary part of his job.
Appellant claims that the Commission erred in finding that the task being performed by him at the time of the injury only benefitted appellant. He argues that appellee’s waste disposal burden was lessened while he benefitted by filling potholes in his driveway. Appellant asserts that if he had not loaded the gravel to take home with him, appellee would have had to have another employee take it to the land fill.
Appellant also cites as error the finding by the Commission that the task performed was not inherently necessary for his job performance. He states that both parties had witnesses who testified that hauling waste gravel from the temporary dump to the landfill was a normal part of the occupation to be conducted on rainy days when other activities could not be accomplished. He argues that the fact that the final destination of the waste gravel was his driveway is of no importance. Appellant also states that putting waste on the pile, specifically throwing a concrete block back onto the pile, is an inherent part of his job and is exactly what he was doing at the time of the injury. Appellant maintains that even if the Commission was correct in finding that throwing the concrete block back onto the pile was not an inherent part of his job, it was merely “incidental” to his primary activity of loading waste.
Appellee discusses several cases that state the rules for deciding when an employee is performing “employment services.” In White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), our supreme court held that when an employee is doing something that is generally required by his or her employer, the claimant is providing employment services. In White, the supreme court emphasized that the employer compelled the claimant to be in the circumstances in which he found himself at the time of the accident. In the instant case, although removing the refuse from the temporary dump to the landfill was at times generally part of appellant’s job, appellee never compelled him to remove the waste for his own benefit, much less climb up the side of his personal vehicle to remove unwanted waste objects like the concrete block.
In Collins v. Excel Spec. Prod., supra, the claimant left the production line in a meat processing plant to use the restroom. On her way, she fell and broke her arm. The supreme court relied on the same principles, citing White, supra, to find that claimant’s taking a restroom break was a necessary function and directly or indirectly advanced the interests of her employer. Likewise, in Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002), the supreme court concluded that a restroom break was both a necessary function and directly or indirectly advanced the interests of the employer.
Along the same line, in Olsten Kimberly Quality Care v. Petty, 328 Ark. 381, 944 S.W.2d 524 (1997), a nurse’s assistant whose job required her to care for patients in their homes was injured in an automobile accident that occurred en route from her employer’s office to a patient’s home. The claim was deemed to be compensable after the supreme court determined that travel, although an incidental activity, was an inherently necessary part of her employment. To the contrary, in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), a claimant was denied com pensation when she tripped over a rolled-up carpet while walking to a designated smoking area. The court reasoned that “although appellant’s break may have indirectly advanced her employer’s interests, it was not inherently necessary for the performance of the job she was hired to do.” Id. at 139, 970 S.W.2d at 304 (emphasis added).
While the removal of the waste by appellant may have advanced appellee’s interests, at least indirectly, the removal of it for his own personal use was not inherently necessary to his job. He could have spent the time removing it in appellee’s truck as he had been doing all day, and would not have been climbing up the truck to remove any specific waste he did not want. Under the ususal scope of his duties, it would all have been taken to the landfill. As appellee points out, it also was not necessary at the time and place of the occurrence for appellant to have been loading gravel at all. It was near the end of the shift and no additional loads were going to be hauled to the landfill that particular day. It certainly was not a necessary function for appellant to be loading the gravel for his personal use.
There is evidence to support appellee’s argument that appellant may have realized how tenuous his claim was because of the way he filled out Form N reporting the accident. He filled it out the day following the accident and indicated that the injury occurred “while getting out of [the]C/£y vehicle, caught self with arm, pulled shoulder out.” (Emphasis added.) The fact that appellant’s own injury report form incorrectly states that the accident involved a city vehicle rather than appellant’s personal vehicle casts doubt upon his credibility. The determination of the credibility and weight to be given a witness’s testimony are. within the sole province of the Commission. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).
Although at the time of his injury appellant was engaging in an activity that benefitted appellee to some extent, in order to be compensable the activity must also have been inherently necessary for the performance of his primary job activity. See Harding, supra. Whether or not an employee is performing employment services is a factual determination to be made by the Commission. Under our standard of review, we find that the Commission’s decision that appellant was not performing employment services at the time of his injury is supported by substantial evidence.
Affirmed.
Neal and Crabtree, JJ., agree.
Bird, J., concurs.
Hart and Griffen, JJ., dissent.
This policy was changed subsequent to appellant being injured and filing a claim against the city, and employees are no longer allowed to haul away gravel for their own . personal use.
Appellant’s injury occurred a little more than thirty minutes before his shift was to end, and he was still “on the clock” at the time of the accident. | [
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Wendell L. Griffen, Judge.
This case arises from a judicial construction of a clause in a property, child custody, and support agreement between appellant, Lynne Pittman (now Gordy), and appellee, Claude Pittman. Appellant argues that the trial court erred by interpreting the parties’ contract rather than giving effect to the plain language of the contract. We reverse and remand.
The parties were divorced injuly 1998. Prior to the divorce, they executed the property, child custody, and support agreement now in question. The trial court incorporated that agreement into the final divorce decree. In December 2001, appellee filed a petition to modify the provisions of that agreement as they related to spousal support. Appellant eventually filed a motion for summary judgment on that petition.
Before that litigation was put to rest by the trial court, the parties began a new disagreement over one particular clause of the existing property, child custody, and support agreement. Section Twelve of the Agreement states:
Husband [that is appellee] agrees to provide and be solely responsible for the payment of the costs associated with an undergraduate degree for the minor child of the parties. Said expenses shall include tuition, books, lab fees, room, board, and other legitimate educational expenses.
Appellant filed a petition for contempt and breach of contract on September 10, 2002. The petition alleged that appellee had failed to make payments according to Section Twelve. Appellee denied that he was in contempt or that he breached the agreement.
On November 3, 2002, a trial on the matter took place. Appellee testified that he acknowledged the text of Section Twelve of the agreement. He stated that their mutual daughter, Hayley Pittman, for whose benefit Section Twelve existed, was at Johnson and Wales University at the time of the hearing. He admitted that he had not paid for any of her tuition, books, room, or board, but stated that he had not done so because no one had informed him how much to pay. He sent her seven hundred dollars. He stated that he knew that his daughter’s apartment cost about $1,000 per month, but that he had not taken any action to determine any of the other expenses. Specifically, appellee acknowledged in court that under the agreement he was required to pay whatever it cost to put the daughter through school.
Appellee next testified that he, a veterinarian, made about $120,000 the previous year. Appellant is a teacher and makes approximately $20,000 per year. Appellee stated that he recently had become seriously ill and had hired his son, whom he paid about $60,000 per year. Appellee received $32,400 in disability and stated that his overall income had dropped to $92,000. He stated clearly that, if he “had to,” he “can afford to send my daughter to the school.” He also stated that the previous year he had sent his daughter to the University of Arkansas.
On cross-examination, appellee also stated that the cost of tuition at his daughter’s current school was about $18,000 per year. He expressed a willingness to pay whatever it was he paid “last year.”
Appellant testified that her daughter was pursuing a degree in culinary arts and restaurant management. She stated that her ex-husband, appellee, had agreed to pay all of their daughter’s educational expenses rather than paying continuing child support. Neither of the parties had agreed to modifying the agreement in question. Appellant then introduced a chart of their daughter’s living and school expenses, but we do not have that chart in the abstract or addendum. She also stated that their daughter had some scholarships and a grant to cover part of the cost.
The trial court subsequently ruled that Section Twelve did not clearly define the extent of the obligation to pay for the child’s education. The trial court reiterated appellee’s position that he had paid $12,000 the previous year and that this obligation should continue throughout the daughter’s undergraduate studies. The court found that Section Twelve spoke only in “general terms,” and that it used the words “legitimate educational expenses.” The trial court found further that those words implied “reasonable” educational expenses. Based on Section Eight of the agreement, according to which appellee was obligated to pay appellant, inter alia, the sum of $1,500 per month for support, maintenance, and education of the parties’ minor child, the trial court deemed Section Eight instructive concerning the parties’ intent at the time they formed the instant agreement and that $1,500 would be a reasonable sum to support the daughter.
The final, written order of the trial court reiterated that, under the agreement, appellee had to pay spousal support to appellant in the amount of $3,500 per month (for a period of 96 months from the execution of the agreement filed July 9, 1998). The order further stated that the daughter had attended the University of Arkansas for one year, for which appellee had paid all expenses, and then relocated to a culinary school at the east coast. The order reiterated that the language of Section Twelve is very general in nature and sets no limits to be expended. The order equated “other legitimate educational expenses” with “reasonable expenses.” The trial court emphasized in writing that its order did not constitute a modification of the agreement. The order fixed appellee’s obligation for education at $1,500 per month, for three years. From this order appellant now appeals.
Analysis
It is true that independent property settlement agreements such as the one involved here remain subject to judicial interpretation. Rogers v. Rogers, 83 Ark. App. 206, 121 S.W.3d 510 (2003); Sutton v. Sutton, 28 Ark. App. 165, 771 S.W.2d 791 (1989). In the Rogers case, the trial court found that the appellant had agreed to pay for “some other expenses” in addition to the child’s tuition and books not covered by scholarships, and ordered him to pay $300 monthly. This court disagreed and held that there was “simply no provision in the agreement for such an allowance, and no evidence to support this award.” Id.
However, even though the right to interpret existing agreements may exist, we still must follow the rules of contract construction. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000) . Where the meaning of the words is ambiguous, parol evidence is admissible to explain the writing. Id. When, on the face of the document, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent. Id. Conversely, a latent ambiguity arises from undisclosed facts or uncertainties of the written instrument. Id. The initial determination of the existence of an ambiguity in a written contract rests with the trial court, and if an ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the fact finder. Id. On appeal, then, we do not set aside a trial court’s finding of fact unless it is clearly erroneous, but the determination of whether a contract is ambiguous is a matter of law. Id. We do not defer tó the trial court’s determinations of law.
The trial court ruled that Section Twelve did not clearly define the extent of the obligation to pay for the child’s education. It found that Section Twelve spoke in “general terms” only and that the section used the words “legitimate educational expenses.” The trial court reasoned that those words meant “reasonable” educational expenses. Consequently, the trial cóurt referred to Section Eight of the parties’ agreement, according to which appellee had obligated himself to pay appellant, inter alia, $1,500 per month for support, maintenance, and education of the child. As such, the trial court entered an order that appellee had to pay $1,500 per month for the child’s college education.
The pertinent text of Section Eight reads as follows:
Husband shall pay to Wife the sum of one thousand five hundred dollars ($1,500.00) per month for the support, maintenance, and education of the parties[’] minor child. Husband’s support obligation has been determined by agreement of the parties and by referring to the Child Support Chart in effect at the time of the execution of the Agreement and shall become effective upon entry of a Decree of Divorce in this matter. . . . Husband’s support obligation will continue until any of the following events occur:
a. The death of the child;
b. The attainment of the child’s eighteenth birthday or graduation from high school, whichever occurs later;
c. The child becomes emancipated, as defined by the laws of the State of Arkansas.
First, Section Eight of the parties’ agreement has nothing to do with Section Twelve. By its plain language, appellee’s obligation to pay $1,500 in child support ceased when Hayley reached the age of 18 or graduated from high school, whichever occurred later. As such, Section Eight concerned itself with a different phase in her life. Section Twelve, on the other hand, concerns itself solely with Hayley’s post-secondary-school education. Therefore, the $1,500 mentioned in Section Eight cannot serve as a basis to construe a purported ambiguity of Section Twelve.
Second, Section Twelve is not ambiguous. To the contrary, Section Twelve is quite clear in its meaning. Appellee agreed, wisely or otherwise, to pay for “the costs associated with an undergraduate degree,” including “tuition, books, lab fees, room, board, and other legitimate educational expenses.” There is nothing ambiguous about these terms. The very last phrase, “and other legitimate educational expenses,” is admittedly open to interpretation. However, there is no reason to deem that phrase ambiguous where the rest of the language is clear and explicit, and where the proof is uncontradicted that appellee paid nothing toward Hayley’s tuition, books, room, or board, at the culinary school.
Even if we assume that this last phrase means “reasonable expenses,” if one follows the syntax of Section Twelve, we disagree with the conclusion by the trial court that “reasonable expenses,” which in the trial court’s opinion should be $1,500, ought to replace the entire Section Twelve. If “legitimate educational expenses” means “reasonable expenses,” then it follows that the end of Section Twelve reads: “including tuition, books, lab fees, room, board, and other reasonable expenses.” In other words, interpreting this last phrase does not relieve appellee of those expenses that precede the term in question. As such, allowing the trial court’s construction to stand would be tantamount to rewriting the agreement so appellee can walk away from a deal to which he had freely agreed, even though the deal itself is anything but ambiguous, merely because appellee has what amounts to buyer’s remorse.
Reversed and remanded.
Stroud, C.J., Baker, and Roaf, JJ., agree.
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Tom Glaze, Judge.
This appeal is from the circuit court’s affirmance of the Alcoholic Beverage Control (ABC) Board’s denial of appellant’s application for a retail liquor permit to operate a package store in Mountain Home, Arkansas. The appellant, Jack Fouch, applied for a permit on June 13, 1981. The administrator denied the application on July 29, 1981. Fouch appealed to the ABC Board; hearings were held before the Board on September 17 and October 21,1981. Pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1981), Fouch appealed to the Pulaski County Circuit Court, alleging the Board’s decision was not suported by substantial evidence. On September 28, 1982, the circuit court ruled in favor of the ABC Board. Fouch appeals that decision and raises three points for reversal:
1. The circuit court erred in finding that the ABC Board’s denial of the retail liquor permit was related to “public convenience and advantage.”
2. The circuit court erred in finding substantial evidence in the record of the proceedings of the ABC Board to support its denial of the applied for permit.
3. The circuit court erred in finding that the decision was not affected by errors of law and that the decision was not made upon unlawful procedures.
We find merit in appellant’s first two points; therefore, we need not reach the third.
The rules governing judicial review of decisions of administrative agencies are settled and are the same for both the circuit and appellate courts. This review is limited in scope; such decisions will be upheld if supported by substantial evidence and not arbitrary, capricious or characterized by an abuse of discretion. Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982). The substantial evidence rule applicable to these cases requires a review of the entire record and not merely the evidence which supports the Board’s decision. Id.; Snyder v. Alcoholic Beverage Control Board, 1 Ark. App. 92, 613 S.W.2d 126 (1981). Substantial evidence is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carder v. Hemstock, supra. The reviewing court may not displace the Board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo. The reviewing court may not set aside a board’s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. Id.
The jurisdiction of the court and the standard of review are set out in the Administrative Procedure Act, at Ark. Stat. Ann. § 5-713 (h) (Supp. 1981), under which this court may reverse or modify an agency decision if substantial rights of the petitioner have been prejudiced because the administrative findings are not supported by substantial evidence. The Administrative Procedure Act also requires that an agency set out in writing or state in the record its final decision or order. In addition, the Act provides:
A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings ....
Ark. Stat. Ann. § 5-710 (Repl. 1976).
We have reviewed the extensive record in this case, which includes the transcripts of two hearings before the ABC Board with numerous exhibits submitted by Fouch, the Board, and intervenor Kaut White. We have considered each of the Board’s eight findings in light of the evidence and cannot conscientiously find from our review that the evidence is substantial to deny appellant’s application for a license. The eight findings of the Board are set out below.
1. That there are presently sixteen (16) liquor outlets in Baxter County, and testimony taken at the hearing indicated that eight (8) of those outlets were in the Mountain Home area.
The Board’s first finding is misleading and erroneous. The Board’s figures do not accurately reflect the number of licensees in the area appellant applied to serve. Fouch applied for a license to operate a package store in an existing building on Highway 62 East in Mountain Home. The evidence shows that Mountain Home presently has only two retail outlets, Fiesta Liquor and 62 East Package Store. Of the remaining six in the Mountain Home area, only one is a retail outlet, Warehouse Liquors. The others are clubs or restaurants licensed to sell beer and/or wine. The evidence reflected that Fiesta Liquor is poorly stocked, with an inventory of only about $10,000, that Warehouse Liquor sells primarily to clubs and restaurants and that 62 East Package Store, owned by intervenor Kaut White, does the bulk of the business in the area. By White’s own testimony, he sells from $700,000 to $1,000,000 in merchandise each year.
2. That there are approximately 20,000 residents in the Mountain Home area, and the existing eight (8) retail liquor outlets are sufficient to serve the needs of that area.
The evidence showed that, although the official population of Mountain Home is only 8,020, the city has 20,000 residents year-round and greater numbers of visitors on a continuous basis. The city is a major tourist area for the state and a regional shopping area for north Arkansas. Testimony indicated the three major motels have 130,000 customers a year and significant numbers of visitors travel to Mountain Home on holiday weekends. Mayor Ron Pierce testified that Mountain Home has 40,000 to 50,000 residents four or five months a year and that float trips are now a year-round, rather than a seasonal business.
As we have already pointed out, the record does not reflect eight retail liquor outlets in the Mountain Home area. Several people testified they are unable to purchase a variety of wines and other alcoholic items in the liquor stores in town. Witnesses, as well as appellant, named specific brands the appellant had stocked in his Missouri store and plans to stock in his Mountain Home store which are not available presently in either store in town.
The only evidence to support the Board’s finding that the present outlets are sufficient to serve the needs of the area came from James Dollins, a liquor salesman and former ABC enforcement officer. Dollins opined that Mountain Home is “pretty well supplied” with liquor stores. He called both Warehouse Liquor and 62 East Liquor Store “heavily stocked” and Fiesta “medium, if even medium.” We cannot find that Dollins’ testimony alone is substantial evidence to support the Board’s Finding #2. Dollins’ remarks were conclusory; he gave no basis for his comparisons, nor did he indicate what he meant by the use of such terms as “pretty well supplied,” “heavily stocked,” or “medium, if even medium.”
The appellant subpoenaed the owners of the other liquor stores in town and requested that their inventory records be admitted into evidence, but the Board found the inventories irrelevant to the granting or denial of appellant’s license. Of course, such inventory records would have shown how well the liquor stores in the area were stocked and would bear on the question of whether these stores sufficiently served the area’s needs. Even without this information, appellant offered evidence indicating the existing stores are not serving the needs of the area because they do not stock items in quantity or quality that the citizens desire. This evidence was unrebutted except for Dollins’ unsupported conclusions. The record simply does not support that (1) there are eight retail outlets in the area, and (2) that existing outlets are sufficient to meet the needs of the area.
3. That the site of the proposed outlet is at the intersection of Highway 62 East and Cardinal Street in Mountain Home, which is a heavily travelled intersection which has no street lights and a retail liquor outlet at that location would greatly increase an existing traffic problem.
We do not agree with this finding. Again, the Board has stated a conclusion without facts to substantiate it. We do agree that the evidence indicated the intersection is heavily travelled. In fact, one of appellant’s strongest contentions is that his proposed store will serve the public convenience and advantage because of its location. We are unable to find any testimony relating to street lights; the evidence is contrary to the Board’s finding because street lights are obvious in the photographs of the proposed site which are a part of the record.
The fact that “a retail liquor outlet at that location would greatly increase an existing traffic problem” is a conclusion that is not substantiated by the record. Police Chief Doak testified a liquor store at that intersection would not create any more of a traffic problem than a restaurant or anything else would cause. Mayor Pierce testified that all of Highway 62 — including that part which runs in front of the 62 East Package Store — creates traffic problems, because it is the center of business in the town. He opined that appellant’s would be the best liquor store location in town. He pointed out the building is away from churches and is in a high-density, highly-travelled area. He pointed out that the location has ample parking and has exits onto both Highway 62 and Cardinal Drive.
Only two witnesses testified in support of the Board’s finding of an existing traffic problem. Representative Ed Gilbert opposed Fouch’s application based, in part, upon the fact that Highway 62, a two-lane highway, is overloaded with businesses and traffic. He could not testify to a personal knowledge of any accidents at that location, but he stated that the “possibilities” for having accidents there certainly exist. Sheriff Joe Edmonds testified that the location was at a bad intersection with a large amount of traffic and a high rate of accidents. He noted one occasion when his Department had been summoned to assist the City police when a van overturned near that intersection. On the traffic issue, we find Gilbert’s and Edmonds’ testimonies largely speculative and uncompelling when compared with the overwhelming evidence to the contrary.
A number of witnesses testified that the location would be ideal. Mr. Bill Waters, Councilman, called the traffic “the finest in the area.” Mrs. Fran Lowery, owner of a resort on the White River, testified that she made three to four trips a day to the shopping center and had never seen an accident there. The ABC Enforcement Officer who inspected the site found no traffic hazard. Mrs. Fouch, the applicant’s wife, researched files for accidents in Mountain Home for the one-year period prior to the hearing, and she found that no accidents had occurred at that shopping center.
4. That testimony at the hearing indicated that two (2) or three (3) of the existing retail liquor outlets in the Mountain Home area are having problems producing enough income to remain open and that another liquor outlet in the area would have an adverse economic impact on the marginal outlets that are presently operating.
This finding is irrelevant to the granting or denial of additional licenses. In the first place, the Board provided no basis for its finding by naming particular businesses or by showing its source for this information. Secondly, the statute provides for the ABC Board to promote public convenience and advantage in issuing permits, not to protect the interests of the owners who are presently licensed.
Even if the financial status of existing stores was a relevant factor for the Board to consider in granting or denying new permits, they apparently did not consider it relevant here. Appellant subpoenaed the other two store owners in Mountain Home and requested that they provide him with records of their inventories. The owners did not produce the requested records. Kaut White testified at the hearing before the ABC Board that his records were his private business which he would not produce. The ABC Board refused to enforce the subpoenas and ruled that the information in the inventories was irrelevant.
5. That another retail outlet in the Mountain Home area would tend to create additional law enforcement problems for the Mountain Home City Police and the Baxter County Sheriff’s Department, as indicated by their testimony and letters in opposition, and would possibly force existing outlets, who would undoubtedly lose business, to resort to illegal sales in order to remain in business.
The first part of this finding which relates to law enforcement problems is certainly relevant to the Board’s determination. However, the evidence does not bear out that portion of the finding. Police Chief Paul Doak testified by deposition and wrote letters which were included in the record. Although he has been the primary law enforcement officer for Mountain Home for about six years, he did not even allude to additional law enforcement problems resulting from granting appellant’s application. He discussed only a potential for additional traffic problems, but stated that a liquor store at that location would create no more traffic hazard than a restaurant or any other business would create.
Sheriff Joe Edmonds testified by deposition that he and his department would experience an “additional hardship ... as far as enforcement goes” if appellant’s license were granted, but he gave no basis for his conclusion. He also expressed his belief that too many liquor stores would force some smaller stores out of business and result in sales of intoxicants to minors as the owners competed for business. This testimony is apparently the basis for the latter part of the Board’s Finding #5, but such conjecture does not in any way factually support the finding as required by § 5-710, supra.
Mayor Pierce testified that he believed problems in Mountain Home resulted, not from liquor purchased in local stores, but from liquor brought into Mountain Home from elsewhere.
6. That the voters of Baxter County continue to be closely divided as to whether they are for or against the sale of alcoholic beverages in the County, as indicated by petitions and letters, both for and against this application, and another retail liquor outlet in Mountain Home, which would certainly create more law enforcement problems in the area, would have impact on the wet/dry issue in Baxter County.
First, we question the relevancy of this finding as it bears on whether or not appellant should be granted a permit. Even assuming that the finding is relevant, it simply is not supported by the evidence. Evidence was presented to indicate that the voters of Baxter County do not remain “closely divided” on the wet/dry issue. Appellant submitted results of the 1978 vote in two townships when the county voted to sell alcoholic beverages; the vote was 533 for wet and 723 for dry. When the same two townships voted again in 1980, 1,034 voted to stay wet and 657 voted to go dry. According to appellant, these two townships were major dry strongholds in Baxter County, yet the wet vote doubled while the dry vote decreased slightly.
Mayor Pierce testified that in his opinion the citizens of Mountain Home had come to accept the sale of liquor in their community. Both Sheriff Edmonds and Representative Gilbert testified that it was possible that additional retail liquor outlets would have an impact on the wet/dry issue in the next general election, but again neither offered a basis for his speculation.
7. That the ABC Division has been mandated by the State Legislature in Arkansas Statutes Annotated, § 48-301, to restrict the number of liquor permits in the State of Arkansas and is further empowered to determine whether the public convenience and advantage would be promoted by issuing any such permit.
In Syder v. Alcoholic Beverage Control Board, supra at 96, 613 S.W.2d at 128, we said:
We recognize that the legislature intended that the number of permits in the State of Arkansas should be limited, and that permits should be issued or revoked based on the public convenience and advantage. To carry out the legislative intent and the requirements of the statute the Board must look at factors which directly weigh on the public convenience and advantage.
The statute does not provide a guide for determining whether the public convenience and advantage will be served by granting or denying a license. The Board must “look at factors which directly weigh on the public convenience and advantage.” Id.
In the case at bar, the Board set out no findings which related directly to the public convenience and advantage in denying the permit. The Board merely stated a conclusion. On the other hand, appellant presented evidence that the public convenience and advantage would be served by his being granted a permit. For example, appellant testified that he had written his master’s thesis in business administration on market survey for a new product. He introduced a market survey which he had prepared to determine the feasibility of his operating a liquor store in Mountain Home at the location in question. His survey showed that Mountain Home serves as a shopping area for much of north Arkansas. In addition, the locale attracts tourists the year-round. The area is growing — the population increased 103 percent from 1970 to 1980, according to the 1980 census. Baxter County was the fastest growing county in the state from 1960 to 1975. Its projected population for 1990 is 45,508, according to a June, 1978 Arkansas Newsletter. A recent issue of Consumer’s Digest names Mountain Home as first on a list of “Ten Best Places to Retire.” These figures tend to indicate that the potential exists for Mountain Home to continue its already-expanding growth. None of appellant’s evidence was rebutted.
Fouch outlined in detail how he had determined that the liquor stores in Mountain Home do not provide the area with the quantity or quality of alcoholic items available to best serve the public. A number of witnesses testified that they were unable to find the items they wanted in Mountain Home or to find the items that appellant had carried in his store in Missouri. Fouch pointed out the convenience to be derived from his locating in the shopping center. He stated an intent to staff his store to cater to women. Fouch contended that his primary source of business would be those purchasers who continue to drive to the Missouri line to make their purchases.
8. That testimony of opposition [sic] as to particular brands of alcoholic beverages that could not be found in Mountain Home outlets has no bearing on the issue of whether the public is being adequately served, since there was no showing that the particular brands mentioned were registered for sale within the State by brand registration with the Alcoholic Beverage Control Division; that it appears to be sound business practice that a retailer would stock all brands that were justified by sales volume; that it would be impossible for any one retail liquor outlet in the State to stock even a small percentage of the thousands of different brands and variations of liquor and beer that are registered and authorized for sale in the State.
The availability or nonavailability of items which members of the community desire to purchase could have a bearing on whether the public is being served adequately. Although it may be true from a business standpoint that a retailer will stock all brands justified by sales volume, we find no basis in the record for the Board’s conclusion.
Appellee argues that substantial evidence exists to support the action of the Board in denying the appellant’s license; yet appellee fails to set out in its brief the facts it claims support the Board’s findings. However, appellee does argue that appellant demonstrated a complete disregard for authority (1) by evading service of process when the sheriff’s department attempted to serve him with interrogatories and requests for admission at the behest of intervenor Kaut White prior to the hearing below; and (2) by breaking the law when he operated a liquor store in Missouri.
Although it is undisputed that service on Mr. Fouch was not had, Fouch’s testimony that he was on a fishing trip in Missouri at the times the deputy attempted to serve him is equally undisputed. The deputy sheriff testified that he “assumed” appellant remained away from home to evade service, but he gave no evidence to support his speculation. Simply put, no evidence supports appellee’s assertion that appellant “has no respect for local law enforcement” or that he “attempt[ed] to evade service of process by a Sheriff’s deputy in Baxter County.”
Appellee also contends that appellant violated the law in two respects when he operated a liquor store on the Missouri side of the Arkansas-Missouri state line. First, appellee argues that appellant admitted that while he operated a liquor store in Missouri, he knowingly sold alcoholic beverages to Arkansas residents who then brought their untaxed liquor back into Arkansas for consumption. Although purchasers who bring untaxed liquor from Missouri into Arkansas violate the laws of this State, appellee cites us to no law appellant violated by his selling it to Arkansas residents.
Second, appellee alleged that appellant’s Missouri liquor license had been suspended for unlawful advertising, which would mean that appellant falsely stated on his application for an Arkansas license that he has never been convicted of a violation of any state’s laws relating to alcoholic liquors. Appellant was not convicted — nor even charged — with violating Missouri law. David Gohn, President of West Plains (Missouri) Bank, wrote a letter highly recommending Fouch to the ABC Board. Gohn related that because of misrepresentations made to Fouch by his precedessor-in-title of the liquor store, Fouch was in a bad situation with his Missouri store from the very beginning. According to Gohn, the situation degenerated to a point that the bank had to step in to protect its own position as mortgagee. Through foreclosure, the bank took over the store on October 1, 1980, and closed the store on December 6, 1980. On December 22, 1980, the bank received notice of a three-day suspension of the license because of unlawful advertising. By that time, Fouch was not the license-holder at all. Throughout his letter, Gohn was highly complimentary of appellant and the manner in which he operated his business. In addition, Gohn expressed the bank’s gratitude to appellant because, after the foreclosure, Fouch protected and liquidated a $65,000 inventory so that the bank experienced no loss. All of the evidence is contrary to the appellee’s allegations that appellant is or was a lawbreaker.
In the instant case, the reasons the opponents stated for opposing Fouch’s application, and hence the reasons stated by the ABC Board for denying the application, have no basis in fact, and we find no substantial evidence to support the Board’s findings. Therefore, we reverse the decision of the ABC Board and order that Fouch’s application for a permit be granted. As we previously indicated, we need not get into questions concerning the procedural and due process problems which appellant raised in his third point for reversal. In finding it unnecessary to discuss those numerous issues, we do not mean to infer that none of them has merit.
Reversed and remanded.
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Wendell L. Griffen, Judge.
This case arises from the criminal conviction of Glenn E. George of nine counts of possessing visual or print medium depicting sexually explicit conduct of minors. The conviction resulted in a sentence of ninety years’ imprisonment and $78,000 in fines. Appellant argues that the trial court erred in denying (1) his motion to suppress evidence seized pursuant to an invalid warrant; (2) his motion to suppress evidence not described in the warrant or in the affidavit incorporated into the warrant; (3) his motion to dismiss the charges for violation of the speedy-trial rule; and (4) his motions for directed verdicts for failure of proof on three counts. We hold that the search warrant was invalid because the affidavit upon which it was based failed to state a time reference for when the criminal activity occurred or the contraband to which it referred was observed. Accordingly, we reverse and remand.
Factual and Procedural History
In this case, the affidavit for a search warrant stated that B.T., fourteen years of age, reported to her mother on March 21, 2001, that appellant had provided her and some of her friends with alcohol and that she had seen nude photographs of girls about B.T.’s age in his apartment. On March 27, 2001, Hot Springs Police Department Detective Paul Norris interviewed B.T. and her mother and learned that, while in appellant’s apartment, B.T. saw photographs of nude girls that she knew to be fourteen to fifteen years of age on appellant’s computer. Subsequently, Norris also interviewed J.T., who confirmed that appellant had supplied the girls with alcohol at his apartment. J.T. also told Norris that she had found a video on appellant’s computer, while she was there, depicting a friend named K.T. dancing nude.
Norris then wrote an affidavit for a search warrant. In that affidavit, Norris alleged that at appellant’s specifically described residence,
there is now being concealed certain property, namely: the evidence associated with the producing, directing, or promoting sexual performances and employing or consenting to use of child in sexual performances.
Which are[:] evidentiary items in a sexual exploitation investigation and in direct violation of Arkansas State Statute 5-27-402 and 5-27-403.
And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That on 03-22-01 [B.T.’s mother] reported her fourteen year old daughter, [B.T.], revealed to her Glenn George provided alcohol to her and other friends and that she observed nude photographs of other girls she knows to be age fourteen or fifteen. [B.T.] was interviewed and stated Glenn George gave her an alcoholic beverage to drink and she saw nude photographs on George’s computer of girls she knows to [be] fourteen or fifteen years old. That a friend of [B.T.’s], [J.T.], was also interviewed and stated George provided her with an alcoholic beverage and she found a video on George’s computer of a friend, [K.T.], dancing nude.
The affidavit was signed by Norris. The issuing magistrate signed below, with a handwritten date of March 26, 2001. The affidavit was file-stamped April 2,2001. The warrant itself, however, also signed by the magistrate, shows the date of April 27, 2001, but was also filed on April 2,2001. In relevant parts, the warrant reiterated the descriptions and allegations contained in the affidavit, and otherwise expressly incorporated the “attached affidavit” by reference.
Norris executed the warrant that same day (March 26, 2001). Police officers found photographs of minor girls and videotapes, all of which appeared to the officers to be lewd material. Some of the material showed appellant engaging in sexual activity with some of the minors.
Appellant was arrested on March 28, 2001. His trial commenced on May 15, 2002. At a pretrial hearing, appellant moved to suppress the evidence seized in the search. One of his arguments was that the affidavit failed to establish a time frame when the observations leading to the allegations had been made. The trial court denied the motion to suppress, reasoning as follows:
[L]ooking at the four comers of the [affidavit for the search warrant], there is sufficient time frame alleged that the court could feel that there was just cause for the issuance of the warrant. The matters that were being sought were not consumables; they were not items that were normally moved in the course of illegal commerce; there’s nothing to indicate that the items would not remain in place for a substantial period of time; they were being kept by [appellant] for what appeared to me off the facts alleged for his personal use, primarily; and the time frame is set out on the warrant I think to give me sufficient cause to believe that this illegal material remained on his premises on the date that the warrant was issued.
Appellant also made a number of technical challenges to the warrant, none of them to any avail.
At the end of the State’s case-in-chief, appellant moved for a directed verdict on counts three through five of the criminal information. Count three alleged that appellant engaged in deviate sexual activity with another person not his spouse who was less than fourteen years old. Counts four and five alleged that appellant possessed visual or print medium depicting minors participating or engaging in sexually explicit conduct. Counsel for appellant stated the following:
[A]s to each of the counts that involve these young girls just baring their breasts for the video camera. At least two of them testified that they took them, and there was nothing to show that [appellant] knowingly possessed the items, even if they met the definition of sexual behavior. I don’t think they do, because they don’t qualify as a lewd exhibition. It’s the same sort of flashing behavior you see maybe in New Orleans for the Mardi Gras where they toss jewels and silly things like that. It’s more akin to mooning [than] to lewd behavior.
The trial court denied the motion. Appellant then rested and renewed his motion, which was again denied. The resulting convictions were based on the offense of possessing visual or print medium depicting sexually explicit conduct involving children.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence underlying his conviction of possessing visual or print medium depicting sexually explicit conduct of minors. He does so as his last point of error. However, out of concern for double-jeopardy, we must consider this point first. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003).
In his motion for directed verdict, appellant argued that there was insufficient proof of his knowledge and insufficient proof of the allegation that the contents of the visual or print media constituted in fact lewd exhibition. We note in passing that appellant now argues only the latter point. We also recognize that appellant did not offer a constitutional challenge to the statutes in question, and does not do so now on appeal.
We review challenges to the sufficiency of the evidence by determining whether substantial evidence, direct or circumstantial, supports the guilty verdict. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). Substantial evidence is evidence of sufficient certainty and precision that compels a conclusion and passes beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and consider only that evidence supporting it. Id.
The Arkansas Code forbids the knowing possession of “any visual or print medium depicting a child engaging in sexually explicit conduct.” Ark. Code Ann. § 5-27-304(a)(2) (Repl. 1997). Among the statutory definitions pertinent to the term “sexually explicit” we find the “[l]ewd exhibition of. . . [t]he breast of a female.” Ark. Code Ann. § 5-27-302(2)(E)(ii) (Repl. 1997). Our case law has defined “lewd” to mean “obscene, lustful, indecent, lascivious,” as well as “offensive to common propriety,” or “offending against modesty or delicacy.” Gabrion v. State, 73 Ark. App. 170, 173, 42 S.W.3d 572, 574 (2001).
In fact, our decision in Gabrion is quite to the point, in that that case involved a videotape depicting two minor girls. We noted in our opinion that the video tapes involved in that case contained “full frontal nudity.” Id. at 172, 42 S.W.3d at 573. In addition, the videotape showed Gabrion directing the girls to undress and “assume suggestive poses that showed off their breasts and buttocks.” Id., 42 S.W.3d at 573. We found that the jury could properly deem the videotape to be lewd and noted further that Gabrion apparently wanted us to ignore the fact that the girls on the tape were underage and not adults. Id., 42 S.W.3d at 574.
In the present case, we hold that the jury had substantial evidence before it to convict appellant of possessing visual or print medium depicting sexually explicit conduct of minors. The images in question were found within a videoclip on two CD- ROMs. The CD-ROMs were introduced at trial as State’s Exhibits A and B. Still images from those videoclips were introduced separately as State’s Exhibits E, F, and J. Among those images, one was labeled “[B.T.’s] Tits.” Most of the pictures show young girls displaying their breasts.
B.T. testified at trial that she was the girl depicted in the pictures referred to as Picture 37 and “[B.T.’s] Tits.” She also testified that the pictures were taken on August 10, 2000, and that her date of birth was June 12, 1986. Another witness identified herself and two other girls on Picture 166. She stated that she was fourteen years of age when that picture was taken.
In Exhibits E and F, the girls can be seen dancing and posing provocatively. In Exhibit J, the images mostly show the girls smiling and posing. However, the first image of that series is labeled “Goodbigdicksuckers.” That same image shows the girls with their mouths wide open. The captions of other images reveal titles such as “My pussy is so hot,” “Please fuck me,” and “I’ll fuck you or suck you.”
While appellant attempts to characterize the images as something akin to mere nude photos or something that could be seen at a Mardi Gras party, the evidence leads us to a different conclusion. The various labels, especially when taken together with the specific kind of posing, dancing, and frontal nudity, establish very well the lewd nature of the material. In particular we point out that appellant’s case really appears indistinguishable from Gabrion v. State, supra, where we held that frontal nudity of minors, along with suggestive posing and directing, was sufficient evidence for the same offense. Furthermore, the crucial fact, and most relevant for the conviction in both cases, remains that both this case and Gabrion involve minors, not adults. Thus, it was not error for the trial court to deny appellant’s motions for directed verdict.
Defective Affidavit
Appellant next argues that the affidavit for the warrant contained an insufficient reference to time, that the warrant itself contained an inadequate description of property to be seized, that the warrant contained a number of technical irregularities, and that property not specified in the warrant was seized. We reverse the trial court’s denial of the motion to suppress based on the insufficient time reference in the affidavit.
We review a trial court’s determination of questions of probable cause or reasonable suspicion de novo, based on the totality of the circumstances, reviewing the findings of historical fact for clear error and determining whether those facts gave rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Cummings v. State, supra. The magistrate who issues the warrant must make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001).
Where the affidavit for a search warrant makes no mention of the time during which the alleged criminal activity occurred or was taking place, the affidavit is considered insufficient to support the issuance of a search warrant, leading to the suppression of the evidence seized in the resulting search. Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). Pursuant to Ark. R. Crim. P. 13.1(b) (2003), some mention of time in the affidavit is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002). We have held that suppression is not required if the time-frame can be inferred from the affidavit itself. Id.
The State argues that appellant’s claim regarding insufficient time-frame is akin to what is known as a staleness claim. We disagree. A staleness claim does not challenge the complete lack of any time reference, or inference, within the four corners of the affidavit for the search warrant, but bases the challenge on the period of time that has passed between observation of the criminal activity or contraband — as set forth in the affidavit for the search warrant — and the execution of the search. In its argument, the State cites several cases that all correctly hold that, beside the time factor, we must consider other factors, such as the nature of the criminal activity involved and the kind of property subject to the search. See, e.g., Lacy v. United States, 119 F.3d 742 (9th Cir. 1997); United States v. Maxim, 55 F.3d 394 (8th Cir. 1995); United States v. Rugh, 968 F.2d 750 (8th Cir. 1992); Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001); Hause v. Commonwealth, 83 S.W.3d 1 (Ky. Ct. App. 2001).
None of those cases involve the situation we face. This case involves an affidavit that omits any reference to when the informant observed the alleged criminal activity and contraband in appellant’s home. The affidavit merely sets out the date when the informant told her mother about the allegations. Every case cited by the State, however, involves a true staleness claim, where the affidavit or warrant made a specific reference to a date when the criminal activity or contraband was observed. At issue in those cases was whether the nature of child pornography give a magistrate reason to believe that images would remain in an accused’s possession for longer periods of time so as to justify the various time gaps between observation of the alleged crime and the execution of the search warrant. See, e.g., Lacy v. United States, supra.
Thus, the State’s argument is inapposite to the claim involved in the instant case. We do not now need to distinguish between cases involving child pornography on the one side and drugs on the other. The nature of the contraband in question becomes an issue where the challenge goes to the staleness of the information contained in the affidavit. Instead, the case law we must apply to the instant case is clear. When an affidavit does not provide any reference of time for when the criminal activity or the contraband was observed, the affidavit fails. See Collins v. State, supra; Heaslet v. State, supra.
Under Arkansas law, a further question is whether the affidavit, within its four corners, provided a sufficient basis for an inference of time. See Heaslet v. State, supra. In Heaslet, we held an affidavit insufficient that mostly contained dates referring to the time when the affiant received a report, not when the activity was observed. Id. We held that the affidavit must provide direct or circumstantial evidence that the alleged contraband indeed is at the place to be searched. Id. We further stated that- circumstantial evidence alone that a suspect may be a drug dealer was insufficient evidence that anything is in his home. Id.
In the case at bar, the affidavit merely states the date when the informant, the minor and alleged victim, informed her mother of the allegations. There are no dates referring to when the alleged criminal activity or contraband was observed. Specifically, the affidavit does not state or suggest when appellant allegedly supplied alcohol to minors. It does not state or suggest when B.T. and/or J.T. saw nude photographs of minor-aged girls on appel lant’s computer. By analogy to Heaslet, we hold that the mere allegation that a suspect may be a child pornographer, without some time reference as to when the observations were made, is insufficient circumstantial evidence to conclude that contraband will be found at his home no matter when it may have been formerly observed. Consequently, the affidavit fails for lack of a time reference and the search warrant was invalid.
To hold otherwise would amount to judicial approval of a most unusual proposition, namely that mere conjecture concerning the time of observation of the contraband suffices under the Fourth Amendment of the United States Constitution to justify a search and seizure. As stated above, the law requires for an affidavit to include either a reference of time or a basis upon which one can draw an inference. Inference, however, is not the same as conjecture. The affidavit before us contains no information that would allow us to draw a permissible inference about when the minor saw the contraband in appellant’s home. Any assumptions that she might have seen the contraband shortly before she told her mother are unsupported by the facts as they were alleged in or could be inferred from the affidavit.
' Good-Faith Exception
The remaining question is whether we can uphold the trial court’s decision about the search and seizure pursuant to the good-faith exception found in United States v. Leon, 468 U.S. 897 (1984). The good-faith exception re-validates a police officer’s search and seizure even though the warrant underlying the search action is later found invalid. Id. However, the good-faith exception cannot cure certain errors, namely: (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is “so lacking in indicia of probable cause as to render official beliefin its existence entirely unreasonable”; and (4) when a warrant is so facially deficient “that the executing officers cannot reasonably presume it to be valid.” Id.
Our supreme court has held that the good-faith exception saves the warrant in question if we can determine from the four comers of the affidavit that the officers could infer from the affidavit itself with certainty the time during which the criminal activity was observed. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985). In that case, the affidavit lacked any direct reference to the time of observation. Id. There were no terms such as “recently” or “now,” and no reference to an urgent situation. Id. Accordingly, our supreme court declared the affidavit defective and the warrant invalid.
In the present case, we hold that the good-faith exception cannot save the search warrant because the affidavit was defective in that it, too, lacked any reference to the time of observation of the alleged criminal activity. As such, reliance on the warrant by the police officers executing the search warrant was unreasonable. To say otherwise would essentially mean that a police officer could reasonably rely on a search warrant based on an affidavit that does not contain any reference or ground for inference as to when the criminal activity happened or the contraband was observed. We see no legitimate reason to reach that conclusion in the face of a decade of court decisions requiring warrants to have such information and declaring them invalid without it. See Collins v. State, supra. Any reliance on a search warrant that is so fundamentally defective cannot be deemed reasonable under the Leon good-faith exception.
Speedy Trial
Finally, appellant claims error in the trial court’s decision to deny his motion to dismiss for lack of a speedy trial. Arkansas Rule of Criminal Procedure 28.1(b) (2003) requires the State to try a criminally accused within twelve months from the time provided in Ark. R. Crim. P. 28.2. Rule 28.2 generally provides for the twelve months to run from the time the charge is filed. However, periods of delay resulting from a continuance granted at the request of the defendant or his counsel must be considered when calculating the twelve months period. Ark. R. Crim. P. 28.3) (2003). Here, appellant was arrested on March 28, 2001. His trial did not start until May 15, 2002. However, appellant moved for a continuance on January 10, 2002. The trial court granted the continuance until May 15, 2002. Pursuant to our rules, we hold that there was no violation of the speedy-trial requirement.
Conclusion
The dissenting opinion expresses indignation at our decision to reverse appellant’s conviction and asserts that “[cjommon sense tells us that [his] illegal activity occurred recently and was likely continuing to occur.” As our opinion reports, however, the affidavit for the search warrant that the police used to seize the incriminating evidence from appellant’s residence does not provide a single objective clue about when the minor informants observed illegal evidence or activity. Apparently, the police failed to ask them basic questions of criminal investigation such as,’’When did you see this?” or “When did these things happen?” Had they done so and made the answers obtained from those basic queries part of the affidavit for the search warrant, the staleness cases relied on by the State would certainly be germane to our analysis and decision.
The Fourth Amendment does not permit judges to assume or imagine missing details into search warrant affidavits about when illegal activity occurred or was observed merely because we deplore criminal conduct, whether affecting minors or anyone else, or because of some subjective notion of “common sense” and “indignation.” Recognizing and respecting that reality is by no means a “hyper-technical approach” as claimed by our dissenting brethren. Rather, it keeps faith with time-honored principles and procedures that underlie and give life to the Fourth Amendment.
The fact that the police have the might to seize material from a person’s residence does not, under the Fourth Amendment, ever create the right to do so. Otherwise, the whole notion of probable cause, which the Fourth Amendment requires be demonstrated to an independent judicial officer before a search warrant can be issued, is a farce. Given, the record now before us and a line of court decisions from this court and our supreme court declaring that to omit temporal information in a search warrant application about when alleged illegal activity occurred or was observed renders a search warrant unconstitutionally and fatally flawed, we unapologetically refuse to treat probable cause and the Fourth Amendment with such disdain.
Reversed and remanded.
Gladwin, Neal, and Baker, JJ., agree.
Pittman and Robbins, JJ., dissent. | [
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Larry D. Vaught, Judge.
William Cox, administrator of the estates of Virginia Lantrip and John Lantrip, has appealed from an order of the Miller County Circuit Court dismissing his third-party complaint against appellee Jane Merle Keahey. This case was previously before us in Lantrip v. Keahey, No. CA01-150 (September 26, 2001), when we dismissed the appeal for lack of a final order. The facts and proceedings leading up to our earlier decision were as follows: ■
This is an appeal from an order granting the appellee/third-party defendant’s motion to dismiss on the basis of res judicata, claim preclusion, and issue preclusion. Appellant/third-party plaintiff contends that the trial court erred in granting the motion to dismiss. We dismiss the appeal because the order from which it is taken does not adjudicate all of the claims or the rights and liabilities of the parties and is, therefore, not a final appealable order.
On October 4, 1999, John Allen Cross and Glenda Jo Cross (the Crosses) filed a complaint against Virginia Maxine Lantrip, individually and as the administratrix of the estate of John Lantrip, deceased. The complaint alleged that the Lantrips conveyed, by warranty deed, a one-fourth interest in certain property located in Miller County, Arkansas, to the Crosses on December 14, 1999 [1993], The Lantrips reserved one-fourth of the mineral rights. John Lantrip claimed to have title to the property as the only child and sole heir of his father, Earl Lantrip, who died intestate.
The Crosses’ complaint further alleged that on June 26,1998, James and Brenda Cross and David and Agnes Cross filed a complaint (No. E-99-323-3) against the Crosses, alleging that they purchased a one-eighth interest in the same property the Crosses purchased from the Lantrips .James and Brenda Cross and David and Agnes Cross claimed to have purchased their one-eighth interest from Jane Merle Keahey, who executed a warranty deed conveying the property on January 7; 1998. Keahey also claimed to be the child and heir at law of Earl Lantrip.
For relief in the present case, the Crosses sought to compel Virginia Lantrip to intervene in case No. E-99-323-3 and to be required to defend their one-fourth interest in the property at issue. Virginia Lantrip filed an answer, and later she filed a third-party complaint against Jane Merle Keahey on November 15,1999. She alleged that Keahey was the natural born child of Mabel Lantrip, who was born prior to Mabel’s marriage to Earl Lantrip and had no blood relationship to Earl. Thus, Keahey was the half-sister of John Lantrip and sister-in law of Virginia Lantrip. Lantrip alleged that any interest claimed by Keahey in the property at issue is based on the improper claim that she is the natural born child of Earl Lantrip. Based on Keahey’s wrongful conveyance, Lantrip claimed to have been damaged in that she was forced to defend the lawsuit filed by the Crosses and that her reserved interest in the mineral rights had been depleted. Additionally, Lantrip claimed that Keahey tortiously interfered with her contract with the Crosses.
On April 4, 2000, Keahey filed a motion to dismiss Lantrip’s third-party complaint on the grounds that it failed to state facts upon which relief could be granted, that the claim was barred by res judicata, and that she was incompetent and without a guardian and thus could not be sued. In support of the motion, Keahey attached as exhibits, a motion for judgment on the pleadings and brief in support from case No. P-98-243-3, styled “ Virginia Lantrip, adminis-tratrix of the estate of John Lantrip, deceased, v. Jane Merle Keahey,” a reply brief, and an order of dismissal. The motion for judgment on the pleadings in case No. P-98-243-3 had been granted by way of an order of dismissal entered September 7,1999. The order of dismissal stated that the pleadings did not set forth a justiciable controversy between the parties and that Lantrip had no standing to raise the issue of heirship between herself as the administratrix of the estate of John Lantrip, deceased, and Keahey. Lantrip filed a response to the motion to dismiss, denying the allegations of the motion.
The trial judge granted Keahey’s motion, dismissing the third-party complaint with prejudice, on the grounds that the claim was barred by res judicata, claim preclusion, and issue preclusion. The order of dismissal was filed October 4,2000, and Lantrip’s notice of appeal was timely filed November 3,2000.
Lantrip v. Keahey, No. CA 01-150 (September 26, 2001), slip op. at 1-3.
On September 26, 2001, we dismissed the appeal as not final because it adjudicated fewer than all of the claims of fewer than all of the parties and the trial court had not followed the requirements of Ark. R. Civ. P. 54(b). We now address the facts and proceedings leading to the present appeal.
Virginia Lantrip died on April 1, 2001. On November 7, 2001, “Mrs. Lantrip” filed a motion for entry of final judgment in keeping with Rule 54(b). In response, Ms. Keahey noted that Mrs. Lantrip had recently died, that an alternate administrator of Mr. Lantrip’s estate had not been appointed, and that this action had not been revived. Appellant William Cox, the Lantrips’ son-in-law, was appointed administrator of Mrs. Lantrip’s estate on February 8, 2002. Plaintiffs John and Glenda Cross filed a motion to revive this action on February 13, 2002. Mr. Cox filed a motion on February 21, 2002, to revive this action on behalf of the estates of Mr. and Mrs. Lantrip. In that motion, he also requested that he be appointed special administrator of the estate of Mr. Lantrip for the purpose of litigating this case.
On June 26, 2002, the circuit court entered an order of revivor substituting Mr. Cox, as administrator of the estates of Mr. and Mrs. Lantrip, as the defendant in this action. On the same day, the court entered an “Order of Final Judgment and Dismissal,” amending the original order of dismissal and stating:
That this Court did on September 29,2000, enter its Order of Dismissal granting the Third Party Defendant’s Motion for Dismissal of the Third Party Plaintiffs Complaint with prejudice; that said Order of Dismissal was filed of record with the Circuit Court of Miller County,Arkansas, on October 3,2000; and that to date, there has been no entry of Final Judgment in this matter adjudicating all claims, rights and liabilities of all the parties under which said Third Party Complaint was filed;
That the Court did not state in its original Order of Dismissal entered on September 29, 2000, that said Order was a Final Judgment as to the claim of the Third Party Plaintiff against the Third Party Defendant and that there was no just reason for delay of any appeal from said Order because the likelihood of hardship or injustice that would occur if the Third Party Plaintiff was unable to effect an immediate appeal; and
That said Order of Dismissal should be amended and entry of a Final Judgment made herein, as to one or more, but fewer than all the claims or parties herein; that the Court makes said determination based upon the following find[ing]s:
(A) That there is an extreme likelihood of unnecessary-hardship or injustice to the Defendant/Third Party Plaintiff which would be alleviated by an immediate appeal of said Order:
(B) The absence of an immediate appeal would defeat the policy of judicial economy in that the Defendant/Third Party Plaintiff, could only resolve the issues presented therein by separate litigation; and
(C) That the Defendant/Third Party Plaintiff shall endure the injustice of having her rights, status of ownership interest in the mineral state reserved to her and the property which is at issue in the subject suit being uncertain; and that said uncertainty will have the full force and effect of having her property interest depleted without new production or due process of law.
Although the circuit court made specific findings to support an immediate appeal, it neglected to include a certification as required by Rule 54(b). Mr. Cox filed a notice of appeal on July 22, 2002, and the record was lodged with the supreme court clerk on October 18, 2002. On November 27, 2002, Mr. Cox filed a motion to stay brief time and to remand to the trial court for an order complying with Rule 54(b). We granted that motion, and the trial court entered an amended order of final judgment and dismissal that included the necessary findings and certification. The amended order was filed with this court as a supplement to the record on February 3, 2003.
Mr. Cox argues on appeal that the trial court erred in finding his claims to be barred by res judicata, claim preclusion, and issue preclusion.
Standard of Review
After being served with the third-party complaint, Ms. Keahey moved to dismiss for failure to state a claim and also raised the defenses of incompetency and res judicata. She based her res judicata argument on the trial court’s dismissal in Case No. P98-243-3. In finding that Mr. Cox’s claims were barred by res judicata, claim preclusion, and issue preclusion “as a result of the Order of Dismissal filed by this Court in cause No. P98-243-3,” the trial court obviously based its decision on a document that was outside the pleadings. Therefore, according to Ark. R. Civ. P. 12(b), the trial court implicitly treated the motion as one for summary judgment, and our review of that decision is governed by the standard of review appropriate for appeals from summary judgments.
In reviewing summary-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Alberson v. Automobile Club Interins. Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably fee drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Collateral Estoppel
The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. See Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). Issue preclusion is also known as collateral estoppel. Id. The doctrine of collateral estoppel bars the relitigation of issues of law or fact actually litigated in the first suit. Van Curen v. Arkansas Prof'l Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). When an issue of law or fact is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a . different claim. Id. Collateral estoppel is based upon the policy of limiting litigation to one fair trial on an issue. Id. Unlike res judicata, or claim preclusion, collateral estoppel does not require mutuality of parties before the doctrine can be applied. Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003). For collateral estoppel to apply, the following elements must be met: (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; (4) the determination must have been essential to the judgment. Id. Whether an issue was previously litigated has been interpreted very narrowly for purposes of collateral estoppel. Guidry v. Harp’s Food Stores, Inc., 66 Ark. App. 93, 987 S.W.2d 755 (1999).
In the dismissal entered in Case No. P-98-243-3, the trial court made no findings of fact or law other than to state:
The complaint of the plaintiff and the answer of the defendant do not set forth a genuine, justiciable controversy between these parties.The plaintiff has no standing to raise the issue of heirship as between herself as administratrix for the estate of John Lantrip, deceased, and Jane Merle Keahey.
Therefore it is CONSIDERED, ORDERED and ADJUDGED that the defendant’s Motion for Judgment on the Pleadings is hereby granted and the Petition for Declaratory Judgment filed hereby by the plaintiff is dismissed with prejudice.
Because the issues relevant to Mrs. Lantrip’s claims were not actually litigated or determined in that decision, we hold that'the court erred in applying issue preclusion in this case.
Res Judicata
Our next question is whether the court was correct in applying claim preclusion to Mr. Cox’s claims. The purpose of the res judicata doctrine 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. Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001). The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Van Curen v. Arkansas Prof'l Bail Bondsmen Licensing Bd., supra. Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Brandon v. Arkansas W. Gas Co., supra. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id. Res judicata is based upon the assumption that a litigant has already had his day in court. Dickerson v. Union Nat’l Bank of Little Rock, 268 Ark. 292, 595 S.W.2d 677 (1980).
Mr. Cox argues that the order of dismissal “with prejudice” in Case No. P98-243-3 was not on the merits. We agree insofar as this case is involved. Usually, dismissal with prejudice is as conclusive of the rights of the parties as if there had been an adverse judgment as to the plaintiff after a trial. See Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). However, there are limitations to the doctrine of res judicata, and we believe that the court erred in failing to apply an exception to that doctrine under the circumstances presented here. It is true that both this action and Case No. P98-243-3 were based on the same event — Ms. Keahey’s conveyance of a deed to property in which she, like Mr. Lantrip, claimed an interest as a child and heir of Earl Lantrip. Both lawsuits involve Ms. Keahey’s and Mr. Lantrip’s respective rights to this property, and in order to make that determination, the court would be required to determine whether Earl Lantrip was Ms. Keahey’s biological father. However, Mr. and Mrs. Lantrip’s alleged breach of warranty of title, on which this lawsuit is based, could not have been litigated in Case No. P98-243-3, which was dismissed as having been brought prematurely. When that case was dismissed, neither the Lantrips nor their estates had been sued on their warranties of title. John and Glenda Cross filed this action on October 4, 1999, which was a few days after Case No. P98-243-3 was dismissed by the same judge. Mrs. Lantrip filed her third-party complaint over a month later.
The Restatement (Second) of Judgments § 20(2) (1982) provides:
A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiffs failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied unless a second action is precluded by operation of the substantive law.
Comment k expresses the rationale for this section as follows:
A determination by the court that the plaintiff has no enforceable claim because the action is premature, or because he has failed to satisfy a precondition to suit, is not a determination that he may not have an enforceable claim thereafter, and does not normally preclude him from maintaining an action when the claim has become enforceable. The rule of this Subsection and the rationale behind it shade over into the rule that subsequent events may give rise to a new claim that is not barred by a prior judgment (see § 24, Comment/).
The rule stated in this Subsection is applicable whether the fact that the action is premature, or that a precondition has not been satisfied, appears on the face of the pleadings, as a result of pretrial discovery, or from the evidence at trial.
Comment / to section 24 explains the importance of a change of circumstances in determining whether claim preclusion applies:
Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.
It is clear to us that Mr. Cox has not yet had a full and fair opportunity to litigate the issues in question, and that the filing of this lawsuit by the Crosses was a subsequent event giving rise to a new claim that is not barred by the prior judgment. We therefore conclude that claim preclusion cannot apply here. Accordingly, the circuit court’s decision must be reversed and Mr. Cox’s claims must be remanded for trial.
Reversed and remanded.
Hart and Bird, JJ., agree.
The offensive use of collateral estoppel, however, should be available only in limited cases, and the trial court should be given broad discretion to determine if it should be applied. Johnson v. Union Pac. R.R., supra. In cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. Id. | [
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George K. Cracraft, Judge.
The appellees obtained a judgment in an amount in excess of $100,000 against W. C. “Bill” Brickey and Barbara Brickey and Multi-Minerals, Inc. on which writs of execution were issued in June 1982. The Sheriff, acting under one of the writs, levied on all the property located at Multi-Minerals’ mining site. Among the items seized are a 40 foot float-trailer and an Ingersoll wagon drill with stems. The appellant, John Velder, claiming ownership of those two items of personal property filed a petition for stay of execution pursuant to the provisions of Ark. Stat. Ann. § 30-305 (Repl. 1979).
At the conclusion of a hearing held on the petition as provided in Ark. Stat. Ann. § 30-308 (Repl. 1979) the trial court ruled that the burden was on the appellant to prove ownership of the seized property and that although he had met that burden with respect to the trailer he had failed in his burden of proving ownership to the drill. The appellant brings this appeal contending that the trial court erred in placing the burden on him to prove his ownership under the circumstances of this case. We find no error.
Ark. Stat. Ann. § 30-308 (Repl. 1979) provides that in a contest between the execution plaintiff and a party other than the judgment debtor claiming ownership of property levied on, the trial court shall “direct which party shall be considered plaintiff in the issue.” Under this statute the placing of the burden of proof is to be determined by the trial court according to circumstances. Where the levy is made on property located in a public place based merely on the assertion of the judgment creditor that it is the property of the j udgment debtor, the creditor could properly be required to carry the burden of proving his assertion. It is well settled, however, that possession of personal property is prima facie evidence of ownership. Golenternek v. Kurth, 213 Ark. 643, 212 S.W.2d 14 (1948); Norton v. McNutt, 55 Ark. 59, 17 S.W. 362 (1891). Prima facie evidence is deemed sufficient to establish a given fact if not contradicted, rebutted or explained by other evidence. Here the property in issue was in the possession of Brickey at the time of the levy and it was on this fact that the trial court determined that the burden of proof should be on appellant. In Norton v. McNutt, supra, the court held that it was not improper to place the burden on the intervenor even where not aided by prima facie evidence. We find nothing improper in the action of the trial court.
The appellant testified that the judgment-debtor owed him a substantial amount of money but had told him he could not pay the debt unless he had the necessary equipment to work his mine. The appellant testified that they delivered the drill to him under an agreement that he would pay them rent for its use and use it to make the necessary profits to discharge the debt. There was, however, introduced into evidence an invoice issued by the appellant which indicated that the item had been sold to Brickey and Multi-Minerals, Inc. There was also evidence from another witness that he had been told by the appellant that the item had been sold. As the appellant was a party to the action, his testimony could not be considered as uncontradicted. Livingston v. Livingston, 247 Ark. 1137, 449 S.W.2d 396 (1970).
The findings of fact of a trial court shall not be set aside unless clearly erroneous, giving due regard to the opportunity of the trial court to j udge the credibility of the witness. ARCP Rule 52(a). From our review of the record we cannot say that the finding of the trial court that appellant had failed to meet the burden of proof was clearly erroneous.
Affirmed.
Mayfield, C.J., and Glaze, J., agree. | [
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Andree LAYTON Roaf, Judge.
Harry A. Weymouth appeals from a summary judgment granted to appellee Johnny Lee Chism, dismissing Weymouth’s negligence complaint against Chism based on the running of the three-year statute of limitations. Weymouth had nonsuited a previous action filed against Chism in 1998, almost three years to the day after a 1995 vehicular accident. However, Weymouth had failed to serve this complaint upon Chism within the requisite 120 days. Weymouth refiled and timely served the complaint in 2000; Chism raised the statute-of-limitations defense in a motion for summary judgment. On appeal, Weymouth contends that the trial court erred in granting the motion because the sheriff who attempted service of the first complaint was deceived into believing that Chism had moved to another state. We affirm.
Weymouth and Chism were involved in an automobile accident on May 2, 1995. Weymouth filed a negligence action against Chism on May 1, 1998. Despite several attempts to serve Chism by certified mail and through the Pope County Sheriffs Office, Wey-mouth was unsuccessful in obtaining service on Chism within the 120 days required by Ark. R. Civ. P. 4(i), and did not seek an extension of time to do so. On October 9, 1998, after the 120 days had lapsed, Weymouth filed a motion for non-suit; the motion was granted by order dismissing the case without prejudice on July 1, 1999. Weymouth refiled the action on October 7, 1999, and timely served Chism on January 24, 2000. Chism moved for summary judgment, raising as an affirmative defense the statute of limitations. In his response, Weymouth denied that Chism was entitled to summary judgment and attached proof of his attempts to serve Chism the first complaint in 1998, including a warrant-service report from the Pope County Sheriffs Office stating “[mjoved new address is to Oklahoma (unknown where). Comes to Arkansas to visit in area every once in a «while.” The trial court granted the summary judgment, and Weymouth appealed.
On appeal, Weymouth argues that the trial court erred in granting the motion for summary judgment. Weymouth asserts that he should not be penalized for failing to file a motion for extension of time to have the summons served because he was deceived into thinking Chism had left the state. Weymouth analogizes this case to Eddinger v. Wright, 904 F. Supp. 932 (E.D. Ark. 1995), wherein the federal district court ruled that the statute of limitations had been tolled by the actions of the defendant’s father, who had been mistakenly served with the complaint, in misleading the plaintiff into believing that she had served the proper defendant.
The resolution of this case involves the interpretation of both Ark. R. Civ. P. 3 and 4(i). Rule 3 provides in pertinent part that “[a] civil action is commenced by filing a complaint with the clerk of the proper court. . . .’’In Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997), the supreme court held that the effectiveness of the commencement date pursuant to Rule 3 is dependent upon meeting the service requirement of Rule 4(i). Rule 4(i) provides in pertinent part:
Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.
We do not agree that Eddinger is analogous to this case, even assuming that Weymouth is correct in his assertion that the sheriff s office was somehow deceived into thinking that Chism had left the state, a fact not in evidence in the record before us. In Eddinger, the complaint was timely served upon the defendant’s father, who had the same first and last names and resided at the same address as the defendant. The father first filed an answer, then later moved for summary judgment based on a lack of service after the expiration of the time in which the plaintiff had to obtain proper service under Rule 4(i). Here there was no service upon Chism whatsoever, and no attempt by Weymouth to obtain an extension of time to do so as provided by Rule 4(i).
Moreover, in Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991), a case with very similar facts, the supreme court held that where service of summons is not made on a defendant within 120 days after the fifing of the complaint as required by Rule 4(i), the action is not commenced within the meaning of Rule 3, and the dismissal-without-prejudice language contained in Rule 4(i) does not apply if the action is otherwise barred by the running of the statute of limitations. Like Weymouth, the plaintiff in Green had refiled an action after dismissing his first complaint without making service within 120 days, and after the statute of limitations had run. Although the appellant in Green made no attempt to serve the initial complaint upon the appellees, and did not allege any deception on the part of the defendant in avoiding service, we conclude that the decision is nonetheless dispositive of the case before us. Weymouth knew full well that service of his first complaint had not been accomplished, and consequently, was not deceived into fading to comply with Rule 4(i).
Affirmed.
Pittman and Hart, JJ., agree.
See also Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). | [
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Larry D. Vaught, Judge.
In this Craighead County divorce case, appellant, who was granted custody of the parties’ children, appeals the chancellor’s decision prohibiting her from relocating to Little Rock. She also challenges the chancellor’s finding that certain assets were appellee’s nonmarital property and the chancellor’s calculation of appellee’s income for purposes of alimony and child support. We affirm the chancellor’s ruling on the property division and support awards, but reverse and remand his ruling on relocation.
Appellant and appellee were married in 1983, and the marriage produced three children. The children were all born in Little Rock, and the family lived there from the mid-1980s until 1996, at which time they moved to Jonesboro. Shortly after the move, the parties’ marriage began to deteriorate. Their relationship became very acrimonious and fraught with extreme discord, and the record is replete with evidence of almost daily conflict over numerous matters, large and small. Appellant filed for divorce in December 1997 and sought custody of the children. Appellee also sought custody, and he initially remained in the home following the filing of the divorce complaint. However, in February 1998, appellee left the premises and rented a house nearby. In conjunction therewith, the parties entered into an agreed temporary order giving appellant custody of the children and containing the following provision:
Neither parent shall remove the children from the County of Craighead for the purpose of changing the children’s residence without the written consent of both parties for a period of five years from the entry of a final decree of divorce and agree that this provision is to be included in a final divorce decree. The parents recognize that this provision does not obligate the court, but the parents agree that this provision is a critical provision of this agreement and mutually request that the court comply with this parental agreement.
In October 1998, after an unsuccessful attempt to settle the case, appellant asked the chancellor to modify the temporary order to allow her to move from Craighead County. She cited as reasons for her request the constant conflict between her and appellee, the number of people in the community that would be involved in the divorce proceeding, and the higher earning potential and better educational opportunities in larger cities. Appellant also amended her complaint to add adultery as a ground for divorce, based upon her claim that, since the original filing date, appellee had engaged in sexual encounters with a number of women, including a twenty-one-year-old college student. She alleged that appellee’s conduct had so humiliated her and the children that it would be in their best interest to move from Jonesboro.
During an eleven-day trial, the chancellor heard the testimony of over thirty witnesses and viewed over two hundred exhibits relating to the issues of custody, relocation, property settlement, and support. For the moment, we will concern ourselves only with the evidence that concerns the relocation issue. Appellant testified that, should she receive custody of the children, she would like to move with them to Little Rock for the following reasons: 1) Little Rock is closer to her parents and her sister, whom she visits three times per year; 2) she had a job offer at the Anthony School in Little Rock; 3) she wanted to further her education by pursuing a Ph.D. in School Psychology at the University of Central Arkansas; 4) her children were born in Little Rock, lived there for many years, and have friends there, as does she; 5) she has a strained relationship with her in-laws, who five near her in Jonesboro; and 6) she wanted to remove her family from the acrimony and embarrassment caused by the divorce, by appellee’s obsessive behavior, and by appellee’s relationship with a much younger woman. She said that, if she were allowed to move the 133 miles to Little Rock, she would facilitate appellee’s visitation by meeting him halfway between the two cities to deliver and pick up the children.
The children did not testify at trial. However, a psychologist, Dr. Phillip Hestand, spoke with all three of them, and his testimony revealed no strong feelings on their part one way or the other regarding a move from Jonesboro to Little Rock. Testimony from several witnesses indicated that all the children were doing well in school in Jonesboro, had made friends there, were involved in sports and activities, and visited frequently with their paternal grandparents.
Following the trial, the chancellor found that both parties were caring, loving, and attentive parents. However, he determined that appellant had been the children’s primary caregiver and was more emotionally stable than appellee. He referred to evidence that appellee’s obsessive disorder “tended to drive everyone around him crazy in trying to deal with him,” and to evidence that psychiatric tests revealed that appellee was depressed, paranoid, suffering from anxiety, and could be using drugs or alcohol. Based on those findings, the chancellor awarded custody to appellant and gave appellee standard visitation. The chancellor then turned to the question of whether appellant should be restricted from relocating outside Craighead County. He first addressed the import of the agreed temporary order:
[Appellant] now disavows the . . . provision of the Agreed Temporary Order stating that she never intended to agree to its terms and provisions. She was represented by very able and competent counsel who approved that agreement in her behalf and the testimony before the Court convinces the Court that she was aware of the provision. It may well be that, with the passage of time and all the unfortunate events that have occurred, she has now changed her mind and wants to move herself and the children from the scene of a failed marriage. Both parties recognize and agree that it is axiomatic that courts are not bound by any agreement the parties enter into regarding custody, support, or visitation although their agreement may tend to show their attitude regarding those matters.
Next, the chancellor reviewed this court’s decision in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), wherein we adopted a set of standards to be used in deciding parental relocation cases. In Staab, we established a framework that first provides that “where the custodial parent seeks to move with the parties’ children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move.” Id. at 134, 868 S.W.2d at 520. Once the custodial parent meets the threshold burden of showing that a real advantage will result from the move, the following factors must then be considered:
1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children;
2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent;
3) whether the custodial parent is likely to comply with substitute visitation orders;
4) the integrity of the noncustodial parent’s motives in resisting the removal; and
5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent.
With the Staab factors in mind, the chancellor proceeded to examine appellant’s reasons for wanting to move to Little Rock:
While it is true that [appellant] will be somewhat closer to her relatives in Texas, the distance . . . will only be 133 miles further if she remains injoneboro. She does have an abundance of friends in Little Rock but, on the other hand, she also has made a number of friends in Jonesboro and some of them rallied to her cause and supported her in her divorce action.
[Appellant] testified that she will have a job starting in August at the Anthony School [in Litde Rock] and wants to return to teach there and to place the children in school there. She also has prospects of a job in Jonesboro and, in fact, has a job at the present time earning $700.00 per month. She felt reasonably sure she could obtain better employment if she continued residing in Jonesboro and the Court feels confident that, considering her education and background, she should be able to obtain better employment.
[Appellant] definitely wants to complete her educational requirements for a degree, but she was rather uncertain about the advantages of [the University of Central Arkansas] as opposed to [Arkansas State University in Jonesboro], ASU is an excellent college of higher learning and the Court feels reasonably confident that she could obtain a similar degree at that institution.
Finally, the Court does sympathize with [appellant] in her desire ... to remove herself from Jonesboro and the scene of a failed marriage, a stressful relationship with her in-laws, and the embarrassment of [appellee’s] dalliance with a college girl. On the other hand, [appellant] won’t be living with [appellee], nor will she be living with his parents and that stressful part of her fife should be relieved. There was no evidence that his cavorting with the young female had ever been in her presence.
The chancellor then returned to consider the effect of the temporary order:
[T]he court feels that the prime and controlling consideration in enforcing or not enforcing that provision is what it considers to be in the best interests of these children. While they haven’t testified, there has been evidence before the Court indicating their feelings, wishes, and desires and none of the three have expressed any strong desire to return to Little Rock. The three of them appear to be well-satisfied in their present environment in Jonesboro. They are all doing well in school, appear to be involved in a number of extracurricular activities and they do have the close support of family and friends in this area. The Court also feels, as does [appel-lee], that an agreement between parties has to have some meaning and substance or all agreements that parties may make will be inoperative when one of the parties changes his or her mind.
Based upon these findings, the chancellor ordered that the children not be removed from Craighead County for the purpose of changing their residence for a period of five years.
A chancellor’s decision on relocation is reviewed de novo, but the chancellor’s findings will not be reversed unless they are clearly erroneous. See Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id.
Staab v. Hurst marked our first attempt at articulating a set of standards to be used by chancellors in parental relocation cases. In that case, a custodial parent sought permission to move from Port Smith to Texas in order to attend nursing school. The chancellor denied permission based on his findings that the move would make visitation with the noncustodial parent impractical, would reduce the child’s contact with her grandparents, and that the custodial parent could pursue other educational opportunities in the Fort Smith area. The chancellor seemed to emphasize the best interests of the child in making his determination. We reversed the chancellor’s ruling and recognized that, while the best interests of the children remain the ultimate objective in resolving all child custody and related matters, the standard must be more specific and instructive to address parental relocation disputes. Determination of a child’s best interests cannot be made in a vacuum, we said, but requires that the interests of the custodial parent be taken into account as well. We further acknowledged that, following a divorce, children belong to a different family unit than they did when their parents lived together. The new family unit consists of the children and the custodial parent, and what is advantageous to the unit’s members as a whole, to each of its members individually, and to the way they relate to each other and function together is in the best interests of the children.
Since we decided Staab, we have approved parental relocations in four published cases applying the Staab factors. In Wilson v. Wilson, 67 Ark. App. 4, 991 S.W.2d 647 (1999), we affirmed the chancellor’s decision to allow a relocation to California because the custodial parent felt she could find employment there. In Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000), we affirmed a chancellor’s decision to allow a relocation to Texas because the custodial parent had obtained a better-paying job with less travel. In Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001), we affirmed a chancellor’s decision to allow relocation to Florida because the custodial parent had a job opportunity there ánd would be near her mother. Finally, in Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d (2001), a case similar to the one now before us in that it involved an intrastate relocation, we reversed the chancellor’s decision to prohibit the custodial parent from moving to El Dorado from Fayette-ville. There, the parent wanted to move in order to take advantage of a job opportunity.
The proof offered by appellant in the case at bar is as compelling, if not more compelling, than the proof offered in the above-cited cases. The move would allow her to accept a job offer from the Anthony School and pursue an advanced degree at the University of Central Arkansas. While there were comparable opportunities in Jonesboro, the opportunities in Little Rock had distinct personal appeal to appellant. Her children had attended the Anthony School during their years in Litde Rock, and appellant had spent a great deal of time there. Further, the particular degree appellant hoped to pursue at UCA was somewhat different from a comparable degree offered by ASU. Although the difference was slight, it mattered to appellant. Additionally, the importance to appellant and her family of moving away from a scene of conflict, embarrassment, and obsessive behavior should not be denied. The psychological and emotional aspects of relocation can be as advantageous as economic or educational aspects.
The chancellor in the case at bar implicitly recognized that appellant stated legitimate reasons for relocating to Little Rock. However, he discounted those reasons on the basis that appellant would be just as well served by staying in Jonesboro. We disagree with the chancellor’s conclusion. We believe appellant met her threshold burden of demonstrating a real advantage to the family unit in moving from Jonesboro to Little Rock.
Once appellant met her threshold burden, it only remained for the chancellor to consider the remaining Staab factors. There was no finding by the chancellor that either party had improper motives in the dispute. Visitation was not likely to be hampered due to the short distance between Jonesboro and Little Rock and appellant’s testimony that she would meet appellee halfway. Finally, the same factors with which appellant met her threshold burden demonstrate that the prospective move is likely to improve the general quality of life for appellant and the children. We also note a circumstance peculiar to this case that weighs in favor of the move: appellant and her children would not be relocating to a strange environment but to the city in which the children were born and in which they had lived all their lives prior to 1996.
Appellee argues that the outcome of this case should be governed by Hickmon v. Hickmon, 70 Ark. App 438, 19 S.W.3d 624 (2000), the only post-Staab decision in which we have upheld a chancellor’s decision to deny permission to relocate. In Hickmon, the custodial parent sought permission to move to Arizona with her seven-year-old daughter. She had married a man who lived there and had obtained employment there. Nevertheless, the chancellor refused to allow her to relocate. We affirmed primarily on the basis that the psychologists who testified were united in their opinions that the move would inflict a loss on the child and would alienate the child from her father and all the family, friends, and pets that she loved. By contrast, there is no testimony in this case that the move would have such a detrimental psychological effect on the children.
Finally, we address the effect of the agreed temporary order on the matter of relocation. As the chancellor recognized, temporary custody agreements made in contemplation of divorce are not binding on the courts. See Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954); Servaes v. Bryant, 220 Ark. 769, 250 S.W.2d 134 (1952); Burnett v. Clark, 208 Ark. 241, 185 S.W.2d 703 (1945). However, a temporary agreement is of some importance in showing the parties’ attitudes. Henkell v. Henkell, supra. The chancellor in this case did not go so far as to actually enforce the temporary agreement, but he gave it considerably more weight than a mere indicator of the parties’ former attitude on relocation. He declared that the agreement “must have some meaning and substance” or it would simply become “inoperable” when a party changed his or her mind. Once the question of relocation was presented to the chancellor for decision, it was his responsibility to make the determination of whether the relocation was proper under the standards set forth in Staab. The temporary agreement should have been viewed as nothing more than an indicator that, at some point, appellant and appellee shared the attitude that the children should not be moved from Craighead County for a period of five years after the divorce.
Based upon the foregoing, we reverse and remand the chancellor’s denial of permission to relocate and hold that appellant is free to move to Little Rock.
We turn now to the question of property division. Appellee contended at trial that the following property was either a gift from his parents, an inheritance from his grandparents, or property acquired in exchange for property acquired by gift or inheritance: 1) a Charles Schwab IRA account created from an account appellee owned prior to marriage and funded with gift and inheritance money; 2) four hundred shares of Arkansas National Bancshares stock purchased with gift and inheritance money; 3) a one-third interest in Woodland Hills, Inc., given to him by his father; and 4) property owned joindy with his two brothers as joint venturers and as partners in Jonesboro Investment Co., LLC. The chancellor agreed that the property was nonmarital pursuant to Ark. Code Ann. § 9-12-315(b) (Repl. 1998), which exempts property acquired by gift and inheritance, property acquired in exchange for property acquired by gift or inheritance, and the increase in value of such property, from the definition of marital property.
With respect to the division of property in a divorce case, we affirm the chancellor’s findings of fact unless they are clearly erroneous. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000).
According to appellant, the property at issue should have been declared marital property because she and appellee agreed that she would give up her career in exchange for the two of them sharing all assets, and because appellee represented on tax returns and loan applications that the property was jointly owned, and he paid tax liabilities on the property with joint funds. She characterizes her argument as an estoppel argument. The elements of estoppel are: 1) the party to be estopped must know the facts; 2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; 3) the party asserting estoppel must be ignorant of the facts; and 4) the party asserting estoppel must rely on the other’s conduct to his detriment. Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987).
We have found nothing in the record, as abstracted, to indicate that appellant made an estoppel argument to the chancellor. Although she presented evidence of her claim that she should be entided to one-half of the property at issue, she did not inform the chancellor that she was pursuing an argument based on the theory of estoppel. This is further evidenced by the fact that the chancellor did not mention the estoppel theory or make a ruling on it in his lengthy twenty-seven-page letter opinion, his subsequent letter opinions, or in the find decree. Thus, we are unable to consider appellant’s argument because we do not address arguments made for the first time on apped or theories upon which the chancellor has not ruled. See Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). In any event, appellant’s proof of estoppel falls short on the third element because there is ample proof that she
knew appellee received gifts from his family and owned property with his brothers and that he kept these assets separate from marital assets.
A second property-division issue is raised with regard to the Schwab IRA mentioned above. Appellee testified that he funded the IRA. with gifts and inheritance money. Appellant argues that IPA contributions may only be made with earned income. Thus, she concludes, the IRA should be considered marital property. She cites no authority for that proposition. We do not address points on appeal that are not supported by convincing argument or authority. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
The final issue concerns the computation of appellee’s income for purposes of alimony and child support. The chancellor awarded appellant $1,600 per month in alimony and ordered appellee to pay $2,026 in child support. He based those figures on an exhibit provided by appellee that projected appellee’s 1998 income as $152,705. Appellant argues on appeal that $20,000 should have been added to that figure because, while the divorce was pending, appellee did not draw $20,000 out of the joint-venture account as he had in the past. Appellant has not fully developed this issue or satisfactorily explained the basis for her argument such that we can make a studied consideration of it. However, based upon the figures we have been provided, we are unable to say that appellee’s 1998 income, upon which the awards were based, is artificially deflated such that reversal is warranted.
The chancellor’s decree is affirmed as to the property division and support awards and reversed and remanded on the relocation issue.
Affirmed in part; reversed and remanded in part.
BIRD, J., agrees.
Robbins, J., concurs.
Appellant does not argue that she is entitled to a portion of any increase in the value of the property by virtue of her own contribution. | [
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WENDELL L. GRIFFEN, Judge.
Appellant Elwin Hoover and appellee Gae Von Hoover were divorced by a decree entered May 18, 1999. The chancellor divided more than $1,500,000 in marital property between the parties and awarded appellee $2,000 per month alimony for a period of ten years. He also awarded appellee custody of the couple’s two minor children and ordered appellant to pay $3,500 per month child support. On appeal, appellant argues that the property division was inequitable and that the chancellor erred in calculating his income for the purpose of the support awards. We agree that the chancellor erred in dividing the couple’s marital property and therefore reverse and remand the case.
Appellant and appellee were married in 1982. For the great majority of the marriage, appellee did not seek outside employment but, by agreement with appellant, remained at home to take care of the house and the children. Meanwhile, appellant pursued a career in the oil and gas industry. By the early 1990s, he had become the very successful owner of Hoover Oil & Gas, Inc., , and the part owner of a related operating company, Hoover/Wilson Exploration & Production, Inc. According to appellee, the couple had an average yearly income of $500,000 between 1995 and 1998. They enjoyed a lavish lifestyle that included a $700,000 home, three luxury vehicles, a boat, a condominium, jewelry, and various parcels of real property.
In 1996, the appellant and appellee separated temporarily. During this time, appellant met with several financial difficulties. First National Bank, which had made a $1,670,000 loan to Hoover Oil & Gas, restructured the loan in the fall of 1997 to require payments of $33,000 per month. According to loan officer James Fourmy, the loan was undercollateralized, and no payments had been made toward reducing the principal. Around the same time period, appellant discovered that an employee of Hoover/Wilson had embezzled a substantial amount of funds belonging to other persons. Additionally, appellant and appellee, while briefly reconciled, obtained a $400,000 mortgage on their home at appellant’s suggestion. According to appellant, he used $300,000 of the funds to pay business expenses and $100,000 to repay the embezzled funds. Appellee claims that $300,000 of the money was used to finance several unsuccessful drilling projects.
Shordy after obtaining the mortgage, appellant left the marital home, and the parties remained separated. Appellant became more concerned about his financial situation and decided to sell some of his producing wells. The largest sale involved what were known as the Greasy Creek wells, which brought a price of $972,479.84. Another sale, called the Vastar sale, generated $423,336.59. The proceeds of these sales and two smaller sales were dedicated to First National Bank, thereby reducing the Hoover Oil & Gas debt to $156,106. These sales substantially reduced the number of the company’s producing wells.
In April 1998, appellant sued appellee for divorce. It was agreed that appellee would receive custody of the children. However, the parties disagreed about the division of marital property, the amount of child support that appellant should pay, and whether appellee was entitled to alimony. Therefore, a trial was held on these issues. Following a two-day hearing, the chancellor issued a detailed letter ruling and a decree in which he made an unequal division of the property in appellee’s favor, awarded her $2,000 per month alimony for ten years, and ordered appellant to pay $3,500 per month child support. Appellant filed a timely notice of appeal from the chancellor’s ruling.
We note at the outset that chancery cases are reviewed de novo on appeal. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). However, we will not reverse a chancellor’s findings of fact unless they are clearly erroneous. Id. We will defer to the superior position of the chancellor to judge the credibility of the witnesses. Id.
We address first appellant’s contention that the chancellor erred in dividing the parties’ marital property. Arkansas law provides that, at the time a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315(a) (Repl. 1998). In the event the court finds that an equal division would be inequitable, it shall make some other division that it deems equitable, taking into consideration the many factors set forth in Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 1998), which include length of the marriage, the age, health, and station in life of the parties, and each party’s occupation, sources of income, and vocational skills. The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990). A chancellor’s unequal division of marital property will not be reversed unless it is clearly erroneous. See Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988).
In his letter ruling, the chancellor set out an item-by-item recitation of the marital assets and debts assigned to each party. Appellee was awarded, free of debt, the couple’s marital home, two vehicles, and other items with a total value of $917,406. Appellant was awarded the assets of Hoover Oil & Gas, valued at $421,642, an additional $210,821 enhancement to the company’s value, the remainder of the couple’s real property, and various other items with a total value of $1,319,514. Appellant was also assigned over $700,000 in debt, which included the $371,093 remaining mortgage on the marital home. His net award was therefore $618,998, or approximately forty percent of the marital property.
The chancellor’s decree, entered the same day as his letter ruling, disposed of some additional items such as sports tickets and a country club membership not mentioned in the letter. These items have some value, but their worth is negligible compared with the overall property owned by the parties. However, one significant item that was mentioned in the decree was not mentioned in the letter ruling — the $156,106 debt owed by Hoover Oil & Gas to First National Bank. In the decree, the debt is assigned to appellant. However, it is not included in the mathematical calculations in the letter ruling.
Appellant argues that the chancellor, in his letter ruling, obviously intended to divide the property 60/40 between the parties, but, due to several errors, the actual division was much more unequal. In particular, he contends that the assets assigned to him are much less valuable than they appear because the chancellor failed to reduce the worth of Hoover Oil & Gas by the $156,106 debt owed to First National Bank and because the chancellor arbitrarily added a 50% enhancement ($210,821) to the value of Hoover Oil & Gas. We agree that the chancellor erred on both counts.
To prove the value of the Hoover Oil & Gas assets at trial, appellee presented the testimony of CPA Matthew Scott James. James testified that, assuming the company’s wells continued to produce, their value was approximately $2.1 million. However, he admitted that he did not conduct engineering studies which are customary in valuating wells, and he admitted that in arriving at his figure, he included wells that the company had already sold. In fact, he said that he was not purporting to tell the court the value of Hoover Oil & Gas, Inc., but was attempting to provide a “snapshot” of a particular part of the business. There is nothing in any of the chancellor’s findings to indicate that he gave any credence to James’s valuation. Instead, it appears that in arriving at a value for Hoover Oil & Gas, the chancellor relied on appellant’s expert, petroleum engineer Tom Alexander. Alexander valued the company’s well reserves at $421,074.95. This valuation was apparently used by the chancellor, with a small correction, in arriving at the figure of $421,642 listed in the letter ruling as the value of Hoover Oil & Gas. Appellant has no quarrel with this value other than his claim that is should be reduced by the $156,106 owed to First National Bank.
A chancellor’s valuation of property for purposes of property division will not be reversed unless it is clearly erroneous. See Vestal v. Vestal, 28 Ark. App. 206, 771 S.W.2d 800 (1989). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). We are firmly convinced that a mistake was committed on this point. The chancellor’s letter ruling was a worthy attempt to clarify and explain the matters in the accompanying decree and to set out, mathematically, the ultimate division of property between the parties. However, the letter ruling makes no mention of the $156,106 debt. The debt was not mentioned either in assessing the value of Hoover Oil & Gas, nor in the listing of debts assigned to appellant. By inadvertently failing to consider this large amount as part of his mathematical calculations, the chancellor’s valuation of the company’s assets, as assigned to appellant, was erroneously inflated.
We also agree with appellant that the chancellor erred in assigning $210,821 in enhanced value to the worth of Hoover Oil & Gas. That amount is precisely 50% over and above the $421,642 value the chancellor assigned to the company. Even though neither party asked the chancellor to place an enhanced value on the company’s assets, the chancellor explained in his letter that “Elwin Hoover’s testimony regarding actual sales indicated a 50% higher sales price when compared to the [value estimates made by Tom Alexander].” The chancellor was referring to the four sales that Hoover Oil & Gas made for the purpose of reducing its debt to First National. Exhibits in the record show that the properties had the following values and sale prices: 1) one well to Seagull Energy valued at $28,879.50, sold for $58,879.54; 2) two wells to Foundation Life valued at $18,049.75, sold for $25,088.68; 3) Greasy Creek wells valued at $524,950.58, sold for $972,479.84; and 4) Vastar sale wells valued at $401,733.35, sold for $423,336.59. The percentage by which each sale exceeded the value of the property was 104%, 39%, 85%, and 5%, respectively (averaging 58.25%).
Obviously the four above-mentioned properties sold for more than the value of their engineered reserves. However, we cannot say that those sales created a reasonable basis for the chancellor to virtually take judicial notice that the value of the company’s remaining reserves should be enhanced. There was no testimony at trial that, as a matter of custom or practice, the value of oil and gas properties is to be calculated by adding an enhanced value based on past sale prices. The chancellor, in using this enhanced value, did not rely on any expert testimony or industry rule of thumb but simply decided, based on four prior sales, that Hoover’s oil properties could be valued by adding 50% to the engineered value of their reserves. Even though the sales prices of the above four properties averaged 58% above their values, the actual range of variance is 5% to 104%. This indicates that while Hoover Oil’s remaining wells may have some value in excess of their engineered reserves, it is pure speculation, given the evidence in this case, to say that if they are sold they will be worth 50% more. Predictability is favored over mere surmise in the valuation of marital property. Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996).
We acknowledge that our state’s property division statute does not compel mathematical precision in property distribution but only requires that property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Further, the chancellor is vested with a measure of flexibility in apportioning total assets, and the critical inquiry is how the total assets are divided. Id. However, the problem here is not the percentage distributed to each party but the erroneous calculation of the value of an asset assigned to appellant.
Because we find errors in the chancellor’s division of marital property, we reverse and remand to allow the chancellor to redivide the property in light of the considerations expressed in this opinion. See Grace v. Grace, supra. Additionally, we reverse the alimony and child-support awards because the chancellor’s awards and his calculation of appellant’s income are likely to be affected in light of his redivision of property consistent with our decision.
Reversed and remanded.
Bird and KOONCE, JJ., agree.
The extent of the reduction is unclear. It appears that, at its height, Hoover Oil & Gas operated seventy-nine producing wells. After the 1998 sales, the number was reduced to either thirty-seven or fifteen, depending upon which trial exhibit is referenced. | [
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SAM BIRD, Judge.
Appellant First Community Bank of Southeast Arkansas brings this appeal from the Circuit Court of Bradley County, which denied it a deficiency judgment against appellees Donald R. and Betty Darlene Paccio. We affirm.
In August 1994 and 1995, Donald Paccio purchased certain furniture from Carpenter Home Supply and entered into a retail installment contract and a security agreement with Daylight Finance Company. First Community Bank subsequently purchased the account from Daylight Finance Company. In March 1996, the Paccios filed for Chapter 13 bankruptcy but, thereafter, entered into a “Reaffirmation Agreement and Contract Modification Agreement” with the bank. After the Paccios defaulted on the loan, First Community Bank filed a complaint for replevin on July 24, 1998. The Paccios answered with a general denial. The court entered an order of delivery allowing First Community Bank to take possession of the items in dispute and an order allowing the property to be sold at a public sale.
After the sale, the bank filed an amended complaint for replevin praying for judgment against the Paccios, jointly and severally, for $9,511.82, representing the principal and interest on their debt as of February 17, 1998, less any proceeds received from the sale of the personal property. The Paccios answered the bank’s amended complaint, denying any liability for any deficiency result ing from the sale because the sale of the property was- not held in a commercially reasonable manner.
A hearing on the issue of a deficiency judgment was held on July 12, 1999, and Jerry Starnes, vice president and loan officer for First Community Bank, testified that his bank had acquired the Paccios’ account from Daylight Finance through a foreclosure action. He stated that after the Paccios defaulted on the loan and the bank obtained possession of the furniture, the principal balance of the loan was $9,105.12.
Starnes testified that the first scheduled sale of the Paccios’ furniture was canceled because the bank felt “uncomfortable that we had given Ms. Paccio adequate time to respond.” Two to three weeks prior to the second sale, the bank notified the Paccios of the sale by certified mail and by regular mail, and sent a copy of the notice to their attorney, James Haddock. Starnes admitted that the Paccios did not sign for the certified letter, and that the certified letters were returned to the bank unclaimed. He stated that he sent the notices of the sale to their last known address. However, he stated, that he knew the couple was separated at the time he sent the certified letters and that he knew that Ms. Paccio was teaching school in Louisiana. The bank also advertised the sale in two of the local newspapers. Starnes testified that the furniture sold for a total of $2,670, and that the balance of the Paccios’ debt, plus expenses of the sale, less the amount garnered from the sale, was $10,746.94. He stated that the day after the sale of the property, the Paccios’ attorney phoned him and made an offer to purchase the furniture for $2,000, but that he could not accept the offer because the furniture had already been sold.
Darlene Paccio testified that she was married to Don Paccio and that she had an apartment in Louisiana while she was teaching school at Pine Grove Elementary. She and her husband had separated in March, and she returned home at the end of May. She stated that she did not receive notice from the bank about the sale of the property or her right to redeem the property. She confirmed that James Haddock is her attorney.
The court denied the bank’s request for a deficiency judgment, finding that the bank had failed to prove that notice of the time and place of the sale was given to the Paccios. It noted that Starnes had testified that he had sent notice to the Paccios, but that Starnes did not testify as to whether the notice included the time and place of the public sale. The judge stated that when the creditor fails to provide the time and place of the sale of repossessed collateral, the creditor is not entitled to a deficiency judgment, relying on First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987).
The sale of the debtors’ collateral must be commercially reasonable as to method, time, place, and terms. Walker v. Grant County Sav. & Loan Ass’n, 304 Ark. 571, 803 S.W.2d 913 (1991); G. W. Clark v. First Nat’l Bank of Mena, 24 Ark. App. 52, 748 S.W.2d 42 (1988); Ark. Code Ann. § 4-9-504(3) (Repl. 1991). The secured party must send the debtors reasonable notice of the time and place of public sale of collateral and reasonable notice of the time after which private sales will be made, unless the debtor has signed a statement renouncing or modifying that right. Walker v. Grant County Savings & Loan Ass’n, supra; G. W. Clark v. First National Bank of Mena, supra; Ark. Code Ann. § 4-9-504(3). The debtor is entitled to notification of a specific date after which the creditor intends to dispose of the property. This provides the debtor a fixed period within which to protect himself from an inadequate sale price in any manner he sees fit. Walker v. Grant County Savings & Loan Ass’n, supra (citing Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532 (1974)). The court has also held that the notice requirements must be consistently adhered to. Walker v. Grant County Saving & Loan Ass’n, supra (citing First State Bank of Morrilton v. Hallet, 291 Ark. 37, 722 S.W.2d 555 (1987)).
When a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency judgment, unless the debtor has specifically waived his rights to such notice. Walker v. Grant County Sav. & Loan Ass’n, supra; Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983).
The bank brings this appeal, contending that the trial court erred in its finding that the Paccios had contended that they were not notified of the sale. Essentially, the bank argues that the trial court decided the case on a basis that had not been argued by the Paccios. The bank states that Darlene Paccio testified that she did not receive the notice because she was separated from her husband, not because the notice was not sent to her by the bank. The bank also notes that Don Paccio did not testify at all, and that no witness testified that the notice was inadequate. The bank argues that it is not required by law to prove that the Paccios actually received the notice, only that the notice was sent. We do not agree.
The Paccios raised the issue of the adequacy of the bank’s notice of the sale in their answer to the banks amended complaint for replevin by specifically asserting as a defense to the bank’s claim to a deficiency judgment that the sale of collateral was not held in a commercially reasonable manner. The requirement set forth in Ark. Code Ann. § 4-9-504(3) that the secured party give to the debtor reasonable notification of the time and place of the sale or other intended disposition of the collateral is a consideration in determining whether the sale is commercially reasonable. See Cheshire v. Walt Bennett Ford, Inc., 31 Ark. App. 90, 788 S.W.2d 490 (1990). The burden is on the creditor to prove that a notice was sent that conforms to the requirements of that section. Id.
In Walker, it was alleged that the creditor had delivered to the debtor a handwritten note stating that the property would be sold. A copy of the note was introduced into evidence. However, the court held that this was insufficient notice because:
there is no reference in the message to time of sale, or to specific location of sale, or to the method, manner, and terms of the sale other than the fact it was to be an auction. Any reference to private sales to be held after the auction was also omitted, and no subsequent written notice was given to ... Walker about private sales.
Walker v. Grant County Savings & Loan Ass’n, 304 Ark. at 571, 803 S.W.2d at 916.
The bank did not introduce the notice into evidence, so we are not aware whether it included the time and the place of the sale. Although Starnes testified that notices were sent to Mr. and Mrs. Paccio by certified mail, he offered no testimony as to the content of the notices. Because no evidence was presented as to the content of the notice of sale, we cannot say that the court erred in its conclusion that the bank failed to prove that it gave notice of the time and place of the sale to the Paccios. Accordingly, the court did not err in denying the bank a deficiency judgment against the Paccios.
Affirmed.
Robbins, C.J., and Meads, J., agree. | [
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JOHN E. JENNINGS, Judge.
This is an appeal from an order granting appellees’ motion for a new trial in a medical malpractice case. Appellant Dr. Emilio Tirado surgically repaired appellee John O’Hara’s hernia in March 1993. During the surgery, appellant placed one stitch through and another one around Mr. O’Hara’s femoral nerve, which damaged the nerve and allegedly caused him to suffer pain in the right leg. At trial, the jury returned a verdict in favor of Mr. O’Hara and, based on interrogatories, set his damages at a total of $77,332.03. Although the jury also found in favor of Mr. O’Hara’s wife, Jo, on her claim of loss of consortium, it awarded her no damages.
Appellees timely filed a motion for a new trial in which they argued that the jury’s award of damages was inadequate and was clearly against a preponderance of the evidence. The trial court agreed and granted the motion. On appeal, appellant contends that the trial court erred in granting appellees’ motion for a new trial. We disagree and affirm.
At the time of trial, Mr. O’Hara was fifty-one years old and had worked primarily as a carpenter. The surgery in question was Mr. O’Hara’s third repair of a hernia located on the right side. His first hernia surgery occurred in 1990. He experienced a second hernia in 1992. He was also involved in a car accident at that time in which he ruptured a cervical disc. He received treatment for this injury from Dr. Jay Lipke, who kept him off work until January 1993. While convalescing from the neck injury, he had the second hernia repaired by Dr. Kerry Ozment in July 1992.
Mr. O’Hara soon developed another hernia that was repaired by appellant in March 1993. At the trial held on December 8, 1998, Mr. O’Hara testified that he experienced excruciating pain in his right leg the moment he regained consciousness from surgery. He said that the pain has persisted since the surgery but that its intensity comes and goes. He described the pain as a constant burning sensation that also felt like needles or briars were being stuck into his leg. He said that it was painful for his leg to be touched; that he wears overalls ninety-five percent of the time; and that he sleeps with a pillow between his legs. Mr. O’Hara further testified that he has had trouble sleeping as much as four times a week and that he takes medication to help him sleep. A release procedure was done on the nerve in July 1993, and Mr. O’Hara did say that the pain had been worse prior to the procedure. Mr. O’Hara has not worked since the surgery, and he testified that the main disabling feature of his problem was the pain he felt in his right leg.
In terms of medical treatment, Mr. O’Hara was seen for his complaints of leg pain by Dr. Victor Martinez, a vascular surgeon, in June 1993. From his examination, the doctor suspected an injury to the right femoral nerve. He referred Mr. O’Hara to Dr. Jorge Martinez, a neurosurgeon. This doctor agreed with that diagnosis, and exploratory surgery was scheduled for July 22, 1993. Both Martinez doctors participated in the surgery in which they dissected the nerve and performed a neurolysis. During the procedure, they discovered that the right femoral nerve was entrapped in a large amount of scar tissue that was compressing the nerve. They also found that a suture had pierced the nerve and that another suture had been placed tightly around the nerve, which contributed to its compression. Dr. Jorge Martinez testified that it would take a year for the nerve to heal and that he would consider the damage to the nerve permanent if there was still pain after that time. It was also said that, if the sutures had been placed there before the surgery performed by appellant, Mr. O’Hara would have previously experienced the symptoms of leg pain. Along the same lines, Dr. Lipke testified that appellant did not complain of leg pain at the time of the second hernia surgery. Dr. Lipke also assigned a fifty percent permanent impairment rating as a result of the damage to the nerve.
Dr. Albert Beatty testified that hernia surgery was now done on an out-patient basis. He said that, given Mr. O’Hara’s symptoms, he would have suspected a problem with the femoral nerve three to four days after the surgery. He further testified that, if there is an injury to a nerve because of a suture going through it, it is incumbent to remove the suture as soon as possible so as to reduce the chance of permanent damage. He felt that it would have been too late for a neurolysis to have been done as early as May 1993.
Dr. David Kline, a neurosurgeon, saw Mr. O’Hara in September 1995. He said that Mr. O’Hara had a mild femoral neuropathy that was associated with pain. He testified that the muscles served by the nerve were working well but that Mr. O’Hara’s knee-jerk reaction was absent and that he showed hypethesis and hyperthesia in the areas served by the nerve. Dr. Kline had suggested another procedure to clean out the nerve, which Mr. O’Hara declined. Dr. Kline said that he understood that decision because there was only a fifty to sixty percent chance that the procedure would help and a small chance that it might make the condition worse. He also believed it doubtful that the procedure would be helpful now after the passage of so much time.
Dr. William Ackerman, a pain-management physician, testified that he felt Mr. O’Hara’s complaints of pain were genuine by observing changes in his hemodynamic perimeter by monitoring changes in pulse, blood pressure, and an EKG during his examination. Dr. Kerry Ozment testified that the placement of a suture through the femoral nerve would cause a tremendous amount of discomfort and excruciating pain.
Dr. Reginald Rutherford, a neurosurgeon, was a witness for the defense. He did not personally conduct an examination of Mr. O’Hara, but he reviewed Mr. O’Hara’s medical records for the purpose of offering an opinion regarding the extent of his injury and resulting disability. Dr. Rutherford assigned a four percent permanent impairment rating. He said that one could draw the conclusion that there was excellent surgical intervention and a good recovery of motor function and that there was nothing objectively identified that would prevent gainful employment. He further testified that he did not question that Mr. O’Hara had suffered pain and that he did not disbelieve Mr. O’Hara’s complaints of pain.
Rule 59 of the Arkansas Rules of Civil Procedure permits a trial court to grant a new trial if there is error in the assessment of the amount of the recovery, whether too large or too small, .or if the verdict is clearly contrary to the preponderance of the evidence. Ark. R. Civ. P. 59(a)(5) and (6). The test this court applies in reviewing a trial court’s granting of a motion for a new trial is whether the trial court abused its discretion; a showing of an abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Lloyd’s of London v. Warren, 66 Ark. App. 370, 990 S.W.2d 589 (1999). Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised without due consideration. Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).
To arrive at its decision, the jury was asked a series of nine interrogatories. The questions and the jury’s responses were as follows:
INTERROGATORY No. 1: Do you find from a preponderance of the evidence that there was negligence on the part of Dr. Emilio Tirado which was the proximate cause of any damages?
Answer: Yes.
Only if your answer to Interrogatory No. 1 is yes, then answer the following Interrogatories. In those Interrogatories, state the amount of any damages which you find from a preponderance of the evidence were sustained by John O’Hara as a result of the occurrence.
VERDICT No. 2: For the nature, extent, duration and permanency of his injury: $-<9-.
VERDICT No. 3: For past medical expenses: $16,832.03.
VERDICT No. 4: For the present value of medical services reasonably certain to be required in the future: $25,000.00.
VERDICT No. 5: For pain, suffering and mental anguish experienced in the past: $-<?-.
Verdict No. 6: For the present value of any pain, suffering and mental anguish reasonably certain to be experienced in the future. $-0-.
VERDICT No. 7: For the value of any working time lost. $10,500.00.
VERDICT No. 8: For the present value of any ability to earn in the future. $25,000.00.
VERDICT No. 9: We, the jury, find the issues in favor of the plaintiff, Jo O’Hara, and assess damages in the following amount. $-0-.
On appeal, appellant posits various theories to explain the jury’s verdict. However, the trial court does not abuse its discretion when it can fairly be found that the jury failed to take into account all the elements of the total injury proven, even if it might be possible to explain the verdict on the basis of something like awarding the plaintiff only the proven pecuniary losses. Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987); see also, e.g., Hamilton v. Russell, 307 Ark. 478, 821 S.W.2d 35 (1991). In Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985), the plaintiff was lifted into the air and both of his forearms were broken when a tire ruptured with an explosive force. He was disabled for eight weeks, including substantial hospitalization; he lost wages of $500.00 a week; and he suffered great pain and injuries that were both permanent and disfiguring. The trial court granted the plaintiff’s motion for a new trial when the jury awarded damages only in the amount of the medical expenses incurred. On appeal, the supreme court found no abuse of discretion in the trial court’s decision.
In the case at bar we hold that the trial court could fairly conclude that the jury failed to take into account all of the elements of Mr. O’Hara’s damages. The record leaves no room for doubt that Mr. O’Hara’s femoral nerve had been damaged and that the injury manifested itself in the form of pain. It was also uniformly recognized in the testimony that the injury was most likely to some degree permanent. Yet, the jury awarded damages for only the actual monetary losses sustained by Mr. O’Hara. We find no abuse of discretion in granting the motion for new trial.
With respect to Mrs. O’Hara’s claim for loss of consortium, appellant further argues that a jury need not, as a matter of law, give a pecuniary award for loss of consortium when damages are awarded to the injured spouse, as was held in both Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982), and Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989). Those cases, however, are distinguishable from the one at bar. In both of them, it was argued that the trial court erred in refusing to order a new trial based on the perceived inconsistency of damages being awarded to the injured spouse and none being awarded for loss of consortium. Here, the trial court granted the motion for a new trial based on a finding that there was a fundamental error in the assessment of the injured spouse’s damages. We therefore can find no abuse of discretion in permitting the claim for loss of consortium to be retried as well.
Affirmed.
Neal and Griffen, JJ., agree. | [
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SAM BIRD, Judge.
Eugene Ryan appeals a decision of the Pulaski County Circuit Court awarding Debra Reynolds judgment for $1,334.50. We reverse the court’s decision and remand with instructions to enter judgment in favor of Ryan.
Ryan filed a complaint in the small claims division of Sherwood Municipal Court against Reynolds for unpaid rent of $641. Reynolds did not file an answer. However, she appeared at the hearing, and at the close of the hearing, the municipal judge awarded Reynolds a judgment against Ryan for $125 plus eight percent interest. Ryan appealed to circuit court.
At the trial in circuit court, Reynolds again appeared pro se, and Ryan moved to exclude any evidence Reynolds might seek to present as an affirmative defense or a counterclaim, and any effort she might make to amend the pleadings to conform to the proof, because Reynolds still had not filed an answer or any other pleading. Nevertheless, the trial judge denied all of Ryan’s motions.
After Ryan rested, the judge, over Ryan’s objection, questioned Reynolds about her claims that Ryan owed her money. At the close of the case, the judge granted a judgment in favor of Reynolds against Ryan in the amount of $1,334.50. Ryan filed a motion to amend the judgment or, alternatively, for new trial under Ark. R. Civ. P. 59(a)(5),(6) & (8). The motion was deemed denied after thirty days, and Ryan appealed to this court.
Arkansas Code Annotated section 16-17-610 (Repl. 1999), relating to municipal courts, provides, “The defendant shall file his answer with the clerk of the court within twenty (20) days after the service of the claim form upon him.... The defendant shall mail a copy of his answer to the plaintiff.” Arkansas Code Annotated section 16-17-611 (Repl. 1999) adds, “The defendant shall file with the clerk of the court his answer and assert any affirmative relief he may claim in substantially the following form:....”
Furthermore, the procedure to be followed is also provided in the Inferior Court Rules, which govern small claims court. Rule 6 states:
(a) Contents of Answer. An answer shall be in writing and signed by the defendant or his or her attorney, if any. It shall also state: (1) the reasons for denial of the relief sought by the plaintiff, including any affirmative defenses and the factual bases therefor; (2) any affirmative relief sought by the defendant, whether by way of counterclaim, set-off, cross-claim, or third-party claim, the factual bases for such relief, and the names and addresses of other persons needed for determination of the claim for affirmative relief; and (3) the address of the defendant or his or her attorney, if any.
(b) Time for Filing Answer or Reply. An answer to a complaint, cross-claim, or third-party claim, a reply to a counterclaim, shall be filed with the clerk of the court within 20 days of the date that the complaint or other pleading asserting the claim is served. A copy of an answer or reply shall also be served on the opposing party or parties in accordance with Rule 5(b) of the Rules of Civil Procedure.
The reporter’s note to Rule 6, after the 1997 amendment explains:
Former subdivisions (a) and (b) have been collapsed into a single provision that requires a defendant to file a written answer. Under a previous version of the rule, a defendant could simply appear on the trial date without fifing a formal answer, unless he intended to assert an affirmative defense or seek affirmative relief, in which case a written answer was necessary. In addition, subdivision (a) now specifies that the answer include information set out in the form accompanying the rule, which has also been revised slightly. Consistent with Rule 4, [Ark. R. Civ. P.] new subdivision (b) provides that an answer to a complaint, cross-claim or third-party claim, as well as a reply to a counterclaim, must be filed within 20 days after service.
And Inferior Court Rule 8, “Judgments — How entered,” states:
(a) By Default. When a defendant has failed to file an answer or reply within the time specified by Rule 6(b), a default judgment may be rendered against him.
The addition, the reporter’s note to the 1997 amendment states:
Subdivision (a) has been amended to take into account the requirement, imposed by amended Rule 6(a), that a formal answer be filed. The previous version provided for a default judgment if the defendant did not appear in court on the trial date. ,
There is no procedure by which a municipal court or a circuit court of this state can render a judgment in favor of a defendant who has failed to answer a complaint. Consequently, the decision of the circuit court must be reversed.
Although in his complaint in municipal court, Ryan sought to recover only $75 as partial rent due for December 1996, and $286 representing Reynolds’s share of a full month’s rent for October 1997, he testified at the de novo trial in circuit court that, in addition to those sums, Reynolds owed $286 for her share of the rent for November 1997. He explained that Reynolds had moved into the rent house in December 1996. The monthly rental was $500, and HUD subsidized Reynolds $214 of that, leaving Reynolds’s share at $286 a month, but that $75 of Reynolds’s share for the first month was unpaid. Ryan said that although Reynolds’s payments were not always timely thereafter, it was not until October 1997 that Reynolds completely failed to pay her share of the rent. She moved out November 3, 1997, without paying the November rent, and left behind a “garage full of stuff.” When she moved she also dug up a lot of plants from the yard, leaving unfilled holes, and, after being told to make no changes to the house, she had painted cloud effects on one bedroom ceiling, put a wallpaper border in one room, and wallpapered another. Ryan also sought to recover $25 for a shower head and $12.50 for electric-switch wall plates and outlet covers that he said had been removed from the house when Reynolds left.
Arkansas Rule of Civil Procedure 15(b) permits amending pleadings to conform to the proof adduced at trial and such amendments may be made at any time, even after judgment. National Sec. Fire & Casualty Co. v. Shaver, 14 Ark. App. 217, 686 S.W.2d 808 (1985). Consequently, we consider Ryan’s pleadings to have been amended to conform to the proof as to Reynolds’s liability for her share of the November 1997 rent, the shower head, and the wall plates.
At the circuit court trial, Reynolds was permitted to testify, over Ryan’s objection, that Ryan had breached their lease contract by giving her notice to move out of the house before the lease expired. Reynolds was also permitted to testify, over objection, that she sustained $250 in moving expenses, that she paid teenage girls $65 to help with the house and yard, that it cost $267 in materials and $440 labor to bring the house up to HUD guidelines to qualify for subsidized housing, and that she spent $106 for two rose bushes she lost. Such evidence could not have been offered in mitigation of Ryan’s damages, but was, rather, the assertion of a counterclaim, which Reynolds, being a defendant in default, should not have been permitted to present. In Polselli v. Aulgur, 328 Ark. 111, 942 S.W.2d 832 (1997), the Arkansas Supreme Court stated the following about the rights of a defendant in default:
When disputing the amount of damages, the defendant has the right to cross-examine the plaintiff’s witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. Clark v. Michael Motor Co., 322 Ark. 570, 910 S.W.2d 697 (1995). The defaulting defendant may not, however, introduce evidence to defeat the plaintiff’s cause of action.
328 Ark. at 114, 942 S.W.2d at 833. See also Sphere Drake Ins. Co. v. Bank of Wilson, 312 Ark. 540, 851 S.W.2d 430 (1993); and B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).
Ryan’s evidence established that appellee owed him $572 for her share of two months’ rent, $75 for a partial month’s rent, $25 for a missing shower head, and $12.50 for missing wall plates, for total damages of $684.50. He also testified that he held $250 of Reynolds’s money as her renter’s deposit that should be credited to the amount she owed him. That leaves a balance of $434.50 for which Ryan is entitled to judgment against Reynolds, because Reynolds failed to present any evidence in mitigation other than that she asserted as a counterclaim.
The judgment of the circuit court is reversed, and we remand the case to the circuit court for entry of a judgment for Ryan in the amount of $434.50, plus costs.
Reversed and remanded.
Neal, Crabtree, and Meads, JJ., agree.
Pittman and Griffen, JJ., dissent. | [
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James R. Cooper, Judge.
This appeal involves the penalties imposed on the appellee by the appellant for violations of regulations regarding the practice of pharmacy. The Board appeals from the trial court’s decision that one of the bases found by the Board to justify suspension of the appellee’s license was not supported by substantial evidence, and from the trial court’s reduction of the period of suspension.
On February 16, 1982 a hearing was held before the Board, and, as a result of that hearing, the Board imposed a $200 fine and suspended the appellee’s license for 30 days. The appellee appealed that decision to the circuit court, which remanded the case to the Board for further development of the factual basis for the Board’s findings. On remand, the Board heard additional charges, and, as a result of a hearing held on October 13, 1982, found that the appellee had failed to maintain accurate records, that he was guilty of unprofessional conduct in refilling altered prescriptions, that he had arbitrarily changed the directions for dosages on certain prescriptions, and that he had dispensed drugs without a prescription. Based on these findings, the Board suspended his license for 90 days and imposed a $500 fine. On the second appeal, the circuit court found substantial evidence to support the Board’s finding regarding the inaccuracy of the records, and the court deferred to the Board’s expertise on its finding regarding the altered prescription. However, the court held that the finding that the appellee had refilled unauthorized prescriptions was based on conjecture, speculation, or surmise. The court, based on those findings, reduced the period of suspension from 90 days to 10 days, leaving all other penalties intact. From that decision, the Board appeals.
Since no one appeals from the two findings which the trial court found to be supported by substantial evidence, we will not deal with those facts. The evidence regarding the unauthorized refill of a prescription centers around transactions involving the appellee and Dr. T. H. Hickey. A Health Department Auditor, in the course of his investigation, obtained a statement from Dr. Hickey that he had not authorized a prescription for Mr. Ivan Ward for Talwin. Subsequently, the appellee introduced a statement from Dr. Hickey which indicated that he might have authorized the medication for Mr. Ward. Mr. Ward and his wife testified that, when the prescription was presented to the appellee, he called Dr. Hickey to obtain authorization for the refill. The appellee testified that he had obtained authorization from Dr. Hickey for the refill. Further, Mr. Ward’s son testified that he had spoken with Dr. Hickey about his father’s condition, and that he later went to the pharmacy and observed the appellee discussing the matter with Dr. Hickey over the telephone prior to filling the prescription. The appellee’s mother verified her son’s version , of the events surrounding the refill of Mr. Ward’s prescription.
From this evidence, the Board made its findings and assessed the penalties noted above. The trial court affirmed the Board’s findings on two of the charges, but, as noted earlier, found that the Board’s conclusion that the appellee had refilled an unauthorized prescription was based on conjecture and speculation rather than on substantial evidence. After reviewing the evidence, we agree with the trial court that the Board’s finding regarding the refill of unauthorized prescriptions was not supported by substantial evidence.
On appeal from decisions resulting from actions under the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Repl. 1976),
. . .the circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken. On appeal to this court, our review is similarly limited to a determination of whether the action of the board or agency is supported by substantial evidence. Arkansas Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979). Substantial evidence has been defined as valid, legal and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond mere conjecture. Pickens-Bond, Const. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).
Arkansas Real Estate Commission v. Hale and Owens, 12 Ark. App. 229, 674 S.W.2d 507 (1984).
We affirm the decision of the trial court that the Board’s decision regarding the charge of refilling unauthorized prescriptions was not supported by substantial evidence. The only evidence before the Board which supported such a finding was Dr. Hickey’s initial statement in which he indicated that he had not authorized the refill in question. Dr. Hickey later recanted, and stated, under oath, that he might have authorized the questioned prescription. For the Board to accept as truth the initial statement, and to disregard the witness’ later statement, and the testimony of all the other witnesses, required speculation and conjecture on the part of the Board.
The Board also argues that the trial court erred in substituting its judgment for that of the Board in assessing the penalty against the appellee. On this point, we agree with the appellant.
The trial court, in deciding to modify a penalty, suspension or revocation of a pharmacist’s license, is limited by the provisions of Ark. Stat. Ann. § 5-713(h) (Supp. 1983), which states:
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error or law;
(5) not supported by substantial evidence of record;
or
(6) arbitrary, capricious, or characterized by abuse of discretion.
The trial court, or, for that matter, this Court, has the authority to modify a penalty assessed under the Administrative Procedure Act if it is found that such penalty was unduly harsh and unreasonable under all the facts. Baxter v. Arkansas State Board of Dental Examiners, 269 Ark. 67, 598 S.W.2d 412 (1980); Arkansas State Board of Pharmacy v. Patrick, 243 Ark. 967, 423 S.W.2d 265 (1968). Although the trial court may have felt that the 90 day suspension was arbitrary in the sense that it was too harsh under all the circumstances of the case, based on the evidence the trial court found to be substantial, we are not in agreement with the trial court’s decision to reduce the period of suspension, nor do we feel compelled to assess a penalty on our own, either by reinstating the penalty assessed by the Board, or arriving at some other period of suspension. We have decided, rather, to remand the case to the circuit court, with instructions to the trial court to remand the matter to the Board. The Board is to assess a penalty which, in the determination of the Board, is commensurate with the violations found to be supported by substantial evidence by the trial court and this Court. Neither we, nor the trial court, could determine the weight the Board placed on the alleged violation concerning the unauthorized refill, but, since both the trial court and this Court have found that charge and finding of guilt to be unsupported by substantial evidence, a penalty should be assessed absent any consideration of that charge. The Board of Pharmacy is composed of five experienced pharmacists, and, “it is more likely to know the effectiveness of penalties than any court.” Patrick, supra, (dissenting opinion).
Affirmed, and remanded.
Cloninger and Corbin, JJ., agree. | [
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Lawson Cloninger, Judge.
This appeal from appel lant’s criminal conviction consists of four points for reversal. We find no error on the trial court’s part with respect to any of the points raised, and therefore we affirm.
Appellant was charged with theft by receiving under Ark. Stat. Ann. § 41-2206 (Repl. 1977) following his arrest for the possession of a stolen gold Rolex wrist watch. The prosecutor sought sentence enhancement under the terms provided for habitual offenders at Ark. S tat. Ann. § 41-1001.
At an omnibus hearing held before the trial, the lower court granted appellant’s motion to suppress the admission of the watch as evidence on the grounds that it had been seized without a search warrant in violation of the Fourth Amendment. Two days later the trial court reconvened the omnibus hearing after the State had filed a brief requesting reconsideration of the matter. The court heard the testimony of a jeweler who said that appellant had brought the watch to his shop, claimed that it was “hot,” and asked to have the serial numbers removed. The police officer who received the watch from the store manager was examined, as well. At the conclusion of the hearing the court reversed its earlier ruling and denied appellant’s motion to suppress the watch.
The case was tried to a jury, and appellant was found guilty of theft by receiving. The value of the watch was determined to be in excess of $2,500, rendering the crime a class B felony pursuant to § 41-2206(5)(a). Before the jury went on to consider sentence enhancement under the habitual offender statute, the members were polled at appellant’s request. During the polling, one of the defense witnesses, with the verbal encouragement of appellant, asserted that one of the jurors was a prostitute. The court admonished the jury not to allow the outburst to affect their sentencing decision, and two jurors acknowledged that their decision would indeed be affected. Appellant moved for a mistrial. The court allowed the sentencing phase to proceed and postponed consideration of the motion.
Upon its return, the jury stated that it had “agreed unanimously not to fix the sentence and to allow the judge to fix the sentence if possible.” Appellant objected that the court had access to prejudicial information. The court then passed judgment under the provisions of Ark. Stat. Ann. § 43-2306 (Repl. 1977), sentencing appellant to fifteen years in the Arkansas Department of Correction and assessing a $10,000 fine. From that decision this appeal arises.
Appellant argues first that the court erred in denying the defense motion to suppress the introduction into evidence of the gold Rolex watch. He claims that the seizure without a search warrant violated his Fourth Amendment rights. The court’s denial of appellant’s motion was grounded on two reasons: (1) when appellant, as bailor, gave the property to the jeweler, as bailee, he gave him apparent authority to act with reference to that property under the circumstances; (2) the jeweler made a telephone call to the police officer informing him that the serial numbers might soon be removed, thus justifying a warrantless seizure under exigent circumstances.
It is appellant’s view that he retained an expectation of privacy in the gold watch despite any apparent authority vested in the jeweler. He relies on United States v. Butler, 495 F.Supp. 679 (E.D. Ark. 1980), a case dealing with a third party consent to the warrantless search of a bureau drawer and a locked suitcase discovered in the defendent’s room. The federal court held that the defendant had a reasonable expectation of privacy in the drawer and suitcase and that his father had no lawful authority to consent to the search. The court laid particular emphasis on the absence of exigent circumstances.
We believe that the circumstances of the present case distinguish it from Butler, supra. Appellant’s reasonable expectation of privacy in the gold watch was considerably diminished when he delivered it to a jeweler with instructions to efface the serial number and to add decorative designs. These directions entailed the shipping of the watch to New York for the requested alterations. Jewelers in both Little Rock and New York thus had access to the watch, and, while appellant’s expectation of privacy may have continued, the reasonableness of the expectation cannot be said to have been of the same degree as that of the defendant in Butler. A watch openly delivered to a jeweler in a business open to the public is not the same thing as a closed bureau drawer or a locked suitcase in a private residence.
Third person authority may be based upon the fact that the third person shares with the absent target of a search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third party may grant this permission to others. United States v. Matlock, 415 U.S. 164 (1974); United States v. Butler, supra. In the instant case, for the purposes of the bailment, appellant and the jeweler shared common authority over and general access to the watch in question. The jeweler, moreover, initiated the contact with the police, not the other way around. As manager of the shop, the jeweler was clothed with ample authority to notify the police of suspicious circumstances surrounding goods brought to his place of business. In fact, if the jeweler had followed the instruction of appellant without notifying the police, the jeweler may well have become a participant in the crime. Appellant had voluntarily surrendered the watch to the jeweler, expecting that he would do whatever would be necessary to comply with his instructions regarding the changes he wished to be made. The fact that appellant told the jeweler the watch was “hot’ ’ clearly indicates that he did not regard the issue of privacy as being of the first importance; it further supports our conclusion that appellant extended sufficient authority to the jeweler to consent to the taking of the watch by the police.
Appellant attacks the trial court’s finding of exigent circumstances, contending that the time between the police officer’s conversation with the jeweler and the seizure of the watch on the following day provided more than enough opportunity for the officer to obtain a warrant. Yet, as the United States Supreme Court observed in Cardwell v. Lewis, 417 U.S. 583 (1974): “The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.” Areal danger existed in the present case that the watch seized might have been altered beyond recognition if not destroyed. Although Cardwell, supra, applied to the seizure of a car, the concept of mobility underlying the case is applicable in the present set of circumstances when a watch about to be defaced is involved.
In his second point for reversal, appellant urges that the trial court erred in admitting the watch into evidence over his objection that an inadequate chain of custody had been established. Specifically, appellant complains that a proper foundation for authentication should have included testimony regarding the handling of the watch in New York. As he puts it, a “gap” appears in the chain of custody from the time part of the watch was mailed to New York to its return to Little Rock.
Appellant’s argument would have been more relevant had it addressed a break in the chain after the watch was seized. No objection was made, however, to the handling of the watch once it was in police custody. Only the dial of the watch had been sent to New York; it was mailed in a parcel bearing appellant’s name and was returned in the same manner. The owner was able to identify it positively.
We recently dealt with the issue of chain of custody in Meador v. State, 10 Ark. App. 325, 664 S.W.2d 878 (1984). There, a weapon introduced into evidence was not in the sheriff’s possession at all times and no serial number of the receipt was available. We held that the gap in that case affected the weight to be given the evidence rather than its admissibility.
In establishing a chain of custody prior to the introduction of evidence at the trial, it is not necessary to eliminate every possibility that the evidence has been tampered with . . . The issue is whether the trial court abused its discretion in determining that in reasonable probability the integrity of the evidence was not impaired and that it had not been tampered with.
In Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982), the Arkansas Supreme Court found that there was little likelihood of tampering and no abuse of discretion when a judge admitted into evidence a fingerprint card that had been handled by some unknown person with the Federal Bureau of Investigation in Washington, D.C. As in the present case, the unknown person in another city was the only broken link in the chain. Here, as in Davis, supra, other testimony satisfied the trial court that “in reasonable probability” the evidence was genuine and had not been tampered with. We find no abuse of judicial discretion and consequently no error on this point.
Appellant’s third point for reversal is that the trial court erred in refusing to grant his motion for a mistrial when two jurors declared that they would be unable to pass sentence impartially. Both jurors were reacting to the uproar caused in the courtroom by a defense witness’s assertion that one of the jurors was a prostitute. It is readily apparent from a review of the record that appellant seconded the witness in her disruptive remarks:
WITNESS: Listen—
DEFENDANT: Tell them. Tell them.
WITNESS, SHERRY JONES: She cannot do that because she [a juror] has worked with me before.
DEFENDANT: She can’t. That’s right.
WITNESS, SHERRY JONES: She is a prostitute, your Honor.
WITNESS: Your Honor, she is a prostitute.
DEFENDANT: Sit down over there. Sit down. She’s pregnant.
WITNESS: Your Honor, she is a prostitute.
The significant part appellant played in the disruption that he now claims occasioned prejudicial error cannot be overlooked by this court. His behavior at the time in question is akin to invited error, and it is settled that one who is responsible for error should not be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 462 (1983); Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). In Illinois v. Allen, 397 U.S. 337 (1970), the United States Supreme Court observed that an accused cannot be permitted by his disruptive conduct to avoid being tried on the charges brought against him.
The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial. Except for an abuse of that discretion or manifest prejudice to the complaining party we will not reverse on that basis. Berry v. State, supra; Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). A mistrial is an extreme remedy which should be used only as a last resort. Bateman v. State, 2 Ark. App. 339, 621 S.W.2d 232 (1981). Any possibility of prejudicial error was removed by the jury’s action in acknowledging their inability to determine a sentence in requesting the trial court to do so in their stead.
It is this action of the jury that forms the basis for appellant’s fourth point for reversal. He argues that the court erred in sentencing him upon being informed by the jury that it had unanimously decided not to pass sentence. Such a decision by the jury is clearly indicative of the jurors’ scrupulous avoidance of passing a sentence based upon prejudice. In addition, the trial judge stated that she had not been affected by the disturbance. Finally, the court’s action was in compliance with Ark. Stat. Ann. § 41-802 (Repl. 1977) and Ark. Stat. Ann. § 43-2306 (Repl. 1977), which provide for the trial judge’s fixing punishment in cases when “the jury fails to agree on the punishment.” The trial court therefore acted within the bounds of its statutory authority.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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George K. Cracraft, Judge.
Leta Miller suffered a compensable injury on October 6, 1980. Shortly thereafter the employer furnished her a copy of Commission Rule 21 and Ark. Stat. Ann. § 81-1311. Appellee admitted receiving the notice and discussing it with her attorney. She stated that she fully understood the provisions of both the statute and the rule. During December 1980 she began seeing a doctor other than her treating physician. She cancelled her appointment with this doctor when her attorney advised that the employer would not consent to a change of physician. She then continued seeing the treating physician until he discharged her without disability on January 13, 1981. The next day, without notifying her employer or petitioning the Commission for a change of physicians she began receiving treatment from new, and admittedly unauthorized, physicians.
The employer controverted her claim for additional medical expense. The Commission found that the claimant was provided with a copy of the statute and Rule 21 and fully understood it but that she had made no attempt to comply with the provisions of either. It expressly found that the treatment by her new physician was unauthorized and obtained at her own peril. It further found that she was still experiencing substantial problems after January 13th and that she was genuinely seeking relief from pain rather than shopping for a favorable impairment rating. The Commission concluded:
Under these circumstances we believe the claimant’s treatment by Dr. Sherrill and his associates was reasonably necessary within the meaning of Ark. Stat. Ann. § 81-1311 and that such treatment should be retroactively approved under the principles estblished by Caldwell v. Vestal, 237 Ark. 142, 371 S.W.2d 836(1963); Southwestern Bell Tele. Co. v. Brown, 256 Ark. 54, 505 S.W.2d 207 (1974); Emerson Electric Co. v. White, 262 Ark. 376, 557 S.W.2d 189 (1977).
The appellants’ contention of error is two-pronged. They first contend that at the time of the unauthorized change of physicians the Legislature had by amendment eliminated from § 81-1311 that language which gave to the Commission a discretionary power to approve a change of physicians on findings that it was reasonable and necessary. We do not agree that the amendment was then in effect. Secondly appellants argue that in any event the Commission abused its discretion in approving the change. We agree that it did.
From its inception Ark. Stat. Ann. § 81-1311 of our Workers’ Compensation Act has provided that the Commission may order a change of physicians “when in its discretion such change is deemed necessary or desirable.” In those cases relied upon by the Commission the Supreme Court of Arkansas declared this discretionary power could be retroactively applied. This section was amended by 1979 Ark. Acts 253 which placed some limitations upon this existing discretionary power. The restriction was as follows:
The Commission may order change of physicians at the expense of the employer when in its discretion such change is necessary or desirable. Upon notice of injury, the injured employee shall be furnished a copy of Commission Rule 21 and a copy of Section 11 of the Workers’ Compensation Act. Subsequently if the injured employee desires to change physicians pursuant to the rule notice to this effect must be given to the employer. Any unauthorized medical expense incurred after receiving a copy of Rule 21 and a copy of Section 11 Workers’ Compensation Act shall not be the responsibility of the employer unless the employee gives the employer prior notice of intent to change physicians pursuant to the rules and eventually obtains an order from the Commission approving the change. (Emphasis added)
Rule 21 of the Rules of the Arkansas Workers’ Compensation Commission provides that a claimant may obtain a change in treating physicians at the employer’s expense, provided:
4) that the claimant files with the Commission a petition for the change of physician, gives the name of the physician to whom he wishes to change and asserts that the physician to whom he wishes to change is competent to treat his ailment; (Emphasis added)
Act 290 of 1981, Ark. Stat. Ann. §81-1311 (Supp. 1981), again amended this section of our Workers’ Compensation Act by deleting the words “when in its discretion such change is deemed necessary or desirable,” and the authority of the Commission to authorize a change of physicians was again more narrowly limited.
The appellants first argue that “in January of 1981, the relevant time period in which the claimant first began incurring the unauthorized medical expense” the 1981 amendment was in effect and the Commission was therefore without authority to retroactively approve a change of physicians on findings of reasonableness and necessity. We need not here determine what effect that amendment had upon procedure for changing physicians because appellants’ assumption that it was in effect in January 1981 is erroneous. The effective date of that Act was March 3,1981, a date subsequent to the events in issue here. The law applicable to this case was provided in the 1979 Amendment which appears as Ark. Stat. Ann. § 81-1311 (Supp. 1979). This Amendment, which has been quoted earlier in this opinion, clearly stated that any unauthorized medical expense would not be the responsibility of the employer un less the employee gave the employer prior notice of intent to change pursuant to therules. Rule21 requires thatapetition for change of physician be filed with the Commission. None has ever been filed. Our examination of the record discloses there was no such petition.
In prior cases affirming retroactive approval the courts have held that the Commission can, under its Rule 23, allow deviation from its own rules when “compliance is impractical or impossible.” Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The question then arises: Was appellee excused from filing a petition for charge of physicians pursuant to the Commission’s rules? The evidence here in conclusive that this appellee was fully aware of the requirements of Rule 21 that a petition be filed and she did not do so. There is nothing in the record to indicate that it was impossible or impractical for her to do so or that her failure was due to the action of the employer. In these respects, this case is clearly distinguishable from Mad Butcher and Moro, Inc., v. Davis, 6 Ark. App. 92, 638 S.W.2d 694 (1982).
The Commission is empowered to make rules and regulations for the administration of the Workers’ Compensation Act. While it may relax its rules when warranted by the circumstances, it may not disregard them. Any reasonable interpretation of its own rule may be accepted by the court if not contrary to statutory provision or irreconcilably contrary to the plain meaning of the regulation itself. Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W.2d 819 (1976).
The clear wording of the statute provides that after receiving the two specified documents “any unauthorized medical expense . . . shall not be the responsibility of the employer unless the employee gives the employer prior notice of intent to change physicians pursuant to the rules ... .’’In this case the appellee admitted that she had received a copy of the Commission’s Rule 21 and of § 11 of the Workers’ Compensation Act and that they had been fully explained to her by her attorney and she understood them. She further admitted that at the time she made the change, she was fully aware that the employer would not consent to a change of physicians and therefore she did not give notice at any time to her employer. Nor did she seek the aid of the Commission afforded by Rule 21.
We find absolutely nothing in this record which would excuse the appellee’s total disregard of the Commission’s rules and the clear wording of the statute. We conclude that the Workers’ Compensation Commission abused its discretion in retroactively imposing liability on the appellant for medical expenses it had not authorized under these circumstances.
Reversed.
This record was remanded to the Commission to complete the record and on return here no petition was included. | [
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Donald L. Corbin, Judge.
Appellant, Jimmie Joe Miller, plead guilty to burglary and theft of property January 27,1978. The Clark County Circuit Court sentenced him to five years imprisonment, stayed execution of that sentence and placed him on probation for a period of five years. Appellant did not appeal this sentence.
On January 14, 1983, a revocation hearing was held on the prosecutor’s petition to revoke appellant’s probation for his failure to support his dependents. The trial court revoked appellant’s probation and sentenced him to five years imprisonment.
On January 18, 1983, the trial court reconsidered its order of January 14, 1983, and substituted an order sentencing appellant to five years imprisonment, staying execution of that sentence, placing appellant on probation for a period of five years beginning January 14, 1983, and further fined him $1,000.00 and court costs. Appellant did not appeal this sentence.
On April 8, 1983, appellant again appeared before the trial court with his probation officer, apparently for continued failure to support his dependents or pay his fine. Neither appellant’s counsel nor the prosecuting attorney was present. At this hearing, the trial court revoked appellant’s probation, sentenced him to 15 years imprisonment, stayed execution for 9 years, 9 months and 19 days, subject to good behavior, and further fined him $915.00 and court costs. Appellant did not appeal this sentence.
On April 2, 1984, another revocation hearing was held upon the prosecutor’s motion to revoke appellant’s probation for failure to support his dependents since January 1983. The trial court revoked appellant’s probation and sentenced him to 8 years, 9 months and 26 days imprisonment. It is from this final order that appellant appeals.
Appellant raises four points for reversal: (1) That the trial court was without authority to sentence appellant to a term of imprisonment and suspend execution of that sentence; (2) that the trial court erred in setting a new sentence at a revocation hearing; (3) that the trial court erred in revoking appellant’s probation and imposing a greater sentence than originally imposed; and (4) that at the April 2, 1984 hearing, the court had no jurisdiction to impose any sentence on appellant because the term to which he had been sentenced expired on January 27, 1983.
Appellant first argues that the trial court had no authority to sentence him and then suspend execution of his sentence. Prior to the passage of the 1976 Criminal Code, a trial court was authorized to suspend the execution of a sentence. However, in 1976 this procedure was changed by Ark. Stat. Ann. § 41-803 (Supp. 1983), which states in pertinent part:
Authorized dispositions. — (1) No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article [§§ 41-[ XXX-XX-XXXX ]].
(5) If a defendant pleads or is found guilty of an offense other than capital murder, . . . the court may suspend imposition of sentence or place the defendant on probation, in accordance with Chapter 12 [§§ 41-1201 — 41-1211] of this Article.
The Arkansas Supreme Court in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), interpreted Ark. Stat. Ann. § 41-803 to mean that a trial court was only authorized to suspend imposition of a sentence not the execution of a sentence. Thus, appellant is correct in arguing that the trial court was not authorized -to suspend execution of his sentence. Appellant falls short of obtaining relief on this point due to his failure to make a timely objection or to appeal from that decision. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Having failed to make a timely appeal appellant was limited to raising this objection in post-conviction proceedings when the State attempted to enforce the sentence. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984).
Appellant argues that the trial court erred in setting a new sentence at the January 1983 revocation hearing. The trial court sentenced appellant to five years imprisonment on January 27,1978. On January 14,1983, the trial court had authority to revoke appellant’s probation and sentence him to the remainder of the five year sentence imposed in January 1978. Ark. Stat. Ann. § 43-2332 (Supp. 1983). The trial court was without authority to set a new sentence at that revocation hearing. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). However, no appeal was taken. Appellant was again limited to post-conviction relief. Deaton, supra.
Appellant argues that the trial court erred in imposing a greater sentence at the April 8, 1983 hearing than originally imposed. As with the previous point for reversal, the trial court at this hearing could only have sentenced appellant to the term remaining on his suspended sentence. Ark. Stat. Ann. § 43-2332. Because of appellant’s failure to object or appeal, he was again limited to post-conviction relief. Deaton, supra.
Appellant argues that the trial court was without j urisdiction to impose any sentence on appellant at the April 2, 1984 revocation hearing because the term to which he was originally sentenced expired on January 27, 1983. This argument overlooks the fact that since his original sentence, appellant has been sentenced on two other occasions. He failed to appeal either of .these other sentences and is therefore deemed to have accepted them. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). We would further point out that it is only upon execution of a sentence that the trial court loses j urisdiction to modify a sentence. Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983).
On April 2, 1984, the trial court revoked appellant’s probation and put into execution the remainder of the sentence imposed on April 8, 1983. This fourth sentencing is the only one appellant appealed. However, it is not a new sentence appellant appeals but the execution of one from which appellant failed to appeal. Under Deaton, we have no choice but to affirm the trial court’s action. Unfortunately, because this sentence was not appealed when imposed, any relief must be sought in post-conviction proceedings when the state attempts to enforce the sentence.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from the order of the circuit court dismissing an action for declaratory judgment.
Bankers & Shippers Insurance Company issued a policy of insurance to Julian Martin, Inc., covering Martin’s liability for injury and damage caused by the ownership, maintenance, or use of any covered vehicle. The policy also provided that Bankers would defend any suit against Martin seeking to recover such damages, and that anyone using such a vehicle with Martin’s permission was also an insured.
Martin, which is engaged in the freight-hauling business, instructed one of its employees, Theodore Kildow, to pick up a load of freight at Madison, Wisconsin, and take it to Mobile, Alabama, by the shortest major route. Bankers and Martin contend that Kildow violated those instructions by deviating from that route to come by his home in Arkansas, and during that deviation he wrecked Martin’s truck with five unauthorized passengers in it.
Alleging that one or more of the passengers were threatening litigation to recover damages for injuries received in the mishap, Bankers and Martin filed suit in chancery court asking for a declaratory judgment holding that neither of them have any liability to the passengers as a result of the occurrence.
Kildow and the passengers were made parties. Kildow filed an answer in which he asked that the complaint be dismissed because it did not “conform to the requirements established for obtaining relief under the Declaratory Judgment Act.” Three of the passengers filed pleadings in which they alleged chancery did not have jurisdiction, that Kildow was acting as an agent for Martin, that he was negligent, and that his negligence caused them injuries, and they asked for trial by jury and prayed for judgments in certain amounts against Kildow, Bankers, and Martin.
Upon motion by the passengers, the cause was transferred to circuit court, and upon motion of Bankers and Martin, over the objections of the passengers, the circuit court severed the declaratory judgment action from the tort action. The declaratory judgment action was then tried by the court without a jury, and after hearing testimony concerning the alleged deviation from scope of employment by Kildow, the judge entered an order containing the following pertinent paragraphs:
1. Plaintiffs seek a Declaratory Judgment to the effect that neither plaintiffs have any liability as a result of the actions of Theodore Kildow in the operation of the vehicle at the time of the one (1) vehicle collision resulting in personal injuries to Dewey Johnson, Jenny Mondy, Brenda Prater, Gene Hopkins and Susie Page.
2. That the Declaratory Judgment action should be dismissed.
It Is, Therefore, Considered, Ordered, Adjudged and Decreed, that the Declaratory Judgment sought is denied and the Declaratory Judgment action is dismissed.
On appeal, Bankers and Martin argue that the evidence clearly shows that the wreck occurred while Kildow had departed from his scope of employment and that they were entitled to a declaratory judgment holding that neither of them have any liability as a result of the occurrence. On the other hand, the appellees argue that the evidence made a question of fact for the jury to decide on that issue and that the appellants were not entitled to a declaratory judgment when the identical question was at issue in the tort suit between the parties.
We hold that the trial court was correct in dismissing the declaratory judgment action. Our act is the Uniform Declaratory Judgment Act, perhaps with minor modifications, see reporter’s notes to Civil Procedure Rule 57, and is codified as Ark. Stat. Ann. §§ 34-2501 — 2512 (Repl. 1962). It is intended to supplement ordinary causes of action, but not to supersede them. Mid-State Construction Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968). In 10A Wright, Miller & Kane, Federal Practice and Procedure, 729 (Civil 2d 1983), it is said:
The courts have held that “it is not one of the purposes of the declaratory judgments acts to enable a prospective negligence action defendant to obtain a declaration of non-liability.”
The above language was quoted in Frito-Lay, Inc. v. Dent, 373 F. Supp. 771 (N.D. Miss. 1974), and in UNC Resources, Inc. v. Benally, 518 F. Supp. 1046 (D. Ariz. 1981).
Ark. Stat. Ann. § 34-2502, supra, which is section 2 of Act 274 of 1953 (our original declaratory judgment act) provides, however, 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.
When Act 274 of 1953 was passed, section 2 (Ark. Stat. Ann. § 34-2502) omitted all reference to contracts. As the history line to § 34-2502 indicates, Act 35 of 1957 amended section 2 of the original act to restore the contract references to section 2 so that § 34-2502 now reads as quoted above. This is discussed in the case of Equity Mutual Ins. Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W.2d 688(1960), which also points out that the case of Lumbermen’s Mutual Casualty Co. v. Moses, 224 Ark. 67, 271 S.W.2d 780 (1954), held that our act, without any reference to contracts, did not authorize a declaratory judgment involving an insurance contract. After the amendment, however, the Equity Mutual case notes, contracts came within the purview of our act, and in USF&G Co. v. Downs, 230 Ark. 77, 320 S.W.2d 765 (1959), our Supreme Court rendered a declaratory judgment involving an insurance contract.
In the instant case, the real issue is whether Kildow was acting within the scope of his employment at the time of the occurrence. The problem, however, is whether it is proper to determine the issue about Kildow in this declaratory judgment action or to determine the whole matter in the pending tort suit. If it can be determined in this case, it is only because of Ark. Stat. Ann. § 34-2502, supra, which allows our courts to grant declaratory judgments involving contracts, since declaratory relief was unknown at common law and is permissible only by statutory authorization. 22 Am.Jur.2d Declaratory Judgment § 3 (1965).
In a similar case, with a similar statute, Florida held that no declaratory judgment should be granted. In Columbia Casualty Co. v. Zimmerman, 62 So.2d 338 (Fla. 1952), where the court said the question was “whether or not Mary Yates was driving the automobile with the knowledge and consent of the owners,” the opinion states:
It appears that the controversy which gives rise to this appeal does not embrace any question of the construction or validity of a statute, regulation, municipal ordinance, contract, deed, will or other article, memorandum or instrument or any part thereof. The thing which the appellant asserts it is seeking to have construed is an insurance policy, the validity or construction of any portion of which is not in question.
The policy provides, in effect, that if the automobile covered by the policy is being driven by someone without the knowledge and consent of the insured, the insurance company is not liable to the insured and is not required to defend under the policy. This provision is plain and unambiguous.
The question of whether or not the automobile was being driven with the knowledge and consent of the insured was a question of fact to be determined as any other question of fact and requires no construction of the insurance policy in order to determine the meaning thereof.
The declaratory judgment statute cannot and should not be extended to cover any such situation.
Later, in a case involving the same issue, a Florida Court of Appeals on its own motion remanded a declaratory judgment with directions that the complaint be dismissed. The court said where there was a jurisdictional error the matter should be raised by the court if the parties do not raise it and declaratory judgment, the court said, was not available to try disputed questions of fact as a determinative issue rather than to seek a construction of definite stated rights, status, or other relations. Smith v. Milwaukee Ins. Co., 197 So.2d 548 (Fla. Dist. Ct. App. 1967).
We think the Florida rationale clearly controls this case where we, like Florida, have held that declaratory judgment as to insurance contracts is permissible only because of statutory authorization and where, as here, the issue involved is a question of fact, not the construction or validity of a contract.
Not only that, but we prefer that rule. There are many circumstances involving insurance contracts where declaratory judgment serves a good and valid purpose, but this is not such a case. The trial of the tort case would solve the scope of employment question in this case and that is the case that should be tried. In 10A Federal Practice and Procedure, supra, at 729-30, it is said that though declaratory action might reduce multiple litigation with a number of injured persons, the courts have felt that this result should not outweigh the right of a personal injury plaintiff to choose the forum and the time, if at all, to assert his claim. Neither was the Declaratory Judgment Act designed to force the parties, as one court put it, to have a ‘ ‘dress rehearsal” of an important issue expected to be tried in the tort suit. See Employers’ Fire Insurance Company v. Beals, 240 A.2d 397 (R.I. 1968).
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James R. Cooper, Judge.
The appellant, Richard Jagitsch, d/b/a C.B.F. Aircraft, brought suit to collect the balance due from the sale of an airplane to the appellees, Commander Aviation Corporation and Monroe Chase. The appellees filed a motion to dismiss for lack of personal jurisdiction, which the trial court granted. From that decision, comes this appeal.
In April, 1980, the appellant, a resident of Arkansas, placed an advertisement in Trade-A-Plane magazine offering an airplane for sale. The appellee, Monroe Chase, received the magazine and became interested in purchasing the plane. Mr. Chase, as an officer of Commander Aviation Corporation, a North Dakota corporation, contacted the appellant by telephone on two separate occasions. Neither Mr. Chase nor any other agent of Commander Aviation ever came to Arkansas to negotiate the contract and the corporation did not transact any other business in this State. An agreement was subsequently reached between the parties and the plane was delivered to the appellees in North Dakota. The appellees claimed that, as a result of certain alleged defects in the airplane and agreements reached between the parties, it was mutually understood that the purchasers were to withhold $4,000.00 from the original contract price. The appellant contended that the appellees breached the contract and brought suit to collect the balance of $4,000.00. The trial court dismissed the complaint and amended complaint on the basis that the court lacked personal jurisdiction over the appellees.
Whether a trial court had in personam jurisdiction over non-resident defendants must be decided on the facts of each case. Arkansas Poultry Cooperative, Inc. v. Red Barn System, Inc., 468 F.2d 538 (8th Cir. 1972). To make this determination, this Court is guided by a two-part analysis. First, we must decide whether the appellees’ actions satisfy the “transacting business” requirement within the meaning of Ark. Stat. Ann. § 27-2502 (Repl. 1979) and, second, whether the exercise of in personam jurisdiction is consistent with due process under the fourteenth amendment to the United States Constitution. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F. 2d 651 (8th Cir. 1982).
Arkansas Statutes Annotated § 27-2502 (C) (1) (a) (Repl. 1979) provides that a trial court may exercise in personam jurisdiction over a person as to a cause of action arising from a non-resident “transacting any business in this State.” The purpose of the “transacting business” provision is to permit the trial court to exercise the maximum personal jurisdiction over non-resident defendants allowable by due process, Wisconsin Brick and Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981), and should be given a broad and liberal interpretation. Pennsalt Chemical Corp. v. Crown Cork and Seal Co., 244 Ark. 638, 426 S.W.2d 417 (1968).
There is little doubt that this State has an interest in resolving a suit brought by its own citizen under a contract. Thompson v. Ecological Science Corp., 421 F.2d 467 (8th Cir. 1970). Thus, even a single contractual transaction may sustain in personam jurisdiction. Wichman v. Hughes, 248 Ark. 121, 450 S.W.2d 294 (1970). See SD Leasing, Inc. v. Al Spain and Associates, Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). From the facts presented in the case at bar, we are satisfied that the appellees transacted business in this State. However, this finding does not end our inquiry for we must next determine whether due process would be violated by the exercise of in personam jurisdiction. See Roger N. Joyce & Associates, Inc. v. Paoli Steel Corp., 491 F. Supp. 1095 (E.D. Ark. 1980).
The United States Supreme Court has held that a State may exercise in personam jurisdiction over non-resident defendants if “minimum contacts” exist between the defendants and the forum State. The appellees must have performed “some act by which [they have] purposefully [availed themselves] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235 (1958). See Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211 (8th Cir. 1977). The contacts with the forum State must be such that the non-resident defendants should reasonably anticipate being “hauled” into an Arkansas court. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); International Shoe Co. v. Washington, 326 U.S. 310 (1945). These rules apply equally to non-resident buyers and sellers. See Mountaire Feeds, Inc., supra.
There is no exact formula for what is reasonable and fair under the circumstances. In Arkansas-Best Freight System, Inc. v. Youngblood, 359 F. Supp. 1115 (W.D. Ark. 1973), citing Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965), the court outlined five factors to be con sidered in determining whether due process requirements have been satisfied:
(1) the nature and quality of the contacts with the forum state; (2) the quantity of contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience to the parties.
See Carter Oil Co. v. Apex Towing Co., 532 F. Supp. 364 (E.D. Ark. 1981). Whether the “minimum contacts” requirement has been satisfied is a question of fact. Wisconsin Brick and Block Corp., supra.
Based upon the facts presented, we are satisfied that the appellees’ contacts with this State are insufficient to invoke in personam jurisdiction. Although in personam jurisdiction over non-resident defendants does not depend upon the physical presence of the defendants within this State, Arkansas-Best Freight System, Inc., supra, there has been no demonstration that the appellees performed any acts with the intention of invoking the jurisdiction of this State’s laws. We find that the appellees sufficiently proved that they had insufficient “minimum contacts” with this State. Therefore, we hold that the trial court was correct in dismissing the appellant’s complaint and amended complaint. See Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W.2d 620 (1978).
Affirmed. | [
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James R. Cooper, Judge.
The central issue on appeal is whether the chancellor erred in failing to find that the appellees breached the implied covenant of good faith arising out of their exclusive listing agreement with the appellant realty company. We reverse the chancellor’s decision, and hold that the appellees acted in bad faith by selling their residence to a purchaser procured by the appellant.
The appellees hired a contractor, G. Pat Murtha, to build their new home for the sum of $127,935.00. As an incentive, the builder agreed to purchase the home then owned by the appellees and to give them a $ 113,000.00 credit towards the purchase price of the new house. The builder and the appellees also agreed that, until the new home was completed, the appellees were free to attempt to sell their home at a price in excess of $ 113,000.00. The appellees then entered into an exclusive listing contract with the appellant, giving the appellant the right to sell the old house for a gross sales price of $127,000.00. The exclusive listing agreement provided that it would expire at the end of sixty (60) days, but the contract provided that the appellant would be entitled to a commission if, within six (6) months after the expiration date, the house was sold as a result of information provided by the appellant during the listing period.
During the listing period, the appellant presented an offer by the Williamses, who offered to purchase the old house for $115,000.00. The appellees rejected the offer because it would have netted them less than $113,000.00, the credit they were entitled to from Murtha. The Williamses rejected the appellees’ counteroffer, and no further negotiations took place between the Williamses, the appellees, and the appellant.
After the exclusive listing agreement expired, the appellees telephoned the Williamses and discussed arranging the sale of their residence through Murtha, the builder. Murtha never participated in any of the negotiations between the Williamses and the appellees, but the Williamses and the appellees agreed that the sale would be made to Murtha, who would then convey to the Williamses.
After a trial on the merits, the chancellor held that the sale to the builder did not result from information provided by the appellant during the exclusive listing period. From that decision, comes this appeal.
On appeal, the appellant argues that the sale to the builder was a sham conveyance arranged solely to defeat the appellant’s claim to a broker’s commission. We agree with the appellant, for the two-step transaction which resulted in title to the house vesting in the Williamses was merely a means of avoiding payment of the appellant’s commission.
We review chancery cases de novo, and do not reverse the chancellor unless his findings are clearly erroneous or against the preponderance of the evidence. Ark. R. C. P. Rule 52(a); Reeder v. Arkansas Louisiana Gas Co., 6 Ark. App. 385, 644 S.W.2d 291 (1982). In the case at bar, we hold that the chancellor’s decision is against the preponderance of the evidence.
It has long been the law in Arkansas that where a realtor who has been employed to sell land introduces a purchaser to the seller, and a sale results, the realtor is entitled to a commission even though the ultimate sale is made directly by the owner, Scott v. Patterson & Parker, 53 Ark. 49, 13 S.W. 419 (1890), even though the sale was made after the expiration of the listing agreement. Beck v. Neal, 228 Ark. 186, 306 S.W.2d 875 (1957).
The record shows that Murtha was not a party to any of the negotiations leading up to the sale from the appellees to the Williamses, and he testified that he had never even met the Williamses. All the negotiations were between the appellees and the Williamses. The Williamses presented the offer to the appellees, and Murtha accepted it on the terms presented. Although the two transactions were supposedly independent of each other, the two sales closed simultaneously, even though the appellees occupied their new home for about two months before the closing dates. It is also significant to note that no closing statement was ever prepared on the sale from the appellees to Murtha.
The evidence shows that Williams was concerned about the propriety of the two-step transaction and that Mr. Williams and the appellees discussed the possibility that the appellant would claim a commission. Appellee James Garland, who had previously worked for the appellant as a salesman, agreed with the Williamses that if a commission had to be paid, he would pay it. We hold that the evidence clearly shows that the appellees were the true sellers of their home to the Williamses, and that Murtha was simply a “straw man”.
We reverse and remand this case to the chancellor, with instructions to enter judgment in favor of the appellant for its commission, and for all other relief deemed proper by the chancellor, including the award of interest.
Reversed and remanded.
Cracraft, C.J., and Corbin, J., agree. | [
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Tom Glaze, Judge.
Appellants appeal from the chancellor’s order upholding a lease between appellee and Mary House, deceased. For reversal, appellants contend that the chancellor erred in (1) upholding the lease, (2) holding the renewal option valid, and (3) failing to hold that all hunting rights are held by the owner. We find no error and affirm.
On June 1,1978, Mary House leased her farm to appellee for $10,000 a year. The lease was to end on January 1, 1991, and could be renewed under the same terms and conditions. When the lease was executed, Miss House was ninety years old. Nine months following the execution of the lease, she was hospitalized and subsequently transferred to a nursing home, where she died in early 1981.
In her will, executed in 1975, House left her farm to appellants, and named Alan Stallings as executor. No copy of the 1978 lease to appellee was found among the decedent’s effects and the appellants became aware of it only when appellee told them of its existence after House died. After consulting an attorney, appellants notified appellee that the lease was invalid. Appellee then filed an action against appellants to enjoin them from harassing him. Appellants counterclaimed for a declaration that the lease was invalid.
For their first point, appellants contend that the chancellor erred in upholding the lease because (1) House was not mentally competent to enter a valid lease, (2) the consideration and term of the lease made it unconscionable, and (3) the acknowledgement was defective. Concerning the mental competence and uncon-scionability issues, the parties presented mixed or conflicting testimonies. The record reflects that House and appellee had entered into leases in 1972 and 1974 which were identical to the 1978 lease, except for the term. Although the 1974 lease was for a six-year term, it was superseded by the 1978 lease, which covered not only the time remaining under the 1974 lease, but included an additional ten-year term. Appellants argue the appellee unduly influenced House by taking advantage of her failing mental state. To support their argument, they presented testimony that she was unable to care for herself or read without a magnifying glass and that she received no independent counsel before executing the 1978 lease. Appellee’s witnesses testified that House had managed her farm for many years and was rational when the lease was executed. Significantly, Grace Farish, a long-time friend of House’s, testified that House desired a long-term lease with appellee so she would be secure during her lifetime. Farish further stated that House trusted appellee and wanted him to remain as her tenant.
We find the evidence is similarly conflicting when consider ing appellants’ argument that the lease was patently unconscionable because of the inadequate consideration appellee paid for it. Again, both sides presented witnesses who gave differing opinions concerning the fair rental value of House’s farm. They considered such factors as estimated crop yield, crop prices, and soil content. Appellants’ witnesses testified that a fair rental value would be in the range of $26,000. However, two of appellee’s witnesses, who had farmed House’s farm, stated that the actual crop yield was not as high as appellants’ witnesses had estimated, and that the property was difficult to utilize because it was divided into several sections. They related they would pay no more than $10,000 to rent the farm. Appellee also testified that he was required to perform many more duties than in other, normal farming operations.
From the foregoing and other evidence, the chancellor found that House knew the extent of her property, entered into the 1978 lease on her own initiative, had an attorney prepare the lease, expressed satisfaction with its terms, and desired appellee to remain as her tenant. He also found she had reasons for wanting a long-term lease, and the consideration was adequate.
Appellants have cited us to several cases where instruments have been invalidated due to incapacity or undue influence. Those cases notwithstanding, the rule on appeal is that the findings of the chancellor will not be reversed unless clearly against a preponderance of the evidence. Since the question of a preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). In this case, the chancellor made his findings based on evidence which was oftentimes conflicting, and even though we might have reached a different conclusion, we cannot say he was clearly wrong in the result he reached.
Appellants further contend that the lease is invalid because the acknowledgement was made by telephone. In support of their contention, they cite Ark. Stat. Ann. § 49-208 (Repl. 1971), which provides that an acknowledgment of an instrument affecting real estate must be made by “the grantor appearing in person” before the proper official. Here, Marjorie Waller, the notary public who had acknowledged the 1972 and 1974 leases, acknowledged the lease on June 2, 1978, upon receiving a telephone request from House. Waller testified that she knew House and recognized her voice on the telephone when House called to state she had signed the paper [lease]. These facts are similar to those in Abernathy v. Harris, 183 Ark. 22, 34 S.W.2d 765 (1931). There the court upheld a telephone acknowledgment of a mortgage when the notary testified he had known Harris for many years and was familiar with her voice. Here, as was true in Abernathy, the notary’s certificate of acknowledgment is regular on its face, and absent any finding of fraud or forgery, we conclude the telephone acknowledgment is valid.
Next, appellants argue that the chancellor erred in holding the renewal option valid. The following language from the lease is pertinent:
The term of this lease shall be from the first of June, 1978, to the first of January, 1991. The Tenant shall have the option of renewing this lease under the same terms and conditions as herein set out provided he shall notify the landlord in writing within three (3) months prior to the expiration of the lease term.
In the 1972 lease, the words, “for an additional four years,” followed the word “lease” in the second sentence quoted above, but those words had been scratched through and initialed by both appellee and House. Those words were omitted from the 1974 and 1978 leases. Appellants contend that this omission invalidates the provision because the renewal term is undefined. Appellants also point to appellee’s testimony that, although he and House never discussed it, appellee believed a new lease would have to be drawn up in order to renew.
Appellants cite Lonoke Nursing Home v. Wayne and Neill Bennett Family Partnership, 12 Ark. App. 282, 676 S.W.2d 461 (1984), wherein our Court stated the rule that an option in a written lease to renew upon terms and conditions to be agreed upon is void for uncertainty. In Lonoke, the lease provided that the terms, conditions, and rent would be agreed upon prior to the renewal date. In the instant case, no such lease provision exists. While appellants point to appellee’s testimony concerning his belief that he did not believe he could renew the 1978 lease until another one was drawn up, appellee also explained that he never recalled discussing the matter with House. In fact, as already noted, appellee and House omitted any mention in the lease that they must agree to the conditions and terms prior to a renewal lease.
Our supreme court has long held that a general covenant to renew is sufficiently certain because it imports a new lease like the old one upon the same terms and conditions. Keating v. Michael, 154 Ark. 267, 242 S.W. 563 (1922). Here, the term of the lease is provided in the same paragraph as the renewal option. Accordingly, we conclude that the chancellor, consistent with the Keating rule, was correct in holding the renewal lease valid for the same term specified in the 1978 lease.
Finally, appellants argue that the chancellor erred in failing to hold that appellants have exclusive control of hunting rights on the property. The chancellor ruled that appellants have the right to hunt on the property so long as they do not interfere with appellee’s farming operation, and that hunting rights are vested in appellants, appellee, and their guests. Our research has failed to reveal any Arkansas case law or statute dealing with hunting rights under a lease. Appellants cite several cases from other jurisdictions which hold that hunting and fishing rights remain with the landlord, but each of these cases was decided under a statute giving the landlord these rights. As previously noted, Arkansas has no such statute.
In the absence of statutory authority, we must turn to the common law. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979). Arkansas has adopted the common law of England as of 1607. See Ark. Stat. Ann. § 1-101 (Repl. 1976). Appellants have cited us to Copland v. Maxwell, 2 L.R.-S. & D. App. 103, 8 Scot. L. Rep. 450 (1871), contending that all hunting rights are vested in the landlord without special reservation. However, that case was decided under Scottish law, not English law, and in Copland, the House of Lords noted that “[i]n England . . .the right of shooting is conveyed to the tenant by the lease unless it is excluded. ...” 8 Scot. L. Rep. at 454. See also Moore v. Lord Plymouth, 7 Taunt. 614, 18 R.R. 604, 129 Eng. Rep. 245 (1817); A. Spencer, Woodfall’s Law of Landlord and Tenant, at 883 (21st ed. 1924). Accordingly, we hold that the chancellor did not err in granting hunting rights to appellee. Since the issue of the owners’ hunting rights is not raised, we need not reach that issue.
Affirmed.
Corbin and Mayfield, JJ., agree. | [
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Per Curiam.
Appellant has filed a motion asking that this matter be remanded to the Workers’ Compensation Commission for the commission to consider a joint petition to settle the case.
We, therefore, remand the record in this case to the commission and if the joint petition is approved, this appeal may be dismissed and if the joint petition is not approved, this appeal may be processed to decision upon application for brief time. | [
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Melvin Mayfield, Judge.
Appellant was convicted of operating a motor vehicle while under the influence of alcohol. He was arrested after his automobile left the road and went through a chain link fence. Officers on the scene observed that appellant’s eyes were red and watery, his face was flushed, he looked sleepy, was unsteady on his feet, and had an odor of alcohol about him. Appellant was taken to the Pope County Detention Center where a breathalyzer test was performed which indicated a blood alcohol content of. 11%. He was tried by a jury, found guilty of a second offense of DWI, sentenced to thirty (30) days in jail, assessed a fine and costs totaling $1,000 and had his driver’s license suspended for one year.
Appellant first argues that the court erred in admitting the results of the breathalyzer test into evidence since Officer Dilbeck, who calibrated the machine, testified that he did not know whether the test solution he used had been obtained from the Arkansas Department of Health or a private pharmaceutical company; did not know when the solution was purchased or how long it had been in the Pope County sheriff’s office; and did not know whose possession the solution had been in before the breathalyzer test, who had access to the bottle after the seal was broken, or how many calibrations had been made using the same solution.
We do not think these matters make the test results inadmissible. The officer testified that the solution was supposed to be a .10% solution — not off more than .01% — that it tested .09% on the breathalyzer and that this established the reliability of both the testing solution and the machine. The appellant attempts to analogize the rule requiring that a chain of custody be established in blood-testing cases to the present case, but the evidence reveals that the situation here is entirely different. The content of a blood sample is obviously not known before the test, while the alcohol content of a calibrating solution is known before the test. So, when the calibrating solution is tested with results as expected, this tends to prove the integrity of the solution and the machine. Officer Dilbeck was certified by the Arkansas Department of Health as an operator of the breathalyzer and we think his testimony about the alcoholic content of the solution used in the calibration of the machine was admissible. In Armstrong v. State, 5 Ark. App. 96, 633 S.W.2d 51 (1982), it was argued that since there was no evidence that the substance dispensed by a pharmacist had been chemically analyzed, the state had failed to prove the appellant had fraudulently obtained a controlled substance. After reviewing some cases, we said:
In the instant case we have the testimony of a licensed pharmacist who testified that he filled the prescription bottle from his larger container of Tussionex. Obviously he relied upon the representations of the supplier of the larger container in giving his opinion, but this is in keeping with Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977), and is authorized by Uniform Evidence Rule 703.
Appellant cites Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ark. App. 1979), as requiring strict compliance with health department regulations regarding calibration of the breathalyzer before the results will be admissible at trial. In that case, although the regulations required daily calibration of the machine, the evidence did not show that the instrument had been calibrated at all between May 10 and May 15. Under those circumstances, it was held that compliance with the regulations was not sufficiently substantial to permit the jury to be instructed on the presumption of intoxication based upon a test performed on May 13. In the instant case, however, the instrument was correctly calibrated with a solution of known alcohol content on the same day appellant was tested.
Appellant’s next contention is that the court erred in permitting testimony concerning practices not contained in the health department regulations. Here appellant is arguing that Officer Dilbeck was allowed to testify that he had been told at a health department training session that it was permissible to purchase the calibrating solution from either the department or from private suppliers. Appellant contends this was impermissible hearsay evidence. First, we think the testimony was not hearsay because it was not offered for the truth of the matter asserted but rather to explain why Officer Dilbeck thought it was proper to use a privately obtained solution. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). In the second place, Arkansas Department of Health, Regulations for Blood Alcohol Testing, at 26 & 28 (2nd revision 1984), require that approved calibrating devices and standard solutions be used, but do not specify where they are to be obtained. The trial court could properly take judicial notice of these regulations. Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982).
The appellant’s third argument is that Officer Dilbeck was erroneously permitted to testify to the contents of the health department regulations. This objection is based on what has been called the “best evidence” or “original writing” rule. See J. Reynolds, Arkansas Uniform Rules of Evidence, 207 (1983). Since the officer testified correctly as to what the regulations provide, appellant has not demonstrated any prejudice sustained by him and we do not reverse on the basis of nonprejudicial error. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982). Moreover, Unif. R. Evid. 1005 provides that if a copy of a public record cannot be obtained by the exercise of reasonable diligence, other evidence of its contents may be admitted.
705 S.W.2d 455
Finally, although appellant contends he was convicted solely on the basis of the result of the breathalyzer test, we note that even without that evidence there was substantial evidence to sustain his conviction. Appellant admitted to the officers on the accident scene that he had been driving the car. In addition, two police officers testified about the appellant’s appearance and condition, as detailed in the opening paragraph of this opinion, and testified that he was intoxicated. When viewed in the light most favorable to the state, as we must on appeal, we find that the officers’ testimony constitutes substantial evidence to support the jury’s verdict.
Affirmed.
Corbin and Glaze, JJ., agree.
Supplemental Opinion on Denial of Rehearing March 26, 1986
Melvin Mayfield, Judge. A petition for rehearing in this case calls our attention to certain factual errors in our original opinion; however, we find these errors do not change the result of our decision.
The record in this case shows that the type of instrument used to test appellant’s breath was an Alco-Analyzer Gas Chromatograph, Model 1000. In our original opinion, we said Arkansas Department of Health, Regulations for Blood Alcohol Testing, at 26 & 28 (2nd revision 1984), “require that approved calibrating devices and standard solutions be used, but do not specify where they are to be obtained.” Appellant’s petition for rehearing states that we referred to the wrong pages. While it is true that we should have referred to page 29 instead of 28, we actually made an even greater error.
Although the case of Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982), cited in our original opinion, makes it clear that both trial and appellate courts may take judicial notice of the regulations of state boards and agencies, we took judicial notice of regulations which became effective on April 15, 1984, when the offense in this case occurred on November 19,1983. The proper regulations at that time were those which became effective on April 28, 1970, as revised effective October 28, 1971. Those regulations, promulgated under authority of Section 2(c) of Act 106 of 1969, see Ark. Stat. Ann. § 75-1046(c)(Repl. 1979), contained the following provisions:
PART E. CALIBRATION
AP-340 Breath Testing Instruments. Instruments designed to test direct breath samples shall be calibrated no less frequently than once each day the instrument is in operation by a Senior Operator or Operator Supervisor, using appropriate solutions of ethyl alcohol, and using methods and techniques for calibration recommended by the manufacturer of the calibration device as approved by the Department.
AP-341 Other Methods. Procedures other than direct breath tests shall be calibrated with known concentrations of ethyl alcohol at least once each day that tests are run. This calibration shall be performed by an Operator Supervisor, Laboratory Director or under a Laboratory Director’s general supervision.
AP-342 Other Calibration Solutions. Gas Chro-matograph calibration may be accomplished by addition of an appropriate internal standard.
Although we cited the wrong regulations in our original opinion, we do not think this affects the result of our decision. Neither set of regulations provides, as contended by appellant in his original brief, that the calibrating solution must be obtained from the health department. Now, in his petition for rehearing, the appellant complains that he was unable to find out whether the calibrating solution was “standard” since the officer who calibrated the machine did not know where the solution came from. However, there was evidence that the officer was trained and certified by the health department, that the sheriff’s office purchased small containers labeled for use in mixing a .10% calibrating solution, that the proper amount of distilled water was mixed and heated to a certain temperature, and that this solution tested .09% on the machine. The officer said this established a proper test for use of the solution for the purpose of calibrating the machine. Substantial compliance with the health department regulations is all that is required. Sparrow v. State, 284 Ark. 396, 398, 683 S.W.2d 218 (1985). We think the test results were properly admitted into evidence.
The appellant’s petition for rehearing also points out that this case was submitted to the jury only on the question of whether he was in physical control of a motor vehicle while his blood alcohol content was .10% or more. From the briefs and abstract, we understood appellant was convicted of driving while intoxicated. However, the Arkansas Supreme Court has recently held that Ark. Stat. Ann. § 75-2503 (Supp. 1985) provides the same penalty for either conduct and that the “two conditions are simply different ways of proving a single violation.” See Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985), and Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). Thus, in either event, the conviction appealed from is supported by substantial evidence.
Corbin and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
Jerome Williams appeals his conviction for theft of property, for which he was sentenced, as a habitual offender, to serve a fifteen-year term in the Arkansas Department of Correction and to pay a fine of $5,000.00. For reversal, he contends the trial court erred in refusing to grant a mistrial. We affirm.
Appellant was tried by a jury and convicted after a two-day trial in Poinsett County Circuit Court. Testimony in the case was concluded the first day, and on the second day, after jury instructions were read, closing arguments were made, and the jury retired, appellant made his argument to the judge on his motion for a mistrial. Appellant’s attorney said that prior to trial, he had asked the sheriff that appellant not be handcuffed while he was transported to the courthouse. He stated he thought that it might prejudice some jurors if they were to see his client that way. On the second day of trial, appellant told his attorney that he had been led in handcuffs from a police car to the courthouse, and had been seen by most of the jurors who were standing in front of the courthouse. He recognized one juror specifically. Appellant said he also was observed later by another juror in the hallway of the courthouse. Appellant argues that he was denied a fair trial because the jurors saw him in handcuffs, and because the sheriff acted in bad faith.
The granting of a mistrial is a drastic remedy and should be granted only when justice cannot be accomplished by continuing the trial. Parks v. State, 11 Ark. App. 238, 669 S.W.2d 496 (1984). We will not reverse a judgment for an error which is unaccompanied by prejudice. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985); Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1985).
The Arkansas Supreme Court has held that it is not prejudicial per se when a defendant is brought into a courtroom handcuffed. Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977). More recently, the supreme court held that the trial court did not err by not declaring a mistrial when there was a brief, inadvertent sighting of the appellant in handcuffs by some of the jurors. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). There, as in this case, appellant offered no proof of any jurors actually having seen him, and he requested no voir dire to substantiate his allegation of prejudice. In addition, there was no affirmative showing of prejudice by appellant. The court in Hill relied extensively on United States v. Carr, 647 F.2d 867 (8th Cir. 1981). In Carr, the defendant was allegedly seen by several members of the jury panel while in handcuffs and a waist chain before trial. The court stated: “[B]rief and inadvertent exposure of defendants to jurors is not inherently prejudicial; the defendant must bear the burden of affirmatively demonstrating prejudice.” Id. at 868 (quoting United States v. Robinson, 645 F.2d 616, 617 (8th Cir. 1981)). While appellant attempts to distinguish Carr, claiming his exposure here was not brief, the record, as we already mentioned, belies such a claim.
Furthermore, the record fails to substantiate appellant’s allegation of bad faith on the part of the sheriff. No proof was offered to show that appellant was not transported according to established procedure. Nor was there evidence that there was an alternate route by which appellant could have been taken to avoid the public, or that the officers intentionally exposed him to the jurors. Accordingly, we affirm.
Affirmed.
Cracraft, C.J., and Cooper, J., agree.
Appellant argues he was deprived of an opportunity to show prejudice because the trial judge delayed the argument on his motion for a mistrial until after the jury retired. Because this incident arose on the second day of trial rather than when the trial began, counsel and the trial court were admittedly at a poorer stage at which to offer and consider the motion. Nonetheless, appellant was not precluded from offering evidence to support his motion and requesting that the court rule on it. | [
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Judith Rogers, Judge.
Dean Leasing, Inc., appeals a summary judgment entered by the Van Burén County Circuit Court for appellees, Van Burén County and Bobby Woodard, former Van Burén County Judge. On appeal, appellant does not appeal the summary judgment for the county, but argues that the trial judge erred in granting summary judgment to Woodard. We disagree and affirm.
In 1984, Woodard signed a lease-purchase agreement with appellant for a copier and copier stand on behalf of the county. Woodard signed the agreement in his representative capacity as county judge and in his personal capacity as guarantor of the agreement. The total of the installment payments amounted to over $6,000.00, and the county was to make sixty monthly payments. Although the agreement was entitled “Lease Agreement,” it made no provision for the return of the equipment to appellant. Appellant does not dispute that the lease was actually a lease purchase agreement. The county never advertised bids for a copy machine before this agreement was entered into, nor did it pass an appropriation ordinance or resolution for the purchase or lease of the equipment. Additionally, no order of the county court was passed or signed authorizing the county judge to enter into this transaction. The county used the equipment for approximately ten months; it then stopped making payments and notified appellant to pick up the equipment.
On April 1, 1986, appellant sued the county and Woodard for the remaining payments due under the contract. Although Woodard was served with process, he did not file an answer or appear. In its answer, the county denied that it entered into a valid agreement and asserted that the agreement was void ab initio because the parties did not comply with state law concerning such transactions. On November 2, 1987, the county moved for summary judgment on the ground that the lease-purchase transaction was invalid because the county did not advertise for bids or pass an appropriation ordinance or resolution for the equipment obtained from appellant. In its motion for summary judgment, the county also relied on the fact that the county court did not authorize Woodard to enter into the transaction. The county filed an affidavit of the Van Burén County Clerk in which he stated that no county court order, appropriation ordinance or resolution was prepared and filed regarding the transaction, and that there was no record made of any competitive bidding regarding the transaction.
On July 19,1988, the circuit judge issued a letter opinion in which he found that the contract was illegal and that the defenses raised by the county were applicable to Woodard. Summary judgment was then entered for the county and Woodard in which the circuit judge found that the the lease purchase contract is invalid and unenforceable for the reasons stated in the county’s motion for summary judgment and that the issues and defenses raised in the pleadings by the county are applicable to and inure to the benefit of Woodard.
On appeal, appellant does not dispute the circuit judge’s finding that the lease purchase agreement is invalid or that the county did not comply with the state laws regarding such transactions. Although appellant does not argue that Woodard should have been found in default for failure to file an answer or appear, we will briefly address this question. In this case, the county’s answer clearly inures to the benefit of Woodard because the county’s defense goes to the merits of the whole case and answers allegations directed at and common to Woodard. See Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980). Here, appellant simply argues that, although the principal obligation between appellant and the county is invalid and unenforceable, Woodard is not relieved of his personal guaranty obligation. We disagree.
Summary judgment is governed by Ark. R. Civ. P. 56, which provides in part that summary judgment may be rendered where the pleadings, depositions, answers to interrogatories and admissions on file, along with supporting affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy and should only be allowed when it is clear that there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984).
As we stated above, there is no dispute that the parties did not comply with Arkansas law regarding such transactions when they entered into this agreement, or that the agreement is invalid with respect to the county. Ark. Code Ann. Section 14-20-106 (1987) [formerly Ark. Stat. Ann. Section 17-416 (Repl. 1980)] provides:
No county court or agent of any county shall make any contract on behalf of the county unless an appropriation has been previously made therefor and is wholly or in part unexpended. In no event shall any county court or agent of any county make any contract in excess of any appropriation made, and the amount of the contract shall be limited to the amount of the appropriation made by the county quorum court.
Ark. Code Ann. Sections 14-22-102 and 14-22-104 (1987) [formerly Ark. Stat. Ann. Sections 17-1601 and 17-1603 (Supp. 1985)] provide that it is unlawful for any county official to make any purchases with county funds in excess of $5,000.00 unless, with certain exceptions not applicable here, prescribed bidding procedures are followed. Ark. Code Ann. Section 14-22-112 (1987) [formerly Ark. Stat. Ann. Section 17-1609 (Repl. 1980)] provides that “[n]o contract shall be awarded or any purchase made until it has been approved by the county court, and no contract shall be binding on any county until the court shall have issued its order of approval.”
Generally, a guarantor is not liable to the creditor unless the debtor is also bound under the principal contract:
The guaranty promise is a promise to answer for the debt or the default of the principal debtor under his contract with the creditor. Therefore, unless the debtor is bound under the principal contract, there is no obligation which is guaranteed and the guarantor is not liable to the creditor if the debtor fails to perform. Applying this principle, the guarantor is not liable to the creditor if there has been a total failure of consideration as to the underlying obligation, and a guarantor is partially discharged to the extent that there has been a partial failure of such consideration.
There are some instances in which the creditor cannot enforce the principal obligation against the debtor because the principal obligation is either illegal or impossible of performance. A problem then arises as to whether a guarantor of such an obligation (rendered illegal or impossible of performance) will be required by the law to perform his secondary or collateral promise. Generally, a promise of guaranty will not be enforced when the obligation which it secures is either illegal or impossible of performance. The reason for such nonenforcement may lie in the nature of the guaranty promise — that is, it may be that the guarantor promised to respond only if the principal debtor was legally required to perform and did not. However, when the defense of illegality is involved, the reason given for not enforcing the guaranty is that enforcement would, in large measure, defeat the intention of the legislature or the policy of the law which declared the obligation illegal. Therefore, enforcement of the guaranty will be refused when it appears that the principal obligation is violative of law, or contrary to public policy or precepts of morality.
... If usury has the effect of invalidating the principal contract, the guarantor may set up the fact of usury as a defense to a suit on a guaranty of the principal contract; but if usury does not make the principal contract invalid, the guaranty promise is binding on the guarantor.
38 Am. Jur. 2d Guaranty Section 51 (1968).
In Ryder Truck Rental, Inc. v. Kramer, 263 Ark. 169, 563 S.W.2d 451 (1978), the supreme court held that a guarantor on an installment note may assert the defense of usury in the obligation guaranteed and that, if the principal obligation is declared void on the ground of usury, the guaranty is also void: “ [i] n other words, if the debt which the guarantor has guaranteed is declared void and a nullity, the guarantee is also void, especially when, as here, the principal obligation and the guaranty thereof are parts of one entire transaction so that there is a matter of fact only one contract.” 263 Ark. at 176, 563 S.W.2d at 454.
Appellant inappropriately relies on the following quotation from 38 Am. Jur. 2d Guaranty Section 52 (1968) in support of its position:
If the principal obligation is not void (as it is where there is no consideration or mutual assent or where the principal contract is illegal or contrary to law), but is merely unenforceable against the debtor because of some matter of defense which is personal to the debtor, the guarantor may not successfully set up this matter to defeat an action by the creditor or obligee seeking to hold the guarantor liable on the contract of guaranty. Accordingly, the guarantor may not successfully defend an action brought on the contract of guaranty on the basis that the principal obligation was obtained through fraud practiced on the debtor, that the principal obligation was not in writing (and, therefore, did not conform to the requirements of the statute of frauds), that the principal obligation was subject to the defense of usury (where usury does not have the effect of rendering the obligation invalid), that the creditor was guilty of a breach of warranty, or that the debtor was under a disability, such as coverture, infancy, or incompetency. Again, the guarantor may not successfully defend the creditor’s action on the ground that the guaranteed debt or obligation, being the contract of a corporation, was ultra vires and for this reason is not enforceable by an action against the corporation.
We disagree with appellant, however, that this quotation supports its assertion that Woodard should not be relieved of his guaranty obligation. From the language quoted above, it is obvious that, where the principal contract is contrary to law, void or invalid, the guarantor is not liable on the contract of guaranty. In the case at bar, there is no dispute that the principal obligation between appellant and the county is invalid and contrary to Arkansas law. Further, the supreme court held in State Use of Prairie County v. Leathern & Co., 170 Ark. 1004, 282 S.W. 367 (1926), that warrants issued under a contract of the county court for an amount in excess of the available appropriation are absolutely void. See also Lyons Machinery Co. v. Pike County, 192 Ark. 531, 93 S.W.2d 130 (1936); American Disinfecting Co. v. Franklin County, 181 Ark. 659, 27 S.W.2d 95 (1930).
Since Arkansas law treats county contracts that are not in compliance with the Arkansas Code sections regarding such transactions as void, 38 Am. Jur. 2d Guaranty Section 52, cited above, and relied on by appellant, does not apply. Instead, we find the principles expressed in Section 51 of that source, quoted above, to control. As we stated, a promise of guaranty will not be enforced when the obligation which it secures is invalid or illegal. If this contract, which is admittedly not in compliance with state law and is invalid as to the county, were to be enforced against the county’s guarantor, the intention of the legislature in declaring such contracts invalid would be defeated.
We therefore hold that the circuit judge correctly entered summary judgment for appellee Woodard.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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D. Vaught, Judge.
This is an appeal from a summary judgment granted in favor of appellees. Appellants argue that the trial court erred because there were material facts left to be decided on the issue of whether the alleged negligence of appellees was the proximate cause of appellants’ automobile accident. We agree and reverse.
Appellants, James Pollard and Sharon Hunter, mother and natural guardian of Scott Hunter, filed a complaint against Floyd Frazier, Union Pacific Railroad (Union Pacific), and Tri-State Traffic Control, Inc. (Tri-State). Appellants later filed an amended complaint adding Frazier’s insurance carrier, Liberty Mutual Insurance Co. (Liberty Mutual), as a defendant. The suit arose out of an automobile accident.
On August 13, 1998, Scott Hunter was driving a vehicle in which his grandparents, James and Helen Hunter, were passengers. Hunter was driving north on Highway 49 approaching Highway 306, where he intended to turn east/right onto Highway 306. A railroad track operated by Union Pacific runs parallel to Highway 49 and intersects Highway 306, several feet east of the intersection. As Hunter approached the intersection, he slowed down with the intention of turning right onto Highway 306. Floyd Frazier, an employee of the Arkansas Highway and Transportation Department, was traveling behind Hunter in a state-owned service truck. Hunter, according to Frazier, turned on his right turn signal and began to slow down and bear off to the right like he was about to turn. Frazier then began to pass on the left, admittedly in a no-passing zone. As Hunter turned onto Highway 306, he saw a barricade and sign indicating that the railroad crossing on Highway 306 was closed for repairs by Union Pacific. A sign at the barricade read, “Go back to Hunter,” a town located a short distance south of the intersection of Highways 49 and 306. Hunter turned his vehicle back to the left, as if he were going to turn left on Highway 306, and into the path of Frazier’s truck. Frazier hit Hunter’s vehicle broadside, resulting in personal injuries to Hunter and his grandparents and damage to the vehicle.
Appellants filed their complaint alleging that appellees’ negligence was the proximate cause of their injuries. Specifically, appellants stated that Union Pacific hired Tri-State to place the barricade across the railroad tracks on Highway 306 and to place appropriate signs on Highway 49 to warn motorists on Highway 49 that the entrance onto Highway 306 had been barricaded. Appellants complained that Tri-State was negligent in failing to place any warning signs on Highway 49 advising motorists of the barricade, which was only a few feet east of the intersection. Appellants alleged that Union Pacific was negligent because it knew, prior to appellants’ accident, that Tri-State failed to place warning signs on Highway 49 and that the barricade was too close to the northbound lane. In addition, appellants alleged that Frazier was negligent in driving at an excessive rate of speed, in attempting to pass in a no-passing zone, and in failing to keep a proper lookout.
Tri-State filed a motion for summary judgment, contending that its alleged negligence was not the proximate cause of appellants’ injuries and that their proof of causation amounted to speculation and conjecture. Union Pacific joined the motion for summary judgment of Tri-State. After a hearing on June 9, 2000, the trial court granted summary judgment in favor of Tri-State and Union Pacific. Appellants filed motions to voluntarily nonsuit Frazier and Liberty Mutual, which the trial court granted. This appeal followed.
The supreme court has often stated the standard of review in summary-judgment cases:
The law is well setded that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). 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. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Shelton v. Fiser, 340 Ark. 89, 95-96, 8 S.W.3d 557, 561 (2000) (citing Adams v. Arthur, 333 Ark. at 62, 969 S.W.2d at 605).
The motion for summary judgment filed by Tri-State, which was adopted by Union Pacific, contends that its negligence was not the proximate cause of appellants’ injuries. It further stated that appellants’ proof of causation amounted to speculation and that they could not establish that their injuries were a natural and continuous result of the placement (or lack of placement) of any sign by TriState, as opposed to the negligence of Hunter or Frazier. Tri-State argued that the negligence of Hunter and Frazier were separate intervening causes of the accident.
Appellants argue that the question of whether the actions of Hunter and Frazier constituted subsequent intervening proximate causes of the accident is a question of fact to be decided by a jury and not a matter of law to be determined by the trial court on the grant of summary judgment. To establish a prima facie case of negligence, a plaintiff must demonstrate that the defendant breached the standard of care, that damages were sustained, and that the defendant’s actions were the proximate cause of those damages. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 181, 952 S.W.2d at 662. Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). In other words, proximate causation becomes a question of law only if reasonable minds could not differ. Id. The supreme court recently discussed intervening causes:
This Court has held that proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. Bennett v. Bell, 176 Ark. 690, 3 S.W.2d 996 (1928). The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to reheve the original actor of liability, if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. Butler v. Arkansas Power & Light Co., 186 Ark. 611, 54 S.W.2d 984; Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., 208 Ark. 370, 186 S.W.2d 780 (1945). The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. Butler v. Arkansas Power & Light Co., supra; Arkansas Power & Light Co. v. Marsh, supra. The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts or omission constituting the primary negligence. Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., supra.
Shannon v. Wilson, 329 Ark. 143, 157, 947 S.W.2d 349, 356 (1997).
Applying the above principles to the facts of this case, it is clear that Frazier’s passing in a no-passing zone and Hunter’s pulling out in front of Frazier’s vehicle without a turn signal were in and of themselves sufficient to stand as the cause of the injury. However, the intervening causes must also be independent causes. Appellants argue that the intervening causes were not independent. Rather, they state that Hunter’s turning to the left upon reaching the barricade was a normal response to the stimulus of a situation created by the negligence of appellees. They cite Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949), where the supreme court quoted the Restatement of Torts:
‘An intervening act of a human being . . . which is a normal response to the stimulus of a situation created by the actor’s negligent conduct is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about.’ Restatement, Torts, 443. ‘The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about if, (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.’ Restatement, Torts, 447.
In Hill, defendant Hill appealed a plaintiffs’ verdict claiming that his negligence was not the proximate cause of their injuries. The facts indicate that Hill owned a truck driven by Kimbrough. Kimbrough drove the truck and made a sudden stop without signaling. The Wilsons were traveling behind Kimbrough and were able to stop in time; however, Snider, who was traveling behind the Wilsons, was not able to stop and struck the Wilsons from behind, causing injuries to the Wilsons and their passengers. Appellant Hill argued that Snider’s negligence was an independent intervening cause. The supreme court rejected the argument and affirmed the plaintiffs’ verdict.
Appellants argue that Hunter’s actions were foreseeable to appellees or that appellees’ negligence made the accident more probable. It is foreseeable that when a road that intersects a highway is barricaded near an intersection, a driver, who initially begins to turn at the intersection and sees a sign indicating “Go back to Hunter,” will have to change , his course of action. Likewise, it is foreseeable that a driver, when approaching a vehicle appearing to turn right, would pass on the left, even in a no-passing zone. The issue of proximate cause becomes a question of law only when reasonable minds could not differ. City of Caddo Valley, supra. Based on the facts of this case, we cannot hold as a matter of law that the acts of Hunter and Frazier were independent intervening causes. Thus, we find that summary judgment was not appropriate in this case.
Reversed and remanded.
Robbins and Bird, JJ„ agree. | [
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Josephine Linker Hart, Judge.
Appellant Omar Almobarak brings this appeal, arguing that the trial court erred by refusing to set aside the confirmation of a public sale. Specifically, appellant contends that the terms of the notice of the public sale did not strictly comply with the requirements set forth in Ark. Code Ann. § 18-49-104 (1987), and that the property was sold for an inadequate price. We affirm.
Title to sixteen lots of land in Horseshoe Bend Estate in Benton County was quieted in appellant by an order filed on August 2, 2002. The order quieting title also imposed a lien to secure payment of approximately $40,000 for improvements made on the property by appellees, Darryl and Cindy McCoy. When the judgment for the improvements was not paid, appellees sought enforcement of the lien by obtaining an order that appointed a commissioner and directed that the property be sold at a public sale to the highest bidder. On October 24, 2002, the property was sold to the highest bidders, appellees, for $30,000.
Less than one hour after the order confirming the sale was entered on November 12, 2002, appellant filed an objection to the confirmation. When the trial court did not rule on appellant’s objection, it was deemed denied on December 12, 2002. From that denial, appellant brings this appeal, arguing that the notice of sale did not comply with Ark. Code Ann. § 18-49-104 and that the accepted bid for the property was inadequate.
An appellate court reviews questions of statutory interpretation de novo because it is the court’s responsibility to determine what a statute means. Simmons First Bank v. Bob Callahan Serv., 340 Ark. 692, 13 S.W.3d 570 (2000). A trial court’s conclusions on a question of law will be given no weight on appeal. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000). We will affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997).
The order foreclosing the lien appointed the circuit clerk, Sue Hodges, as commissioner of the sale. It also ordered the property to be sold to the highest bidder at a public sale after twenty days’ notice of the sale had been published in a newspaper of general circulation. The order provided that the sale should be made on three months’ credit with the purchaser giving security to the court for the purchase price and with a lien to continue on the property until payment of such purchase price. Notice of the sale was published in accordance with the order on October 3 and 10, 2002, and provided in pertinent part:
Terms of Sale: Purchaser will be required to pay full amount of bid the day of sale or ten percent down with remaining balance due in 90 days bearing interest from the date of sale. Purchaser will also be required to provide a bond or proof of security for remaining balance.
Both parties attended the sale on October 24, 2002, and bid on the property. The property was sold to appellees for $30,000. On October 30, 2002, appellant’s counsel wrote to the circuit clerk, who was also the commissioner of the sale, that appellant intended to object to the sale. The confirmation of sale was filed on November 12, 2002, at 8:11 a.m. Appellant’s objection, however, was not filed until 8:55 a.m. on the same day.
For his first point on appeal, appellant argues that the notice of public sale did not comply with Ark. Code Ann. § 18-49-104 or the trial court’s decree setting forth the court’s requirements for the sale. Arkansas Code Annotated section 18-49-104 states in part:
Sales of real property made by court order shall be on a credit of not less than three (3) months nor more than six (6) months, or on installments equivalent to not more than four (4) months credit on the whole, to be determined by the court.
Citing Nineteen Corporation v. Guaranty Financial Corporation, 246 Ark. 400, 438 S.W.2d 685 (1969) (superseded by statute on other grounds), appellant asserts that the sale did not comply with the statute because the law requires that the sale be made on credit of not less than three months, and here, the published notice required a potential buyer to make a full payment on the day of the sale, or at a minimum pay ten percent of his winning bid. Further, he argues, citing Welch v. Hicks, 27 Ark. 292 (1871), that the notice provisions of the statute must be strictly construed. Thus, he contends that the court should not have confirmed the sale.
For his second argument, appellant asserts that because the bid on the property was inadequate, the trial court erred in confirming the sale of the property. Citing Looper v. Madison Guaranty Savings & Loan Association, 292 Ark. 225, 729 S.W.2d 156 (1987), appellant argues that the court's have historically refused to confirm judicial sales when the bid allows a purchaser to procure the property for a grossly inadequate price. Also, citing Mulkey v. White, 219 Ark. 441, 242 S.W.2d 836 (1951) and Moore v. McJudkins, 136 Ark. 292, 206 S.W.2d 445 (1918), appellant asserts that when the inadequate price is combined with other irregularities in the sale process, appellate courts have declared that a new sale must take place. In Moore, the court, citing Graffam v. Burgess, 117 U.S. 180 (1886), stated:
If the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property , or party interested in it, has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold.
Flere, Jerry Danehower, witness for appellees, testified that he was a real-estate appraiser, that the value of the unimproved property in June of 1996 was $15,000, and that the value of the property, as improved, on August 21, 2000, was $60,000. Appel-lees purchased the property at the public'sale for $30,000.
We decline to address whether appellant is correct in his assessment of the law on either issue because we affirm based on a different point. In Clarke v. Federal Land Bank of St. Louis, 197 Ark. 1094, 126 S.W.2d 601 (1939), our supreme court held that a decree confirming the commissioner’s report of a foreclosure sale imports a finding that the terms of the decree and provisions of the applicable statutes were complied with, and objections made thereafter which offer no reason why they were not made before the confirmation came too late.
We also note that Clarke is in accordance with other general authority. “The confirmation of a mortgage foreclosure sale is an act of consent, sanction, and approval which the court gives to the sale; and it is a judicial, rather than a ministerial, act, even where no contest is made.” 59A C.J.S. Mortgages § 872 (1998). “It is generally considered that a foreclosure sale ordered by a court of equity is subject to confirmation by the court and that the sale is not final or complete or binding or conclusive, or is not fully a sale or a true sale in the legal sense or a legal sale or valid as such, unless, and until, it is confirmed, it being nothing more, prior to confirmation, than an unexecuted sale or an unaccepted offer to purchase.” Id. Objections to confirmation should be seasonable and specific. They should not include objections which might and should have been made before the decree, or objections to the decree itself unless they involve the jurisdiction of the court to render the decree. 59A C.J.S. Mortgages § 874 (1998).
Appellant was under no obligation to present his objections to the sale either before or at the time of the sale. However, appellant must present all of his grounds for objection prior to the order of confirmation. Here, appellant appeared at the sale and participated in the bidding process on October 24, 2002. Thereafter, he failed to file an objection until after the order of confirmation was filed on November 12, 2002, at 8:11 a.m.
In order to be considered, an objection to the sale must be filed before the confirmation of sale is filed. See Clarke. Although appellant’s objection was filed a mere forty-four minutes after the sale was confirmed, we must affirm the trial court’s confirmation of the public sale.
Affirmed.
Bird and Vaught, JJ., agree.
After appellant attempted to file the record on appeal on April 8, 2003, he was directed by the Supreme Court Clerk to file a motion for rule on the clerk because the notice of appeal appeared untimely on its face. Appellant’s motion for rule on the clerk was granted on May 8,2003. | [
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Josephine Linker Hart, Judge.
This appeal arises from a lawsuit filed by appellees George Mackey and Jones & Mackey Construction Co., LLC, against appellant Superior Federal Bank for breach of contract, promissory estoppel, intentional interference with contractual relations, defamation, and punitive damages. Following a nine-day trial, the jury returned a verdict by interrogatories and awarded the following damages to the LLC; $411,000 for breach of contract, $210,000 for promissory estoppel, $175,000 for defamation, and $5,000,000 in punitive damages. The trial court set aside the promissory-estoppel verdict and awarded the LLC postjudgment interest of 10% on the breach-of-contract count and 6.25% on the remaining counts.
Appellant makes five arguments on appeal: 1) the trial court should have granted a directed verdict on the defamation count; 2) the trial court should have remitted the punitive-damage award; 3) the trial court should have granted a directed verdict on the breach-of-contract count; 4) the trial court erred in allowing jury-members to question witnesses; 5) the trial court erred in instructing the jury on spoliation of evidence. The LLC makes two arguments on cross-appeal: 1) the trial court erred in awarding postjudgment interest at a rate of less than 10%; 2) the trial court erred in setting aside the promissory-estoppel award. On direct appeal, we affirm the compensatory damages for defamation, reverse the breach-of-contract award, and remand to the trial court for further consideration of the punitive-damage award. On cross-appeal, we affirm the award of postjudgment interest and reinstate the promissory-estoppel verdict.
Background Facts
George Mackeyis the sole owner of Jones & Mackey Construction Co., LLC. His background is in accounting and banking, and he is a former vice president of the Arkansas Development Finance Authority. Testimony at trial showed that, prior to the incidents that led to this lawsuit, Mackey enjoyed a stellar reputation. Witnesses testified that his credibility was without question and that he had been successful in his endeavors. In early 1998, Mackey decided to pursue a career in the construction business. While still with the ADFA, he joined forces with Mr. Robert Jones, who had twenty-five years of building experience, and together they completed several residential building projects.
In late 1998, Jones and Mackey began to do business in Faulkner County. They constructed a home in Conway, which was financed by a construction loan through First Community Bank. Shortly thereafter, Mackey received a phone call from Rick Baney, one of appellant’s loan officers. Baney told Mackey that appellant was trying to establish a greater presence in the Conway lending market and would like an opportunity to finance Mackey’s next project. As a result, in early 1999, appellant financed appel-lees’ purchase of two residential lots for approximately $122,000 and financed construction of a home for $316,000. At about this same time, Mackey became sole owner of the LLC.
In early .1999, Mackey developed a plan to purchase a piece of property near the hospital in Conway and to construct a medical-office building. In April 1999, the LLC obtained a $270,000 loan from appellant to purchase the land Mackey had selected. Mackey then began to develop the .property and incur expenses, including demolition of a building on the property, hiring an architect, and hiring a project manager. However, on May 10, 1999, the University of Central Arkansas, which owned property adjacent to the LLC parcel, filed a petition in Faulkner County Circuit Court to prevent all work on the property, pending negotiations for it to acquire the property through eminent domain. Mackey resisted UCA’s petition and called upon appellant’s representatives to attend the hearing and testify that the LLC had received financing for a viable project on the property. Steve Bryan and Rick Baney attended the hearing on behalf of appellant but were never called to testify. Following a May 17, 1999 hearing, the circuit judge denied UCA’s petition.
The next day, May 18, 1999, Rick Baney sent a letter to George Mackey. The letter stated that it served as “a conditional commitment for approval of a $1,800,000 construction financing” and set forth several conditions that the LLC would have to meet to obtain the loan. As we will discuss in greater detail infra, the LLC contends that this letter created a contract whereby appellant promised to provide construction financing for the medical-office building. Upon receiving this letter, Mackey tendered his resignation to the ADFA and began work on the building. However, on June 7, 1999, Mackey received a fax from Rick Baney. The fax implied that the construction financing had not yet been approved, and it included several conditions that had not been set out in the May 18 letter.
In an attempt to settle the matter and obtain his funding, Mackey met with Tom Wetzel, appellant’s regional manager of commercial loans. He and Wetzel clashed immediately, and their relationship deteriorated to the point of outright hostility. Wetzel ultimately sent Mackey the following letter on August 24, 1999, declining appellees’ request for construction financing:
Please be advised that as of this date Superior Federal Bank is declining the above referenced loan request for $1,600,000 [sic] due to lack of capital injection on your part. Current financial statements both personal and business indicate an inability to fund your portion of the cash required.
According to appellees, this letter from appellant refusing to finance the construction on the medical-office building constituted a breach of the May 18 commitment letter.
In addition to the construction financing controversy, which would become the basis for the LLC’s breach-of-contract and promissory-estoppel claims, five incidents took place between June and October of 1999 that would become the basis for appellees’ defamation claims. We will set these incidences out in greater detail later in the opinion, but they generally involved: 1) appellant returning a series of checks drawn on the LLC account marked insufficient funds; 2) appellant’s representation to the Gospel Temple church, which had hired the LLC to construct a sanctuary, that the LLC was not on appellant’s approved contractors list; 3) Wetzel’s statement to a Mr. Frank Waite, an officer at another bank, that appellant was no longer doing business with Mr. Mackey; 4) Wetzel’s statement to a Mr. Bernard Veasley, who was trying to help Mackey secure financing, that Mackey was “f|s**ing up”; 5) Wetzel’s statement to Veasley that Mackey was a “big, fat slob” and a “big, black gorilla.” When the construction financing on the medical office building fell through, the LLC began to lose money rapidly and was unable to pay its bills or continue construction on other projects. Ultimately, numerous lawsuits would be filed against the LLC, and the company would lose a great deal of money. Further, Mackey’s and the LLC’s once excellent reputations were eroded to the point that Mackey was referred to by one witness as a pariah.
On May 1, 2000, appellees sued appellant in Pulaski County Circuit Court, alleging that they had committed substantial resources to the medical-building project in reliance on appellant’s commitment to provide financing and suffered considerable financial losses when appellant failed to follow through. They also alleged that they were defamed by appellant, which caused further damage to their reputations and business interests. During the course of the trial, appellant moved for a directed verdict on the defamation, breach-of-contract, and promissory-estoppel counts, all of which the trial court denied. Judgment was ultimately entered for the LLC on the defamation and contract counts, and appellant now appeals from that judgment.
Defamation
For its first argument on appeal, appellant contends that the trial court erred in failing to grant a directed verdict on the defamation count. In reviewing a denial of a motion for a directed verdict, our task is to determine whether the jury’s verdict is supported by substantial evidence. Tricou v. ACI Mgmt., Inc., 37 Ark. App. 51, 823 S.W.2d 924 (1992). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. J.B. Hunt Transp. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995). When determining the sufficiency of the evidence, the appellate courts review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
The following elements must be proved to support a claim of defamation: (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; (6) damages. Addington v. Wal-Mart Stores, Inc., 81 Ark. App. 441, 105 S.W.3d 369 (2003). A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Id.
Appellees’ claims for defamation were based on the five statements previously mentioned. For the moment, we put aside the last two statements, which were made about Mr. Mackey personally, and focus on those that directly pertain to the LLC. First, we look to appellant’s statement that the LLC was not on its approved-contractors list. The events leading up to the statement are as follows. On August 27, 1999, the Gospel Temple Baptist Church obtained a $300,000 loan from appellant to build a new sanctuary. The church had previously entered into a contract with the LLC to construct the sanctuary, and it paid the LLC a deposit of $133,000. Thereafter, Mr. Paul Woolfolk, who served on the church building committee, communicated with at least one and possibly two of appellant’s officers. Steve Griffen, the manager of appellant’s construction lending department, testified that the church called him asking for consideration of a loan request, and when the church indicated that the LLC would be the contractor, Griffin checked the approved builders list and told the church that the LLC was not on it. Loan officer Steve Bryan testified that he spoke with Woolfolk when the church was preparing to enter the construction phase of its project. Bryan said that, when he learned that the church had given the building contract to the LLC, he told Woolfolk that appellant could not be involved in the project due to “a conflict of interest,” allegedly referencing the troubles that were beginning to surface between Mackey and appellant over construction financing for the medical building. Woolfolk testified that Bryan told him that appellant would not finance the project if the LLC was the contractor and that the LLC was not on appellant’s list of approved contractors. As a result, Woolfolk said, the church attempted to secure financing with another institution, Regions Bank. Regions approved a $280,000 loan, contingent on, among other things, the LLC furnishing a performance bond. When the LLC could not obtain a bond, the church canceled its contract with the LLC and asked for a refund of the $133,000.
Appellant argues first that the statement that the LLC was not on the approved contractors list was true and that the truth of a statement is a complete defense to defamation. See Wirges v. Brewer, 239 Ark. 317, 389 S.W.2d 226 (1965). In our view, the truth of the statement was disputed because there was evidence that appellant did not actually maintain an approved contractors list. Although Steve Griffen testified as to the existence of the list, he could not produce a copy of it. Further, he testified in his deposition that there was no commercial contractors list, although there was a residential list. Rick Baney, appellant’s loan officer, testified as follows:
Question: Insofar as you know today, as of August 1999, when you left the bank, there was no approved builders list existing at the bank?
Answer: Not that I know of.
Question: So if somebody said that they can’t do business with somebody because they’re not on the approved builders list, that would be a false statement?
Answer: As far as I know as of August of 1999.
Steve Bryan testified that he did not recall whether appellant had an approved contractors list. Finally, George Mackey, who had done business with appellant as a contractor, testified that he had never heard of an approved contractors list. Viewing this testimony in the fight most favorable to appellees, we conclude that there was substantial evidence from which the jury could have found that the statement was false.
Appellant argues next that, even if the statement was false, the LLC did not prove that it sustained damages in connection with the statement. In order for liability for defamation to attach, there must be evidence that demonstrates a causal connection between defamatory statements made and the injury to reputation. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). A plaintiff must establish actual damage to his reputation, but the showing of harm may be slight. Id. A plaintiff must prove that the defamatory statements have been communicated to others and that the statements have affected those relations detrimentally. Id.
We believe there was substantial evidence that the LLC’s relations with the Gospel Temple Church were detrimentally affected as the result of the statement. Paul Woolfolk testified that the church terminated the contract with the LLC in part because of appellant’s statement. This caused the LLC to lose the money it would have made on the contract and to become liable for return of the $133,000. Further, it is clear that appellant’s statement set in motion the series of events that led to the termination of the church’s contract with the LLC. Fiad appellant not made the false statement, the LLC would not have been in the position of being required to meet the demands of another lending institution. Additionally, Steve Griffen testified in his deposition that customers often come to the bank for guidance regarding “who they are dealing with” and that a bank wants to make sure its customer is dealing with a reputable person. He responded affirmatively to counsel’s question that the action of telling a customer that a builder was not on an approved fist would imply that the person “was not of proper repute to do business with.” Finally, although the church maintained the LLC as its contractor even after appellant made the statement about the fist, there is evidence that the church did so because it had a contract with the LLC, not because it believed the LLC’s reputation was untarnished. The combination of these factors leads us to conclude that there was substantial evidence that the LLC sustained reputational damage as a result of appellant’s statement. See generally Northport Health Servs. v. Owens, 82 Ark. App. 355, 107 S.W.3d 889 (2003).
For its final argument regarding this statement, appellant contends that the statement was privileged. A publication may be conditionally privileged if the circumstances induce a correct or reasonable belief that (1) there is information that affects a sufficiently important interest of the recipient or a third person; and (2) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). However, the qualified privilege must be exercised in a reasonable manner and for a proper purpose. Id. The privilege may be lost if it is abused by excessive publication, if the statement is made with malice, or if the statement is made with a lack of grounds for belief in the truth of the statement. Id. The question of whether a particular statement falls outside the scope of the qualified privilege for one of these reasons is a question of fact for the jury. Id.
Appellant relies on Pierce v. Bank One Franklin, 618 N.E.2d 16 (Ind. Ct. App. 1993), and West v. Peoples Bank & Trust Co., 14 Ohio App. 2d 69, 236 N.E.2d 679 (1967), for their holdings that a bank’s defamatory statement to a third party may be privileged if the need exists for full and unrestricted communication on a subject in which both parties have a common interest or duty. We agree that, in many instances a bank must be free to impart information to its customers about third persons and that a bank may sometimes have a duty to do so. However, the bank may not exceed the scope of its privilege. Given the controversy in this case over whether an approved builders list actually existed, there is substantial evidence that appellant did not make the statement in good faith and lost any privilege it may have had by making the statement with a lack of grounds for belief in its truth.
Having determined that the jury’s defamation verdict was supported by the above statement, it is not necessary that we analyze whether the verdict is supported by the remaining statements. The jury, in its answers to interrogatories, did not clearly indicate which statement or statements it found defamatory, only that defamatory material was published and the LLC was damaged as a result. Thus, in the absence of a specific finding by the jury, we may affirm if any one statement served as substantial evidence of defamation. See generally Elk Corp. of Ark. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987) (affirming where the jury’s verdict was supportable on any one of several theories presented). However, in the interest of providing a complete account of the events that occurred in this case, and because it may prove useful to the trial court’s reconsideration of the punitive-damage issue, discussed infra, we will briefly address the other four statements that formed the basis of appellees’ defamation claim.
The LLC also contended below that it was defamed by appellant returning some of its checks marked “NSF” (insufficient funds). George Mackey testified at trial that he had established a course of dealing with appellant concerning the LLC’s checking account. He said that the LLC had a “controlled overdraft” account in which the bank would cover overdrafts up to a certain amount for a short period of time. Mackey testified that he was told not to let the overdraft amount on the LLC account exceed $25,000 to $40,000. Steve Griffen testified that, until November of 2001, the bank had a system whereby it could code certain accounts to permit short-term overdrafts of particular amounts, possibly up to $50,000, although he could not recall if the LLC had participated in that system. Appellant’s officer Steve Park also confirmed the existence of such a practice.
In June of 1999, Mackey deposited a $65,000 check into the LLC account and immediately wrote $40,000 in checks thereon. As it happened, the $65,000 check was bad, and Mackey was notified of that fact. He very quickly deposited $40,000 to $50,000 to cover the checks the LLC had written. However, those checks were later returned marked NSF, and appellant accused Mackey of check kiting.
Appellant argues on appeal that the NSF designation cannot serve as a basis for a defamation action because the designation was true, i.e., the LLC did not in fact have sufficient funds in its account to cover the checks it had written. Appellant relies on Kiley v. First National Bank of Maryland, 102 Md. App. 317, 649 A.2d 1145 (1994), in which the court held that a plaintiffs defamation action based on a bank’s dishonor of a check must fail where plaintiffs funds were, in fact, insufficient to cover the checks.
The case before us has one important aspect that the Kiley case did not. Viewing the evidence in the light most favorable to appellees, there was a course of dealing between the LLC and appellant whereby appellant would cover any overdrafts for a short period of time. It is possible that the jury, in light of the appellant’s usual practice of accepting certain overdrafts as payable, could conclude that there were in actuality sufficient funds available to cover the LLC’s checks when they were presented and that appellant’s representation otherwise was false. Thus, there is substantial evidence to prove the element of falsity. However, the LLC presented virtually no evidence to establish that the NSF notation on the checks resulted in damage to the LLC’s reputation. None of the payees of the checks testified, nor did anyone testify who had seen one of the checks. Therefore, despite our conviction that appellant’s conduct in this instance was particularly egregious and seemingly calculated to do harm to the LLC by unexplainedly abandoning an established practice, we decline to hold that it supports the jury’s defamation verdict.
The next statement was made by appellant’s officer Tom Wetzel. Wetzel told Frank Waite of Regions Bank that appellant was no longer doing business with Mackey. This statement was made at the time Regions was considering the possibility of financing the Gospel Temple construction after appellant declined to do so. At some point, Wetzel told Waite that appellant wasn’t “lending Mr. Mackey any more money” and that appellant was “no longer doing business with Mr. Mackey.” On appeal, appellant argues that 1) the statement was true and 2) the LLC proved no reputational injury.
Appellant is correct that Wetzel’s statement was- true because it appears that the statement was made after appellant had declined the LLC’s loan request. However, appellees contend that appellant told a half-truth and that the statement carried a derogatory implication that Mackey and the LLC were unfit to do business with. The concept of defamation by innuendo was considered in Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982), where the court said, “The words to be defamatory in such cases should be susceptible of two meanings, one defamatory and one harmless. In that regard, we read the words in their plain and natural meaning, as they would be interpreted by a reader of the newspaper considering the articles as a whole.” Id. at 461, 642 S.W.2d at 878. The court also said that it would not strain to find a defamatory meaning in such instances. Id.
We believe that there is substantial evidence from which the jury could have found that the statement was damning enough to contain a defamatory implication. The statement was incomplete because it tended to imply that appellees were unworthy to loan money to when in fact appellant and appellees broke off relations over the construction-financing conflict. Further, the jury was not required to view the statement in a vacuum. In determining whether the statement carried a defamatory meaning or a harmless meaning, the jury could consider the fact that Tom Wetzel made other disparaging statements about appellees as well, which will be detailed shortly. However, as in the case of the insufficient-funds checks, appellees did not provide evidence to show that the communication of this statement to Frank Waite caused reputational damage. Waite testified that he had no problem with the LLC being the contractor on the Gospel Temple Construction. Therefore, we decline to uphold the jury’s verdict on the basis of this statement.
Finally, we come to the two statements that Tom Wetzel made about George Mackey. These statements were made by Wetzel to Bernard Veasley, who was attempting to intercede with appellant and help Mackey obtain permanent financing for the medical building project. At Mackey’s request, Veasley went to see Wetzel to assure him that he had a “take-out” lender who was prepared to take out the construction loan. When he arrived to see Wetzel, he overheard a phone conversation between Wetzel and Mackey on the speaker phone in which they were arguing over financing. Later, Wetzel told Veasey that Mackey was a “big, fat, damn slob” who was “P^ing up.” Wetzel also called Mackey “a big, black gorilla.”
There is no doubt that these statements are defamatory in nature. They carry a meaning that Mackey was incompetent in running his business and did not possess the human mental wherewithal to do so. Further, actual reputational damage was caused. Veasely testified that he would no longer do business with Mackey after hearing that he was “messing up.” However, appellant argues that these statements reference Mackey personally and so cannot be used to support a defamation verdict in favor of the LLC. We have found no Arkansas case on point and the parties have cited none, regarding whether a company may be defamed by statements made about one of its officers. Because we have already determined that the jury’s defamation verdict is supported by substantial evidence, we decline to break new ground on this issue. However, we take this opportunity to express our revulsion toward such malicious and hateful language uttered by a bank about its customer.
To conclude on this point, we affirm the trial court’s decision to deny a directed verdict on the LLC’s defamation claim and affirm the $175,000 verdict.
Punitive Damages
Appellant’s argument on this point is twofold. First, it argues that there was not substantial evidence to support punitive damages. Second, it argues that the punitive-damage award was excessive.
Appellant is procedurally barred from raising the first argument. Appellant made no directed-verdict motion to dismiss appellees’ claim for punitive damages, nor did it object to the jury being instructed on punitive damages. The first objection appeared in appellant’s posttrial motion. In Willis v. Elledge, 242 Ark. 305, 308-09, 413 S.W.2d 636, 638 (1967), our supreme court stated:
Appellant first argues that there was not enough evidence to submit the issue of punitive damages to the jury, but we cannot consider this question, since an instruction on punitive damages was given the jury without objection on the part of appellant. The failure to object to an instruction operates as a waiver of any error that might be committed in giving it.
The supreme court has also recently held that an appellant waives its right to question the sufficiency of the evidence to support a punitive-damage award if it does not make the proper directed-verdict motions. Advocat, Inc. v. Sauer, 353 Ark. 29, 49, 111 S.W.3d 346, 357 (2003):
Appellants’ first argument that there was insufficient evidence to support the award of punitive damages in this case is not preserved for this court’s review. Arkansas Rule of Civil Procedure 50(e) requires that where “there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.”
Because the appellants failed to renew their motion for directed verdict following the conclusion of the Sauer Estate’s rebuttal, they waived any question pertaining to the sufficiency of the evidence to support the jury’s award of punitive damages.
In the case at bar, appellant made no directed-verdict motion regarding punitive damages. Further, appellant permitted the jury to be instructed on punitive damages without objection. Appellant’s failure to preserve the issue at one of these stages precludes appellant from now raising the issue on appeal.
However, the same does not hold true for appellant’s argument that the punitive-damage award was excessive, even though that argument was also made for the first time in a posttrial motion. Obviously, a party is unaware of the excessive nature of a verdict until that verdict is rendered. We therefore consider the merits of this argument.
Ordinarily, we follow a two-step analysis in determining whether a punitive-damage award is excessive. First, we determine whether the award is excessive under state law. That entails an analysis of whether the jury’s verdict is so great as to shock the conscience of the court. See Advocat, supra. It also entails a consideration of the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003). Second, we consider the award in light of the federal due process analysis in BMW of North America v. Core, 517 U.S. 559 (1996). This involves an analysis of the degree of the defendant’s reprehensibility or culpability; the relationship between the penalty and the harm; and the sanctions imposed in other cases for comparable misconduct. Hudson v. Cook, supra. The United States Supreme Court recently elaborated on the factors to be considered when assessing the degree of a defendant’s reprehensibility: whether the harm caused was physical as opposed to economic; whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; whether the target of the conduct had financial vulnerability; whether the conduct involved repeated actions or was an isolated incident; and whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408 (2003). The Court in that case also recognized that, in practice, few awards exceeding a single-digit ratio between compensatory and punitive damages will satisfy due process.
The Campbell case was handed down by the Supreme Court on April 7, 2003, while this appeal was pending. Thus, the trial court did not have the opportunity to consider it. It is apparent that the punitive-damage award in this case, which bears a 28.5-to-l ratio to the compensatory award, should be reexamined in light of Campbell. While we recognize that we have the authority to conduct a de novo review of the punitive award, see Advocat, supra, we believe the better approach in this case is to remand the case to the trial court to reevaluate the award in light of the factors considered in the Supreme Court’s recent holding in Campbell. We therefore remand for that purpose.
Breach of Contract
The LLC’s breach-of-contract claim was based on the letter that Mackey received from appellant on May 18. The letter reads:
Thank you for allowing Superior Federal Bank to participate in your medical building project at Western and College in Conway, AR. We have approved an interim loan in the amount of $272,000 for the land acquisition for this project. This will serve as a conditional commitment for approval of a $1,800,000 construction financing. Before final construction financing can be approved, the following items are needed:
— Loan value not to exceed 80% of the lower of cost or appraisal
—• 3-year projections accompanied by signed lease commitments of 60%- 75%
—Tax returns on each principal of Jones & Mackey Construction Company, LLC
Appellant argues that the May 18 letter was not an enforceable contract because the parties did not agree on all essential terms. Therefore, appellant contends, the trial court should have granted a directed verdict on the breach-of-contract claim. We agree.
It is well settled that where all essential terms of a contract are not agreed upon, the contract is unenforceable. Troutman Oil Co. v. Lone, 75 Ark. App. 346, 57 S.W.3d 240 (2001); Hunt v. McIlroy Bank & Trust Co., 2 Ark. App. 87, 616 S.W.2d 759 (1981). The Hunt case involved a situation that is somewhat similar to the case at bar. There, the Hunts alleged that Mcllroy had orally promised to loan them an unspecified amount of money between $500,000 and $750,000. The alleged oral agreement contained no interest rate or repayment terms. The trial court held that no contract was created, and the supreme court agreed:
After a study of the evidence presented at trial, we have no hesitancy in agreeing with the chancellor that the appellants failed to prove a contract existed between themselves and the appellee. Ap-pellee’s officer, Larkin, and appellant Ben Hunt initially discussed the financing of the expansion of the S.B.H. Farm operation, but the total amount of loan proceeds was never decided. Hunt said that at one time Larkin told him he could have up to $750,000. Larkin testified that the appellee was willing to loan in excess of $500,000, and it could have been $700,000. Both Larkin and Hunt agreed that no interest rate or repayment terms were ever agreed upon. There apparently was some discussion that long term permanent financing would be necessary, but the terms of such financing were left to future determination. Meanwhile, short term notes were signed by appellants for loan proceeds so the farm expansion could commence. Although Larkin and Hunt may have generally agreed on a course of action as to the need for financing the farm project, they never agreed on the essential, much less all of, the terms of a contract to loan monies. There is no way that a court could take the general terms discussed between Larkin and Hunt regarding an open-ended loan with no repayment provisions and be asked to enforce an agreement without filling in necessary terms essential to the formation of a contract. The subject matter of the proposed agreement was indefinite and the mutual assent and obligations were so vague as to be unenforceable.
Id. at 90, 616 S.W.2d at 761. Likewise, in the case at bar, a court could not enforce such an agreement without adding certain essential terms. Although the May 18 letter contains the amount of the loan, it does not contain a repayment schedule, a term of the loan, or an interest rate. These are essential terms of a loan commitment letter. Black’s Law Dictionary defines a loan commitment as a:
Commitment to borrower by lending institution that it will loan a specific amount at a certain rate on a particular piece of real estate. Such commitment is limited to a specified time period (e.g. four months), which is commonly based on the estimated time that it will take the borrower to construct or purchase the home contemplated by the loan.
Black’s Law Dictionary at 844 (5th ed. 1986).
Appellees argue that testimony was presented at trial by several persons familiar with construction lending practices, and all of them testified that the May 18 letter was a “commitment letter” upon which a borrower could rely to begin his project. While such testimony may be relevant to the LLC’s promissory-estoppel claim, discussed infra, it does not alter the fact that the letter does not contain the essential terms to establish a formal contract. Appellees also argue that there was evidence from which the term of the loan and the interest rate could be established by custom or usage. For example, there was testimony that the term of a construction loan would typically be the period of construction, which could vary, and that a standard range of short-term interest rates were available on construction loans. However, there was no evidence that a specific term or rate of interest was customary, nor was there any evidence that the parties reached an agreement as to any rates or loan terms. There was also evidence that Mackey had prepared amortization schedules using specific interest rates and terms. However, these schedules were prepared during the negotiating process. There is nothing to show that, following negotiations, the parties ultimately agreed to any particular term or interest rate. In any event, the two amortization schedules referenced by appellees show different loan amounts, different interest rates, and different repayment schedules.
Given the absence of essential terms, we hold that the May 18 letter does not constitute an enforceable contract. We also agree with appellant’s argument that the May 18 letter lacks the mutuality required of a contract because it imposed no obligation on the LLC:
A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. ... “Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.
Showmethemoney Check Cashers v. Williams, 342 Ark. 112, 120, 27 S.W.3d 361, 366 (2000) (quoting Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1962)). In the case at bar, the LLC could have walked away from appellant and obtained financing at another institution, and appellant would have had no right to enforce any obligation. Thus, there was no mutuality of obligation. See also Armstrong Business Servs. v. AmSouth Bank, 817 So.2d 665 (Ala. 2001) (holding that where there was no showing that the prospective borrower gave or did anything for the benefit of the prospective lender, there was no consideration for the loan commitment).
For the reasons stated, we reverse the jury’s breach-of-contract verdict of $411,000.
Juror Questioning of Witnesses
Throughout the trial, the judge invited jurors to ask questions of the witnesses and the jurors did so on numerous occasions. The procedure was that the jurors would submit written questions to the judge, who would preview the questions and pose them to the witnesses. Appellant contends on appeal that such questioning by jurors should be prohibited because it removes the jury from its position as fact-finder and improperly places it in an adversarial role. See, e.g., Wharton v. State, 734 So.2d 985 (Miss. 1998); State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991); Morrison v. State, 845 S.W.2d 882 (Tex. Ct. App. 1992).
We first address appellees’ contention that appellant has waived this argument by failing to object. We disagree. From the first time that a juror actually proposed a question, appellant objected and continued to object to the practice throughout the trial.
As for the merits, we note that the supreme court has approved the practice of juror questioning. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974); Ration v. Busby, 230 Ark. 667, 326 S.W.2d 889 (1959). Appellant urges this court to join those jurisdictions that ban juror questioning. However, we are without authority to overrule decisions made by the supreme court. Dean v. Colonia Underwriters Ins. Co., 52 Ark. App. 91, 915 S.W.2d 728 (1996). Therefore, we affirm on this issue.
Instructing the Jury on Spoliation of Evidence
Appellant’s final argument is that the trial court erred in instructing the jury on spoliation of evidence. The jury was instructed as follows:
If you find that a party intentionally destroyed, lost or suppressed documents in this case with the knowledge that their contents may be material to a pending claim, you may draw the inference that the content of the documents would be unfavorable to that party’s defense. When I use the term “material” I mean evidence that could be a substantial factor in evaluating the merit of the claim in this case.
Spoliation is the intentional destruction of evidence; when it is established, the fact-finder may draw an inference that the evidence destroyed was unfavorable to the party responsible for its spoliation. Tomlin v. Wal-Mart Stores, Inc., 81 Ark. App. 198, 100 S.W.3d 57 (2003). An aggrieved party can request that a jury be instructed to draw a negative inference against the spoliator. Id.
A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Id. We believe there is sufficient evidence in this case to support the giving of an instruction on spoliation. During the course of trial, appellees questioned appellant about the whereabouts of the 1999 approved contractors list, personnel evaluations of Tom Wetzel, and loan committee minutes that would have referenced the initial land-acquisition loan. Although there was testimony that these items should have existed, none could be found and no credible explanation was given for their absence. We therefore hold that the trial court did not err in giving this instruction.
Cross-Appeal: Postjudgment Interest
The trial court imposed postjudgment interest at a rate of 6.25% on the noncontract damages. Appellees argue that, under Ark. Code Ann. § 16-65-114(a) (1987), a court must impose a 10% rate for postjudgment interest. That statute reads:
Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, Section 13, as amended.
The clear language of this statute is that, in the case of damages that are not awarded on a contract judgment, the court may award postjudgment interest of 10%, but not if 10% exceeds the maximum rate permitted by the Arkansas Constitution. The recent supreme court case of Bank of America v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003), clearly indicates that postjudgment interest in excess of the rate permitted by the Arkansas Constitution is prohibited. There is no evidence in the record before us as to what interest rate the constitution would have permitted on the date that judgment was entered. However, it is not necessary that we have that information because appellees argue only that the trial court was required to award 10% interest. Based on the language of the statute and the recent supreme court holding, we reject that argument because 10% postjudgment interest is not awardable if it exceeds the amount allowed by the constitution.
Promissory Estoppel
The trial judge set aside the jury’s $210,000 promissory-estoppel verdict because he determined it was incompatible with the jury’s finding that a breach of contract had occurred. It is correct that promissory estoppel is a basis for recovery when formal contractual elements do not exist. MDH Builders v. Nabholz, 70 Ark. App. 284, 17 S.W.3d 97 (2000). However, our reversal of the breach-of-contract award renders that rationale moot and thus permits reinstatement of the promissory-estoppel verdict.
Appellant argues that, even if the promissoryestoppel verdict is reinstated, there was not sufficient evidence to support it. We disagree. According to Kearney v. Shelter Insurance Co., 71 Ark. App. 302, 307-08, 29 S.W.3d 747, 750 (2000), the black-letter law on promissory estoppel is found in the Restatement (Second) of Contracts, § 90:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
Whether there has been actual reliance and whether it was reasonable is a question for the trier of fact. Kearney, supra.
In the case at bar, Mackey testified that appellant orally promised to finance the construction of the medical-office building and, as a result, he incurred over $500,000 in expenses. The loan memorandum for the land purchase indicates that appellant expected to obtain repayment from lease proceeds of the medical-office building, which could indicate that appellant contemplated providing financing through the construction phase. There was also evidence that appellant may have seen a sign in front of. the building site which read that it was providing financing for the project, yet it did not remove or object to the sign. Finally, there was testimony from numerous witnesses that it was reasonable for a borrower to rely on a commitment letter such as the May 18 letter to incur expenses and begin preparation for construction. In light of this evidence, we uphold the jury’s $210,000 verdict for promissory estoppel.
Appellees’ Motions
Pending before us are appellees’ motion to strike appellant’s reply brief and motion for sanctions and costs in connection with alleged deficiencies in appellant’s abstract and addendum. We deny the motions, except that we award appellees $500 for supplementation of the addendum, pursuant to Ark. R. Sup. Ct. 4-2(b)(l) (2003).
Affirmed in part, reversed in part, and remanded in part on direct appeal; affirmed in part and reversed in part on cross-appeal.
Stroud, C.J., and Vaught, J., agree.
The jury found in favor of appellant on the intentional interference count and awarded no damages to George Mackey personally.Those findings are not at issue on appeal.
We note, as a matter of interest, that the Uniform Commercial Code provides that a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft. See Ark. Code Ann. § 4-4~402(a) (Repl. 2001).
But see Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986), which recognized that a corporation is not defamed by communications defamatory of its officers, agents, or stockholders unless the communications also reflect discredit upon the method by which the corporation conducts its business. The court also recognized that libel of an individual can cause injury to a corporation if they are so interconnected that a reasonable person would perceive harm to one as harm to another.
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Judith Rogers, Judge.
The appellant, Heritage Bay Horizontal Property Regime, hereinafter “Heritage Bay,” appeals the trial court’s decision awarding summary judgment in favor of appellees, Kent and Paula V. Jenkins. On appeal, Heritage Bay contends that the trial court erred in granting appellees’ motion for summary judgment because the facts upon which that motion was predicated did not entitle appellees to judgment as a matter of law. We find that there is a remaining factual issue to be resolved, and reverse.
On May 12, 1987, the appellees purchased a condominium unit in Heritage Bay, which is located in Benton County, Arkansas. Heritage Bay’s by-laws and master deed were duly filed of record with the Circuit Clerk of Benton County in accordance with the Horizontal Property Act, found in Ark. Code Ann. §§ 18-13-101 to -120 (1987). Pursuant to its by-laws, Heritage Bay is governed by a board of administration. At the time of appellees’ purchase, the board of administration had enacted certain rules and regulations. Article III, § 3 of these rules and regulations provides:
No commercial activities of any kind whatever shall be conducted in any building or on any portion of the Properties except activities intended primarily to serve residents in the Properties.
Upon assuming occupancy, appellee Kent Jenkins, a manufacturer’s representative doing business under the name of Kent Jenkins Sales, Inc., began using his condominium as an office. A complaint was lodged with the board of administration by another owner who objected to appellees’ conducting commercial activities out of their condominium. Thereinafter appellees became the subject of various board meetings, where it was determined that this use of their property was in violation of the above-mentioned regulation.
Appellees filed suit against Heritage Bay and others in the Chancery Court of Benton County, seeking among other things a declaratory judgment that the regulation was inapplicable as to them, and disputing the enforceability of the regulation prohibiting this use of the property. The case was submitted to the chancellor on cross motions for summary judgment. In requesting the chancellor to make a ruling as to which party was entitled to judgment as a matter of law, based on the conflicting theories advanced by each, the parties agreed that there were no factual issues in dispute. In granting appellees’ motion for summary judgment, the chancellor, in reliance upon Ark. Code Ann. §18-12-103 (1987), found that the regulation in issue, as a restrictive covenant, was unenforceable against appellees because it had not been filed of record.
Heritage Bay filed a motion for a new trial. In its motion and accompanying brief, it was argued that appellees were not entitled to judgment as a matter of law because appellee Kent Jenkins had admitted to having advance notice of the regulation. Authority for this proposition is found in Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981). See also Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). The chancellor denied the motion for a new trial. It is from the conclusion of law reached by the chancellor in granting summary judgment and the denial of the motion for a new trial that Heritage Bay brings this appeal.
Summary judgment is an extreme remedy, and is only proper whenever the pleadings and proof show that no genuine issue exists as to a material fact and that the moving party is entitled to judgment as a matter of law. Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981). In considering a motion for summary judgment, a judge may consider pleadings, depositions, answers to interrogatories and admissions of fact, together with affidavits, if any, to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to summary judgment. Hallmark Cards, Inc. v. Peevy, 293 Ark. 594, 739 S.W.2d 691 (1987). Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). The object of summary judgment proceedings is not to try the issues, but to determine if there are issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id.
Upon review, the question to be answered is whether the trial court was correct in concluding that there remained no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, based on the pleadings, discovery documents, admissions of fact and affidavits, if any, showing what the proof will be. Selby v. Burgess, 289 Ark. 491, 712 S.W. 2d 898 (1986).
On appeal, Heritage Bay contends that the lack of recordation is not determinative of the enforceability of the regulation. Heritage Bay argues that appellee Kent Jenkins’ admission as to having had notice of the regulation vitiates the lack of recordation, and thus the failure to record is not an absolute bar to enforceability. We agree with Heritage Bay’s contention to the extent that it raises a genuine issue of fact that remains unresolved.
Heritage Bay propounded to appellees certain Requests for Admission of Fact. Request Number Eight reads:
Admit or deny that you had knowledge, prior to your purchase of the above described unit within the Horizontal Property Regime, of the rules and regulations concerning the use and personal conduct of the co-owners of the Heritage Bay Horizontal Property Regime prior to the time you purchased the above described unit.
Appellee replied:
It is admitted that the Plaintiff had information about the rules and regulations; it is denied that the information available to plaintiff was such that he could not do on his property the actions that he is now doing.
In view of this admission made by appellee, we conclude that a material factual issue existed, which made the granting of judgment as a matter of law to appellee improper. In addition, the issue of appellees’ notice is consonant with the allegations of misrepresentation stated in appellees’ complaint. In reversing the decision of the chancellor, we hold only that summary judgment was improper in that there remains a genuine issue of material fact yet to be determined. In so holding we express no opinion on the merits of this case or on any ancillary questions that may arise when this matter goes to trial.
We are cognizant of the posture of the case as it was presented, in that it was submitted to the chancellor for decision based on cross motions for summary judgment where it was agreed that there were no factual issues in dispute. However, we find no inconsistency in Heritage Bay now asserting a factual question after it had received an adverse decision. The chancellor was obviously well briefed on the facts and law of this case, but was mistaken as to the rule that one can take an inconsistent factual position after submitting the case for summary judgment. The fact that both parties move for summary judgment does not establish that there is no issue of fact, for a party may concede there is no issue if his legal theory is accepted, and yet subsequently maintain there is a genuine dispute as to material facts if his opponent’s theory is adopted. Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970). See also Dickson v. Renfro, 263 Ark. 718, 569 S.W.2d 66 (1978); Hood v. Welch, 249 Ark. 1159, 463 S.W.2d 362 (1971).
REVERSED and REMANDED.
Corbin, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Chief Judge.
This case involves an employment contract. The appellant filed suit seeking payment for two weeks vacation time. The trial court found against him. We reverse.
The case was submitted upon a written stipulation of fact with a copy of the employment agreement attached thereto. No other evidence was presented. The stipulation states that the appellant was originally hired under a written contract for six months; that he worked the full six-month period and his contract was not renewed; that the parties then entered into an oral contract of employment terminable at the will of either party; that approximately one month later the appellant’s employment was terminated; and that appellant then demanded payment for the two weeks vacation time. Two portions of the stipulation state:
2. That the parties to the contract understood that Michael Waymack would receive compensation in the amount set forth in paragraph 3(a) for any vacation taken while he was an employee of KCLA, Inc. for the period allowed under the contract as set forth in paragraph 9.
9. Vacation The employee shall be entitled to four (4) weeks of vacation time during each employment year in which this contract remains in force which shall accrue at the rate of two weeks for each six months of such employment. Employee’s vacation time, except with the express permission of management of the Employer to the contrary, will be taken in increments not in excess of one week.
To sustain the trial court’s decision, the appellee cites us to 53 Am. Jur. 2d Master and Servant § 80 (1970), which states: "The rights to vacation pay or to pay in lieu of vacation time not taken depend upon the express or implied terms of the employment contract.” Cited in that section is the case of Oil Fields Corporations. Hess, 186 Ark. 241, 248, 53 S.W.2d 444 (1932), which states:
Where an employee is given a vacation with pay, or a leave of absence is granted, or where the employee’s absence is involuntary as where the employer fails to furnish work, the employee is entitled to his wages for the time off. (Citation omitted.)
In our case, the stipulation plainly states that the contract provides that the employee shall be entitled to vacation time which shall accrue at the rate of two weeks for each six months of employment and that the “parties to the contract understood” that the appellant would receive compensation for vacation time taken. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978), says: “It is well settled that whenever parties to a contract express their intention in clear and unambiguous language in a written instrument, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. ” We think the contract here clearly provides that at the end of six months employment the appellant will have accrued two weeks vacation. The fact that his contract was not renewed did not affect the vacation time he had earned. To hold that he lost the two weeks vacation because his contract expired the day he became eligible for the vacation is to create an illusory contract that the parties simply did not make.
The appellee relies upon the case of Lim v. Motor Supply, Ltd., 45 Hawaii 198, 364 P.2d 38 (1961). That case holds that a discharged employee, hired under a contract providing for an annual two-week vacation, was not entitled to be paid for vacation time accumulated over his whole period of employment of several years, and the court pointed out that “though plaintiff’s annual vacation of two weeks may have been a matter of right, when this right was not insisted upon each year and instead was tacked on to the current two weeks vacation time, it became as to the excess merely a privilege which might be and in fact was lost.” We think the case really supports the appellant’s claim. There is no claim here for vacation time not taken when it became due, and we certainly do not think the additional thirty-day period that appellant worked should cause him to lose the vacation earned during his six-month employment period.
Another case, found in the pocket supplement to 53 Am. Jur. 2d, supra, leads us to the same conclusion. In Olson v. Rock Island Bank, 33 Ill. App. 3d 914, 339 N.E.2d 39 (1975), the court said the bank seemed to contend that since an employee was not entitled to a vacation credit for 1973 until January 1, 1974, he could not claim the vacation because he was retired on January 1, 1974. That interpretation was rejected.
Reversed and remanded with directions to enter judgment in appellant’s favor for $750.00, which is one-half of his monthly compensation.
Cooper and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellants, Bob and Margaret Lindsey, sought to adopt Brandy Ketchum, a minor female child, pursuant to Ark. Stat. Ann. § 56-220 (c) (2) and (3) (Supp. 1983). The natural parents defaulted in responding to appellants’ petition for adoption; however, the natural mother, Julie Williams, a/k/a Julie Ketchum, appeared and testified in the adoption proceedings. The probate judge denied appellants’ petition for adoption. However, as the chancellor in the companion custody case, the trial court continued custody in appellants and denied the natural parents any visitation privileges with the minor child. We reverse and remand.
We review probate proceedings de novo on the record. It is well-settled that the decision of a probate j udge will not be disturbed unless clearly erroneous (clearly against the preponderance of the evidence), giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. A.R.Cr.P. Rule 52 (a); Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123(1981).
Appellants urge us to reverse on the basis that the decision is unsupported by the evidence. In their petition for adoption, appellants relied upon Ark. Stat. Ann. § 56-220 (c) (2) and (3) (Supp. 1983), which provide for the relinquishment of the rights of a parent and the termination of the parent and child relationship under certain circumstances as follows:
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court’s order issued in connection with an adoption proceeding under this Act [§§ 56-201 — 56-221] on any ground provided by other law for termination of the relationship, and in any event on the ground (2) that by reason of the misconduct, faults, or habits of the parent or the repeated and continuous neglect or refusal of the parent, the minor is without proper parental care and control, or subsistence, education, or other care or control necessary for his physical, mental, or emotional health or morals, or, by reason of physical or mental incapacity the parent is unable to provide necessary parental care for the minor, and the court finds that the conditions and causes of the behavior, neglect, or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or probably will suffer serious physical, mental, moral, or emotional harm, or (3) that in the case of a parent not having custody of a minor, his consent is being unreasonably withheld contrary to the best interest of the minor.
The natural relationship between parent and child is subject to absolute severance in an adoption proceeding. The courts are inclined to favor the maintaining of the natural relationship when the adoption is sought without the consent of a parent and against his or her protest. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). In Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973), a case construing a New Mexico statute similar to Ark. Stat. Ann. § 56-220, it was stated that actions for termination of parental rights require clear and convincing proof.
Our research of the law in Arkansas leads us to the conclusion that Ark. Stat. Ann. § 56-220 (c) (2) and (3) (Supp. 1983), have not been construed by our appellate courts to date with the exception of the Arkansas Supreme Court’s recent decision in Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 648 (1983). In Wineman, supra, one of the arguments on appeal was that the evidence did not support the probate judge’s finding that appellant unreasonably withheld his consent to the adoption contrary to the child’s best interest. In affirming the adoption below, the Court relied upon the extensive findings of fact supporting the decision of the trial court. Those findings included appellant’s employment history, his struggles with alcohol, his living arrangement at the time of the hearing and the fact that the child’s mother had already consented to the adoption.
Subsection (c) (3), the provision upon which we reverse, provides a procedure for terminating a parent-child relationship without the consent of the natural parent. It does not require a separate petition for termination of parental rights but allows the parental relationship to be terminated by a court order in connection with an adoption proceeding if the requisite grounds are satisfied.
Montana, New Mexico, North Dakota, Ohio and Oklahoma have also adopted the Uniform Adoption Act with some variations. Ark. Stat. Ann. § 56-221 (Supp. 1983), provides that:
This Act [§§ 56-201 — 56-221] shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
For instructive purposes, we turn to those jurisdictions who have statutes similar to ours for guidance. The North Dakota Supreme Court’s decision in Kottsick v. Carlson, 241 N.W.2d 842 (1976), provides some assistance in its application of N.D. Cent. Code § 14-15-19 (3) (c), a provision worded exactly the same as the one at issue in the case at bar. There, a divorced wife and her new husband instituted proceedings to adopt the minor children of the wife and her former husband without his consent. Custody of the children had been awarded to appellant/wife pursuant to a divorce decree with visiting rights to appellee and requiring him to pay child support. Upon trial, the court issued a judgment denying the petition of appellants. On appeal appellants contended the trial court erred in its application and interpretation of N.D. Cent. Code § 14-15-19(3)(c), and asked that the judgment be reversed or that the matter be returned to the trial court with directions to apply the correct interpretation and concepts of law. Following its recitation of the pertinent statutory provisions, the court noted that there was no claim or evidence that appellee had been guilty of any of the conduct described in subsection (a) or (b) of the statute, nor of any conduct which would constitute grounds for termination of his parental right. Appellants argued that (c) applied and that under the facts of the case the court could terminate appellee’s parental rights and permit the adoption of his sons. Appellants contended that appellee was a “parent not having custody of a minor” and that appellants merely had to show that appellee was unreasonably withholding consent to the adoption, contrary to the best interest of the children. Following a lengthy discussion of the legal meaning of the word “custody,” the court considered decisions from other jurisdictions that allow termination of the natural parents’ rights without their consent where it is found to be in the best interest of the child. One such jurisdiction was Maryland and its statute (Md. Code Ann. Art. 16 § 74, Repl. Vol. 1973), provides that the court may grant a petition for adoption without consent if it finds that such consent is being withheld contrary to the best interests of the child. The Kottsick court cited Logan v. Coup, 238 Md. 253, 208 A.2d 694, 696 (1965), wherein the Maryland court found no voluntary relinquishment or abandonment of the child and had to determine where the best interests of the child lay. The court quoted from an earlier Maryland case, Shetler v. Fink, 231 Md. 302, 190 A.2d 76 as follows:
While all the facts and circumstances in a case must be considered, the cases, which reached this Court on the merits of the question whether or not adoption should be granted, seem to indicate that willful abandonment, failure to contribute to support, neglect to see or visit, and unfitness of a natural parent, are some of the important factors to be considered in determining whether consent has been injustifiably [sic] withheld; and that station in life and financial and religious considerations are of secondary importance. On the other hand, the natural rights of a natural parent that have not been lost or forfeited by his or her acts or conduct must be carefully weighed and considered in deciding the question.
After reviewing the basis for the caselaw as it had been developed over the years, the Kottsick court stated as follows:
. . . [i]t appears that the grounds for termination of parental rights must rest upon the attitude, conduct, ability, and such other matters relating to the parent’s duties, responsibilities and care for the child which may be, and frequently are, collectively referred to as “fitness.” The relationship of parent and child consisting of a bundle of essential human rights necessary for the preservation of society must be carefully balanced and jealously guarded. There is a vast difference between the granting of “custody” in a divorce action and the “termination of parental rights.” The terms “custody” and “best interests of the child” have become terms of art which reflect and convey certain meanings in divorce proceedings. “The best interests of the child” in termination of parental rights, in connection with adoption, takes on another meaning which includes, among other things, the total relationship between the child and parent pertaining to and involving heterogeneous values, rights, duties and concepts. In sequence, the termination question should be resolved first, and the adoption thereafter. But this does not mean two separate proceedings. If followed in such sequence the two issues would remain more identifiable. In parental rights termination matters the “faults,” if any, of the parent are considered, which in no way can be considered “faults” of the child who is the innocent party or “victim of circumstances.”
Appellant petitioned for a rehearing for clarification as to what would be admissible on the rehearing on the matter of fitness to which the court responded: “Any evidence having probative value to a court of equity as to the present and prospective fitness of the parent is admissible.”
The testimony and evidence in the case at bar reveals that the natural mother/appellee had left school and home and started drinking at age fifteen, became pregnant while in a foster home and gave that child to her own mother to raise, became involved in both using and selling drugs, lived with a total of six men, one of whom was the child’s father, bore the child in question and finally married the father. The natural parents manufactured, bought, sold and used drugs continuously as money would allow and drank constantly. Brandy was subjected continuously to almost every abuse known: physical abuse and in having human feces rubbed in her face, being forced to stay in bed without exercise so continuously that she was in very poor physical condition, beaten on the head and face in lieu of conventional spankings, permitted to masturbate until her vaginal area was raw, and deprived of balanced meals. The mental abuse consisted of being dropped into bed to scare her, left in the house alone, and being referred to by obscene names. Emotional and moral abuse consisted of her father’s fondling her genitals and permitting other men to do so, of being exposed to her father in the nude, being exposed to adults engaging in sexual intercourse, voyeurism and masturbation, and in being exposed to the drunken conduct of her parents, including beating and physical violence, and being taken to entertainment totally unfit for a child.
. On July 13, 1980, appellee voluntarily placed her four-year-old child with appellants to enter a drug and alcohol rehabilitation program for a period of 28 days. Appellants obtained legal custody of Brandy on July 17, 1980. Appellee executed a waiver of notice and hearing and consent to the appointment. Appellee did not communicate with her child while in the rehabilitation program and made infrequent visits prior to appellants’ filing their petition for adoption on August 19, 1981. Thereafter, appellants refused one request for visitation with the child by appellee. At the time of trial, appellants had had continuous custody of Brandy for 26 months.
Appellant Margaret Lee Lindsey testified that when Brandy first came to their home, she would sit and rock herself into complete withdrawal. Appellant stated that Brandy’s eyes rolled back in her head and she would chant. Brandy did not react to voices and would sleep for exceptionally long periods of time. Appellant testified as to Brandy’s extreme violence with her dolls and the long periods of time between bowel movements and urination. Upon hearing from her older sister, father or mother, Brandy would resort to violence to her dolls. Appellant stated that initially Brandy’s emotional condition was such that she would not let her out of her sight for any reason. Appellant often slept in the same room with Brandy. Following any visitation with her mother, Brandy would revert to total withdrawal and begin to chant. This behavior would generally last for up to a week after the visits with her mother. Appellants began therapy with Brandy in February, 1981. Brandy met with her therapist, Jon Lundquist, on a once-a-week basis and later switched to once every other week for a total period of one year.
Jon Lundquist, a psychiatric social worker, testified that he counseled Brandy who was brought to him by appellants with two disturbing problems. The problems included compulsive masturbation and behavior resembling autistic regression. He testified that he completed his work with Brandy approximately six or eight months before trial. Lundquist stated that appellant Margaret Lindsey had very natural, positive mothering abilities and she followed his instructions well. Much of his information came from Mrs. Lindsey which Brandy corroborated on her own initiative. He recommended that visitation with the natural mother be stopped as he would see Brandy regressing to her autistic patterns and there would also be an increase in masturbation. Lundquist testified that Brandy regressed to a two-year-old, turning inward as a functional protection. Finally, he stated that since visits with Brandy’s natural mother had been terminated, there had been no periodic regressive behavior and that if she were permitted contact with appellee, it would send her back into the regressive behavior pattern. It was Lundquist’s opinion that appellants had been excellent parents to Brandy, that it would not be in Brandy’s best interest to be moved from the home they had provided and that it was not reasonable for appellee to continue to withhold her consent to the adoption.
Dr. Glenn Lowitz, a clinical psychologist employed by Arkansas Children’s Hospital, became involved in the case at the request of appellee’s attorney and was engaged to observe Brandy and appellee to determine if the inappropriate behavior surrounding Brandy’s contacts with her mother were true. He testified that he administered several tests and visited with both Brandy and her mother. Dr. Lowitz interviewed appellee and he testified that her response to his questions as to her immediate and future plans for Brandy focused on her difficult labor and delivery of Brandy and whether or not Brandy still remembered her. He explained that he did not get the kind of information he was looking for in terms of planning for herself, either with or without Brandy nor could he evaluate her responses as beneficial to future plans which might get appellee in a position where she could take the child. Dr. Lowitz stated that appellee’s four attempts at rehabilitation which had failed suggested that her risks of reverting to alcohol in the future were enhanced. He concluded by testifying that he did not think it would be in Brandy’s best interests to start to build a relationship with appellee and that it was in Brandy’s best interests to have the issue of the direction of her life settled promptly.
Christene Swartz, the maternal grandmother, testified as to appellee’s emotional and drug problems. She felt that Brandy had a wonderful home with appellants and that it was best for Brandy to have the adoption go through.
Appellee admitted at trial that she was an alcoholic and a “pillhead.” She stated that she had not had a drink in six months and 28 days. Her sole means of support consisted of social security disability income amounting to 1274.30 per month and that the housing authority paid half of her rent. Appellee objected to the adoption but did not ask the court to place Brandy with her at that time as she did not have the financial capability to support her. We find the following testimony pertinent:
Q. You don’t feel you are in a position to take the child into your home at this time?
A. Financially I’m broke. But I am happy. Happy broke.
Q. Why do you say you are happy broke?
A. Well the feelings you get inside. You know. Having cigarettes, having food, you know. That is all that is important to me. Having clean clothes, you know, right now.
The trial court heard testimony from people well-acquainted with appellants and who had been in their home. Each testified as to the Lindsey’s strong marriage, the fact that they had successfully raised two daughters to maturity, and their love for Brandy.
From a de novo review of the record before us, we find that appellants established by clear and convincing evidence that appellee unreasonably withheld her consent to the adoption contrary to Brandy’s best interest. The evidence was overwhelming in this regard and there was absolutely no testimony to support any other conclusion. Each of the expert witnesses stated that it was contrary to Brandy’s best interest to not have the issue settled and that it was emotionally devastating for Brandy to be in her mother’s presence for any period of time. Furthermore, the issue of appellee’s fitness, ability and desire to maintain a parental relationship with Brandy was fully developed at trial. While the primary consideration in the case at bar is the welfare of the child, this does not mean that courts can sever the parental rights of nonconsenting parents and order adoption merely because the adoptive parents might be able to provide a better home. Here, however, appellants made a proper showing of appellee’s neglect and unfitness as a parent amounting to an unreasonable withholding of appellee’s consent to the adoption. Brandy, through appellants’ love, support and devotion, has been able to overcome the horrors she was forced to live with for the first four years of her life and it is in her best interest that the petition for adoption be granted. We hold that the probate judge’s decision in denying appellants’ petition for adoption is clearly erroneous.
Accordingly, we reverse and remand. The trial court is to enter a decree allowing the adoption of Brandy by appellants.
Reversed and remanded.
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James R. Cooper, Judge.
In this criminal case, a jury convicted the appellant of burglary and sentenced him to 5 years in the Arkansas Department of Correction. From that conviction, comes this appeal.
On appeal, the appellant argues that he was denied his right to counsel, a right guaranteed him under the Sixth Amendment to the United States Constitution. The appellant was charged by information with committing a bur glary on September 5, 1981. He was arraigned on October 6, 1981, before the Honorable Randall Williams, Circuit Judge for the Eleventh Judicial Circuit. At his arraignment, the appellant was advised of his right to have an attorney represent him and of his right to have court appointed counsel should he not be able to afford one. Judge Williams noted on the court’s docket sheet that the case was “passed to November 3,1981 at 9:30 to get an attorney.” The record also reflects that the defendant appeared before Judge Williams on October 6, 1981 and stated that he would get an attorney. Also, the appellant posted a bond at that time and remained at liberty until his trial.
On February 14,1982, the day before trial, the appellant appeared before the Honorable Russell Rogers, Circuit Judge for the newly created Eleventh Judicial Circuit-East, and requested that the charges against him be dropped on the ground that he was denied a speedy trial. Judge Rogers found the appellant was being tried within the third term of the court since his being charged, and therefore he was not denied a speedy trial.
Next, the appellant requested the court appoint an attorney to represent him as he was an indigent. Apparently no record was made of the appellant’s conversation with the trial judge. On the morning of trial, the trial judge dictated into the record a summary of the previous day’s proceedings. Essentially, the trial court made four findings: First, that the appellant had not filed a written request asking that an attorney be appointed for him; second, that, based on the record, the trial court assumed that the appellant had earlier been found not to be an indigent; third, that the appellant was a relatively educated and intelligent 30 year old male who understood the consequences of not having an attorney and who possessed a skilled trade; and fourth, that the appellant had knowingly waived his right to an attorney either by his actions or inactions.
The main thrust of the appellant’s argument on appeal is that he was not required to file a written petition seeking counsel and that his oral request for an attorney was sufficient. The appellant’s counsel does not mention Rule 18 of the Chancery and Circuit Court Rules, Ark. Stat. Ann. Vol. BA, which clearly requires a written petition asserting indigency and a supporting affidavit. The appellant has not filed such a. petition and affidavit, and therefore we affirm the trial court’s refusal to appoint counsel. To this day, there is not a scintilla of evidence in the record which supports the appellant’s claim (at the trial court level) that he was indigent. Further, on appeal, the appellant does not assert that he was an indigent and therefore entitled to appointed counsel at his trial. Finally, we note that, within 30 days following his conviction, the appellant obtained counsel to perfect this appeal. By a motion for a new trial, accompanied by an affidavit of indigency and the required affidavit, the trial court could have been afforded the opportunity to correct the situation (which we do not concede constituted error) caused by the appellant’s belated claim of indigency.
The appellant correctly states that the right to counsel is guaranteed by the Sixth Amendment to the United States Constitution. We do not believe that Rule 18 of the Chancery and Circuit Court Rules conflicts with the Sixth Amendment, and the appellant’s counsel does not argue that it does.
Affirmed.
Mayfield, C.J., and Glaze, J., concur. | [
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James R. Cooper, Judge.
This is an eminent domain case. The appellees, Mr. and Mrs. Keith Burton, were awarded $3,500.00 as just compensation for a right-of-way easement taken from them by the appellant for a gas pipeline. The appellant brings this appeal claiming that there was not sufficient competent evidence before the jury to support its verdict of $3,500.00, that the trial judge erred in not striking the testimony of Keith Burton concerning the after value of his remaining lands and finally that the trial judge erred in permitting the jury to hear and consider testimony from Keith Burton concerning damage to his well. We reverse and remand for a new trial.
Arkansas Oklahoma Gas Corporation took .53 of an acre of the appellees’ lands for a gas pipeline from the appellees’ 19.21 acre farm. At trial, only Keith Burton testified for the appellees/landowners as to the value of the land being taken. Mr. Burton stated that the before value of his land was $61,500.00 based on the price he purchased it for approximately a month before the pipeline was constructed. Mr. Burton then stated that the after value of the property was $54,000.00, for a difference of $7,500.00 damages resulting from the taking. As a basis for his testimony, Mr. Burton stated he had viewed 35-40 pieces of property prior to purchasing the farm he now owned. He also stated he and his wife had bought and sold ten to twelve houses and had experience in real estate purchases in California and Iowa. He also testified that he had been involved in an eminent domain case on a farm he owned in Iowa. This testimony is perhaps as confusing to us as it was to the trial judge, who commented that maybe Mr. Burton should not have tried to qualify himself as an expert and should have testified simply as an owner. In any event, Mr. Burton went on to state, on cross-examination, that he believed that the property was worth $1,500.00 per acre, that he did not have an identifiable method which he used for estimating the after value he had testified to, but that he just felt $7,500.00 was just compensation for “the land, the road, the trees, the shrubs, and everything that was damaged. My estimate, that is what I feel the damage is.”
The appellant produced one expert witness on damages, John Libby. Mr. Libby testified that he considered comparable sales in the area and was of the opinion that the land taken had a value of approximately $1,000.00 per acre. Mr. Libby went on to state that in his opinion, just compensation for the .55 of an acre taken plus the additional .18 of an acre temporary construction easement was $1,000.00.
The law is well settled in Arkansas that a landowner may testify to the value of his property because of his status as an owner, and the weight of the landowner’s testimony is affected by his knowledge of values. Southwestern Bell Tel. Co. v. Fulmer, 269 Ark. 727, 600 S.W.2d 450 (Ark. App. 1980); Arkansas Highway Commission v. Darr, 246 Ark. 204, 437 S.W.2d 463 (1969). While we have no trouble with Mr. Burton’s basis for his estimate as to the value of the tract before the taking, his testimony as to the value after the taking appears to us to have had no real basis. Perhaps the most revealing comment by Mr. Burton was his statement in response to the question by counsel for the appellant, who was persistently attempting to determine the basis for Mr. Burton’s $7,500.00 figure;
Counsel: All right, so you added all of them up [trees, shrubbery, the roads, the land, the well] and you came up with a figure of $7,500.00, is that right?
Mr. Burton: First, we put down I thought it was about $12,000.00, but then we reconsidered and talked to my attorneys, not being an expert on trees and stuff like that. I thought $7,500.00.
It is quite apparent that Mr. Burton’s after value figure was totally arbitrary and without factual basis and should have been stricken. It becomes obvious that after stating that the price per acre of his land was $1,500.00, admitting that the taking was less than 1 acre, and then attempting to fix a value on this taking at $7,500.00, that the witness was merely speculating upon the after value of the entire tract.
The appellees were entitled to recover the full fair market value of the land taken for the easement, plus the damage, if any, to the remainder of the tract, Arkla Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968), rather than the difference in value of the entire tract before and after the taking.
The appellee also argues that the trial court should have stricken the testimony of Mr. Burton concerning damages to his well caused by the placement of the pipeline. Mr. Burton testified that the ditch was approximately 18 feet from his well, and that shortly after it was dug, his water became muddy, his water system lost pressure, and he had to clean müd out of his water tank in order to get the water pressure back. Counsel for the appellant obj ected to this testimony on the grounds that Mr. Burton did not establish a connection between the laying of the pipeline and the well becoming muddy as required by the Arkansas Supreme Court in Continental Geophysical Co. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967). In Continental, the appellant drilled ten holes to a depth of 100 feet and set dynamite charges in them for the purpose of seismic exploration. The appellees owned water wells ranging from 1,600 feet to 6,300 feet from the appellant’s test holes. The appellees claimed the blasting caused their wells to go dry. There was also a severe drouth in progress at the time of the blasting. The Court found that the proof was insufficient to show a causal relationship between the detonation of the test holes and the failure of appellees’ wells. The Court remanded the case, finding that there was no affirmative showing that the blasting could not have caused the wells in question to go dry. We feel that this case is similar. Although Mr. Burton’s testimony is insufficient to establish the required nexus between the appellant’s activities and the problems he stated he experienced with the well, neither did the appellant show that it could not have been the cause of the problems. Therefore on remand, we believe that the appellees should have the opportunity to demonstrate through competent evidence that the appellant’s digging caused their well to become muddy and lose its pressure.
Reversed and remanded.
Mayfield, C.J., and Cracraft, J., agree. | [
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Karen R. Baker, Judge.
Appellant, John Geer, was convicted of the following in Pulaski County Circuit Court: 1) commercial burglary, a Class C felony, as defined in Ark. Code Ann. § 5-39-201 (b)(1) (Repl. 1997); 2) breaking or entering, a Class D felony, as defined in Ark. Code Ann. § 5-39-202(a) (Repl. 1997); 3) theft of property with a value of $500 or less, a Class A misdemeanor, as defined in Ark. Code Ann. § 5-36-103(a)(l)(b)(4)(A) (Repl. 1997); and 4) possessing instruments of crime, Class A misdemeanor, as defined in Ark. Code Ann. § 5-73-102(a) (Repl. 1997). At the conclusion of a bench trial, appellant was sentenced to three years’ imprisonment in the Arkansas Department of Correction for each of the two felony convictions. The sentences were to run concurrently. Appellant argues on appeal that the circuit court erred in denying appellant’s motion to dismiss the felony charges of commercial burglary and breaking or entering because the State failed to introduce substantial evidence of appellant’s guilt as to these offenses. We affirm.
At trial, the State presented the testimony of Officer White and Officer Marsh showing that they were dispatched to a silent alarm activation at Chicot Elementary School. Both officers arrived at approximately the same time. Officer White testified that upon arrival, he checked the west side of the school grounds, and Officer Marsh checked the east side of the grounds. Officer White testified that almost immediately, he found appellant sitting on the ground in a shadowed area. As he approached appellant, he saw several objects, a coin box, a piece of metal, a pair of tin-snips, and a hacksaw blade, which was wrapped in a washcloth, on the ground beside appellant. Appellant was sitting Indian-style, and the coin box was between his legs. Officer White stated that appellant was apparently counting the change from the box.
Officer Marsh testified that before he went around to the east side of the building, he saw Officer White draw his weapon. He went over to assist Officer White. Following appellant’s apprehension, he continued around to the south side of the building where he found a door propped open with a brick. According to both Officer Marsh and Officer White, there was a door near the teachers’ lounge that had a hole drilled in it. Officer Marsh explained that a hole was driven through the window of the door so that something could be stuck through the hole and released. Officer White testified that a vending machine in the teachers’ lounge had been tampered with. It appeared that the lock on the machine had been popped and the metal around the lock bent back. Appellant was the only person found on the school premises when police arrived.
Appellant testified that on August 5, 1999, his father had given him a ride to the local Shell Station to buy some cigarettes. Appellant bought liquor instead, and his father forced him to walk home. While on his way home, he observed three black men coming toward him. To avoid confrontation, he took a different route, which led him toward the back of the school. Appellant testified that while on his new route home, he discovered a pair of tin-snips and a box of coins. At roughly the same time, he saw a black male running from around the side of the school, and the police arrived.
At the conclusion of the State’s case, defense counsel moved to dismiss the two felony charges of commercial burglary and breaking or entering. The motion was denied. After the defense presented its case-in-chief, defense counsel renewed the motion to dismiss the two felony charges. The court did not rule on the renewed motion to dismiss.
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). This court affirms if there is substantial evidence to support the verdict, and in making this determination we review the evidence in the light most favorable to the appellee. Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992) (citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988)). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995). The fact that evidence is circumstantial does not render it insubstantial. Brown, supra, (citing Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992)). Where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Id. The question of whether it does exclude other reasonable hypotheses is usually for the fact finder to determine. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983).
A person commits commercial burglary if he enters or remains unlawfully in a commercial occupiable structure of another with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201 (b)(1) (Repl. 1997). A place where people assemble for the purpose of education falls within the definition of a commercial building under the statute. Ark. Code Ann. § 5-39-101 (2)(B) (Repl. 1997); Oliver v. State, 14 Ark. App. 240, 687 S.W.2d 850 (1985), rev’d on other grounds, 286 Ark. 198, 691 S.W.2d 842 (1985). A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any . . . coin-operated . . . vending machine. Ark. Code Ann. § 5-39-202(a) (Repl. 1997).
Minutes after the silent alarm was activated at the school, Officers White and Marsh found appellant sitting in a shadowed area just outside the school building. Between appellant’s legs was a vending machine coin box, and he appeared to be counting the change from the box. Next to appellant, was a small hacksaw blade, which appellant’s father testified belonged to appellant, and a pair of tin-snips. Clearly, the trial court could infer that these items could have been used to gain entry to the school. See, e.g., Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996) (finding substantial evidence of guilt where the defendant was found outside a just-burglarized business, and in possession of a cash box and tools used to gain entry). The officers then discovered an exterior door apparently forced open and another door near the teachers’ lounge with a hole drilled through the glass, along with a vending machine inside the lounge which had been tampered with. No one else was found on the premises. Any reasonable inference may be drawn from circumstantial evidence to the same extent as from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). Here, the fact finder could easily infer that appellant committed both commercial burglary and breaking or entering.
Although appellant offered his own explanation as to how he came to be in possession of the coin box and other items, the trial court, as the finder of fact, was not obligated to believe him, as he was the person most interested in the outcome of the case. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).
We hold that substantial evidence supports appellant’s convictions.
Affirmed.
Jennings, J., and Hays, S.J., agree.
Pursuant to Ark. Code Ann. § 5-4-403(c)(1) (Repl. 1997), the circuit court did not impose a sentence on the two misdemeanor convictions; any sentence imposed would be satisfied by his sentence of imprisonment for the two felonies.
Arkansas Rule of Criminal Procedure 33.1(c) states that, “[i]f for any reason a motion or a renewed motion at the close of all the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on die question of the sufficiency of the evidence.” | [
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James R. Cooper, Judge.
In this criminal case, the appellant, Michael J. Robinson, was charged with a class C felony, theft of property valued at over $100.00. It was alleged that the appellant stole four batteries from buses parked at the Little Rock School District’s Bus Yard. After a non-jury trial, the appellant was convicted of theft of property valued at more than $100.00 and he was sentenced to four years in the Department of Correction. From that decision, the appellant brings this appeal.
For reversal, the appellant contends that the trial court erred in finding sufficient evidence of value to support the appellant’s conviction.
On November 20, 1982, an alarm went off at the Little Rock School Bus Yard which indicated a break-in in progress through the fence surrounding the premises. The security guard contacted the Little Rock Police Department which responded by dispatching a patrol unit to the scene. When the patrol unit arrived, the police officer encountered the appellant placing a battery into the front seat of an automobile. Upon further investigation, the automobile was found to contain three other batteries. Four buses on the lot were missing batteries.
At the appellant’s trial, the security guard testified that the batteries were worth $60.00 each. He was not asked about the basis for his opinion. On cross-examination, he testified that he was not involved in the purchase of batteries for the buses. The matter of his qualifications was not pursued, no motion to strike his testimony was made, and no other witness testified as to the value of the batteries. The State rested its case, the appellant moved for a reduction to misdemeanor theft, and the trial court denied the motion for reduction, and found the appellant guilty of felony theft of property.
Under Ark. Stat. Ann. § 41-2203 (Repl. 1977), theft of property is a class C felony where the property is valued at more than $100.00 but less than $2,500.00. and it is a class A misdemeanor where the value of the property is under $100.00. The State has the burden of proving value. Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978). Value testimony must be based on facts in order to constitute substantial evidence, and testimony based on conclusions or hearsay is not substantial evidence. Hughes v. State, 3 Ark. App. 275, 625 S.W.2d 547 (1981).
The appellant argues that it was shown that the security guard had no basis for his opinion. We disagree. All that was established was that he had an opinion as to value, and that he had no responsibility for the purchase of batteries for the district. His testimony may have been based on conjecture, experience, expertise, or anything else for all we know, since no one ever asked him. What we do know is that the trial court had before him a witness who, under oath, opined as to the value of the property stolen. The trier of fact has the duty to determine the weight to be given the testimony of the witnesses, and he did so in this case. On appeal, we are required to affirm criminal cases where we find substantial evidence to support the verdict, after viewing the evidence in the light most favorable to the State. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). We cannot say that the evidence as to value was insubstantial, even though there are obviously superior methods of proving value. We choose not to speculate as to why the State chose to rely totally on the security guard to establish value, nor as to why the defense was so unconcerned about his qualifications to so testify. It is enough to say that the trier of fact had some evidence of value before him, and, on this record, we cannot say it was insubstantial.
Affirmed.
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Melvin Mayfield, Chief Judge.
The appellant, Sidney Freeman, appeals from the granting of appellees’ motion for summary judgment.
The appellees are George King and various corporations used by him to operate an industrial laundry business in the Fort Smith area. In 1967 Freeman was employed to manage this business under an agreement which provided for a salary and profit-sharing arrangement. In December of 1981, Freeman resigned because he believed he was not receiving the agreed share of profits, and in February of 1982, he filed this suit seeking an accounting and judgment for the profits he contends are due him.
Answers were filed for the appellees and after the depositions of Freeman and King had been taken the appellees filed a motion for summary judgment. The motion was submitted upon the pleadings and depositions, from which the court found “the following material facts to be undisputed.”
1. There was an oral employment contract.
2. An unsigned memorandum of some of the terms of the employment agreement was prepared.
3. The oral agreement was modified numerous times over the 14 years it was in effect.
4. Approximately ten years ago King stopped showing Freeman the books despite Freeman’s requests to see them.
5. For six to ten years Freeman suspected King was not paying his bonus in accordance with the agreement.
6. For the past six to ten years Freeman did not controvert King’s unilateral right to determine such bonus as King deemed reasonable without accounting to Freeman for the method by which such bonus was computed.
7. During the past decade King and Freeman agreed upon various increased benefits to Freeman’s advantage in addition to those provided in the August 21, 1967 document, including a substantially increased salary — the most recent salary increase, $1,200.00 per week or $62,400.00 per year, being four times the maximum provided in the agreement regardless of the amount of the profits.
Next, the court’s judgment states “there being no genuine issue as to the above material facts, the court finds that the defendants are entitled to judgment as a matter of law.” The court’s reasoning is then set out as follows:
Freeman with knowledge (constructive if not actual) that King was not strictly complying with the bonus formula, and while acquiescing in modifications of the original agreement substantially to his advantage, remained silent and failed to assert any right he might have had to an accounting based upon the August 21, 1967 document for a period of at least six and perhaps as many as ten years. The voluntary relinquishment of rights by Freeman (waiver), the detrimental reliance by King (estoppel), and the unreasonable delay in the enforcement of any right Freeman might have had to demand an accounting or to enforce the other rights claimed herein (laches) entitle the defendants, and all of them, to judgment as a matter of law.
Motions for summary judgment are governed by some well-established principles of law. In Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981), we said:
On such motions the moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Hendricks v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979); Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978). The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever the motion should be denied. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). A motion for summary judgment cannot be used to submit a disputed question of fact to a trial judge. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966).
The parties do not really disagree as to what the real issue is in this appeal. The appellant says regardless of whether the facts listed in the trial court’s judgment are disputed, reasonable minds could differ as to the inferences to be drawn from those facts and summary judgment was therefore inappropriate. On the other hand, the appellees say that reasonable minds could not differ and it would be a fruitless exercise to spend two or three days trying the case. It is our view that summary judgment should not have been granted and we reverse and remand the case for further proceedings.
The first ground upon which the court based its decision is waiver. That term was defined in the case of Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972), as follows:
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it.
Freeman’s testimony was that in the early years of their agreement he was shown financial statements and had no reason to question the amount of profits which he shared. Later, however, he suspected his share should have been more, but when he asked to see the information upon which it was calculated he was told the books were at the accountant’s and a financial statement was not available. He said he asked for this information several times through the years and received the same response. He testified that in 1979 he was told his share of the profits for 1978 was about $20,000.00 although during the summer of 1977 he had been told by King that within two years he would be making $100,000.00, and although he knew 1978 had been an extremely profitable year.
At about the same time King opened a quarter horse ranch in which he began to invest large sums of money. So, in August of 1979, when Freeman tried to find out what the profits were for 1978, and was again told that the books were at the accountant’s, he became convinced he was being cheated. He said he actually preparecl a resignation dated August 29, 1979, but did not turn it in and worked on until the end of 1981, at which time he did resign.
The appellees point to this evidence and say because for several years Freeman accepted the profit share as fixed by King even though he did not believe it was for the correct amount, and also accepted increases in both salary and expense allowances, it must be said that he waived any righj; to insist upon a strict compliance with the 1967 profit sharing arrangement. We do not agree.
First, we note that the trial court's finding No. 7, explicitly states that Freeman’s increased benefits were in addition to those provided in the 1967 agreement. Certainly his salary and other benefits could be increased without a waiver of his profit-sharing agreement, and apparently the court found this did occur. Also, the receipt of a portion of what is due does not necessarily mean that there is a waiver of the additional amount due. In most cases the question of waiver is one of fact, Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980), and we think it is a question of fact in this case — especially since the evidence in support of a motion for summary judgment must be viewed most favorably to the opposing party, and if there is any doubt, the motion must be denied. Walker v. Stephens, supra.
The trial court’s second ground for granting summary judgment is estoppel. Again, we do not believe that reasonable minds could find only one way. In Bethell v. Bethell, 268 Ark. 409, 424, 597 S.W.2d 576 (1980), the court stated the rule with respect to estoppel as follows:
A party who by his acts, declarations or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled.
It is not clear that Freeman induced or misled King to do something he would not have otherwise done. King argues that if Freeman had not silently accepted the increased salary and expense benefits but had said he was going to insist also upon strict compliance with the 1967 agreement, he could have been fired or, we suppose, the increases in salary and expenses could have been less or even not granted in any amount. The problem is, King did not testify to that effect and we have to engage in speculation to accept that scenario. And if we speculate, it might be that Freeman’s expressed intention would have changed nothing, or that his profit share would have been correctly determined from that date forward in keeping with the agreement. After all, King admitted that Freerrian was a good manager, that the volume of business went from $7,500.00 to $38,000.00 per week while he was there, and that King had used the 1967 agreement as a guideline only, and actually paid whatever “bonus” he thought should be paid. Appellees argue that Freeman said King would have fired him, but this is still speculation and when considered with all the evidence, is not enough for us to hold that reasonable men. could draw only one inference therefrom.
Additionally, Bethell says “the whole principle of equitable estoppel” is based upon a man’s deliberately doing an act or saying a thing, and another, who has a right to do so, relying upon that act or word. 268 Ark. at 424. Considering all the evidence in this case, not only is there a genuine issue of fact as to whether King relied upon Freeman’s conduct, but we see no way to hold that reasonable men must conclude that King had a right to rely upon Freeman’s acceptance of the increases in salary and expenses as meaning that he would not insist upon his share of the profits as provided for in the 1967 agreement.
Neither can we find estoppel as a matter of law in the fact that Freeman accepted the “bonus” paid him each year without voicing an objection as to its amount. In addition to the reasons already given, we think reasonable men could find that Freeman’s silent acceptance of the “bonus,” salary, and expenses did not induce King to change his position for the worse in such manner that it would operate as a ‘ ‘virtual fraud” upon King to allow Freeman to assert the right to recover in this case. See, Lee v. Doe, 274 Ark. 467, 472, 626 S.W.2d 353 (1981).
The third ground used as a basis for the trial court’s decision is laches, which the court found resulted from “the unreasonable delay in the enforcement of any right Freeman might have had to demand an accounting or to enforce the other rights claimed herein.”
It is quite apparent that what constitutes unreasonable delay would ordinarily involve questions of fact. The first question here is the date from which we start our measurement. The appellees contend that we should start from the date Freeman had constructive knowledge of the facts entitling him to bring suit, and they cite Schultz & Watkins v. Rector-Phillips-Morse, 261 Ark. 769, 552 S.W.2d 4 (1977), in support of that contention. They then argue that Freeman had this constructive knowledge around 1970-71, when King ceased letting him see the financial records, or around 1972 to 1974 which was when Freeman said he first suspected he was not being paid his proper share of the profits. Freeman contends, however, that we should start with the summer of 1979 when he was told that his share of the profits for 1978 was only about $20,000.00 and when he became convinced he was being cheated and when he actually prepared a resignation but did not turn it in.
We think these contentions show that whether there was an unreasonable delay presented a genuine issue of fact upon which reasonable minds could differ, and that summary judgment was not the proper procedure for its resolution.
Moreover, if the summer of 1979 is used, this suit was filed within the three-year statute of limitations applicable to oral contracts, Ark. Stat. Ann. § 87-206 (Repl. 1962). Therefore, this claim would not be barred unless there is evidence from which it could be found that three years is an unreasonable period of time. See, Moore v. City of Blytheville, 1 Ark. App. 35, 41, 612 S.W.2d 327 (1981). In that event, there is a question of fact; and if we start with some point prior to the summer of 1979, there is still a question of fact as to whether Freeman unreasonably delayed a direct confrontation and whether this caused King to change his position to his detriment so that it would be inequitable to allow Freeman to bring this suit. See, Padgett v. Bank of Eureka Springs, 279 Ark. 367, 372, 651 S.W.2d 460 (1983).
We have tried only to explain our rationale for holding that this case presented factual issues that should not have been decided on motion for summary judgment. While chancery appeals are before us for trial de novo, we do not make any factual determination in this case, but exercise our discretionary power to remand for further proceedings. See, Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).
Reversed and remanded.
Cooper and Glaze, JJ., agree. | [
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Terry Crabtree, Judge.
This appeal arises from an Arkansas Workers’ Compensation Commission’s opinion in which the Commission made the following findings: 1) that the claim of the appellee, Richard Angell, for additional worker’s compensation was not barred by Ark. Code Ann. § ll-9-702(b); 2) that the appellant, Cooper Tire & Rubber Company, willfully and intentionally failed to pay for medical treatment received by appel-lee, and thus appellant must pay a 36% penalty; and 3) that by failing to comply with the Administrative Law Judge’s October 29, 1997, order, appellant was in contempt, however the Commission suspended and held in abeyance a $10,000 fine, contingent on appellant’s compliance with the Commission’s past and prospective orders. Appellant appeals the decision of the Commission. We find no error and affirm.
This case arose out of an admitted compensable injury to appellee on June 8, 1992. Appellee testified that he was pulled within two rollers of a machine. Appellee reported injuries to his upper extremities, low back, and lower extremities. Appellant paid temporary total disability payments from the date of the injury through May 31, 1993, the date on which appellee’s healing period ended. Appellee was assigned a 23% impairment rating to his left lower extremity, which appellant accepted and paid. An issue arose as to whether complaints appellee made in 1995 and 1996 of problems with his right knee and low back were related to the June 8, 1992, injury. The Administrative Law Judge (“ALJ”), by opinion dated October 29, 1997, found that appellee had shown that his physical problems involving his right leg and back were direcdy and causally related to the compensable injury. The ALJ found Dr. William Bundrick as appellee’s primary medical provider. The ALJ found that appellant was responsible for continued reasonably necessary medical treatment and/or referrals provided by Dr. Bundrick. The ALJ found that appellee was not entitled to additional permanent impairment benefits beyond those previously paid, but that the nature and extent of appellee’s injury as well as further indemnity benefits required additional development of medical evidence, and was by necessity specifically reserved. The ALJ directed appellant to pay outstanding medical and related expenses consistent with his findings of fact. Neither party appealed this ruling.
The last medical treatment of appellee that appellant paid for was treatment provided by Dr. Bundrick on February 10, 1998. In October 1999, appellant filed for additional worker’s compensation benefits. In an opinion filed on May 19, 2000, the ALJ found in favor of appellee, and specifically found no statute of limitations violation, imposed a 36% penalty on appellant, and imposed a $10,000 fine for contempt on appellant. The Commission affirmed the ALJ’s decision, but modified the findings with respect to the fine, holding the fine in abeyance contingent on appellant complying with the Commission’s orders. It is from this order that appellant brings this appeal.
When reviewing a decision of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
Appellant’s first point on appeal is that the Commission erred in not finding that the statute of limitations had run on appellee’s claim for additional benefits pursuant to Ark. Code Ann. § ll-9-702(b). Section ll-9-702(b) in its pre-Act 796 form states:
(1) In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
(2) The time limitations of this subsection shall not apply to claims for the replacement of medicine ... permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies, but replacement of such items shall not toll the running of the statute of limitations.
Appellant argues that the statute of limitations has run as the last medical bill it paid was for treatment on February 10, 1998, and appellee did not file his claim for additional benefits until October 1999. We hold that the statute of limitations was tolled as a result of appellant’s refusal to provide treatment by Dr. Cavanaugh after appellee was referred to him, and treatments by Dr. Mitchell Young from May 5, 1999, though December 25, 1999. The ALJ’s opinion of October 29, 1997, stated that appellant was responsible for continued reasonably necessary medical and related treatment, and that Dr. Bundrick was appellee’s primary medical provider. Appellee testified that he attempted, unsuccessfully, to arrange treatment with Dr. Bundrick shortly after the ALJ rendered his October 29, 1997 opinion. Appellee’s unsuccessful attempt to arrange treatment with Dr. Bundrick was a result of the appellant not notifying Dr. Bundrick’s office that it would pay for an evaluation and reasonably necessary treatment for appellee’s injuries. Eventually, on February 10, 1998, Dr. Bundrick treated appellee, and referred appellee to Dr. Cavanaugh for low back pain. Appellant never provided the treatment by Dr. Cavanaugh. Dr. Cavanaugh would not see appellee until appellant approved the visit, and appellant never approved the visit. Further, Dr. Bundrick told appellee that if all he needed was a cortisone injection in his right knee, and if he had a physician who could give the injection in Texarkana, it would save him a trip to Shreveport. In following Dr. Bundrick’s advice, appellee saw Dr. Mitchell Young on several occasions. Dr. Young gave appellee injections into his right knee on May 25, 1998, and next on June 9, 1999. Appellant argues that since injections to the knee were the only thing covered by the “so-called referral” that the period has run. However, since appellant would not approve the visit to Dr. Cavanaugh regarding his back, and since Dr. Bundrick did not treat the back, it was necessary for appellee to see Dr. Young regarding his back pain. Appellee was treated for his back pain by Dr. Young on 9/23/98, 1/13/99, 4/20/ 99, and 5/25/99. Based on this we hold that appellee’s claim for additional benefits is not barred by Ark. Code Ann. § ll-9-702(b).
Second, appellant argues that the Commission erred in finding that it willfully and intentionally failed to pay for the incurred medical treatment received by appellee under the care of Dr. Bun-drick subsequent to the medical service of February 10, 1998, and ordering it to pay a 36% penalty. Arkansas Code Annotated § 11-9-802 (Repl. 1996) states in relevant part:
(d) Medical bills are payable within thirty (30) days after receipt by the respondent unless disputed as to compensability or amount.
(e) In the event the commission finds the failure to pay any benefit is willful and intentional, the penalty shall be up to thirty-six percent (36%) payable to the claimant.
The ALJ found that a bill for reasonable and necessary medical treatment provided by Dr. Bundrick on December 6, 1999, had not been paid. Further the ALJ found that appellant had not paid for prescription medication provided by Dr. Bundrick. We hold that there is substantial evidence to support the Commission’s imposition of a 36% penalty upon appellant.
Last, appellant argues that the $10,000 fine imposed is excessive and violates the Due Process Clause of the Arkansas Constitution as well as the United States Constitution Amendment 14, § 1, specifically that the fine violates the prohibition against the deprivation of property without due process, and equal protection. We do not reach the merits of appellant’s argument as the Commission suspended and held in abeyance the fine, conditioned on appellant’s future compliance with its past and prospective orders. A suspension of a punishment for contempt is in effect a complete remission. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). This renders the issue moot. See Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). We do not decide cases that are moot, or render advisory opinions, or answer academic questions. See K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000). Accordingly, we reject appellant’s argument.
Affirmed.
Jennings and Baker, JJ., agree. | [
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John B. ROBBINS, Judge.
Appellant Darlene Ford appeals her convictions for possession of ephedrine and for being an accomplice to the manufacture of methamphetamine, for which she was sentenced to concurrent terms of six and ten years in the Arkansas Department of Correction, respectively. She argues that there is insufficient evidence to support the convictions entered by the Greene County Circuit Court. We affirm her conviction of possession of ephedrine but reverse her conviction of being an accomplice to the manufacture of methamphetamine.
Appellant filed timely motions for directed verdict, which were denied. This permits her to contest the sufficiency of the State’s evidence against her, inasmuch as a motion for a directed verdict is a challenge to the sufficiency of the evidence. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). Circumstantial evidence may constitute substantial evidence, but it must exclude every other reasonable hypothesis consistent with innocence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Whether the evidence excludes every hypothesis is left to the jury to determine. Williams, supra. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra. We make no distinction between direct and circumstantial evidence when reviewing the sufficiency of the evidence. Williams, supra. Neither do we pass on the credibility of the witnesses; that duty is left to the trier of fact. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).
The evidence at the jury trial, viewed in the light most favorable to the State, revealed that in January 1999, an investigation was underway in Paragould, Arkansas, regarding the reported sale of large quantities of pseudoephedrine tablets at a Junior Food Mart on Highway 412 East. The Paragould Police Department sent a confidential informant to the store to purchase pseudoephedrine tablets, ether, and lithium batteries, in a controlled buy. The informant purchased two cans of starting fluid and two packages of “AA” lithium batteries on January 18, 1999. Two days later on January 20, the informant purchased two cans of starting fluid, fifteen bottles of pseudoephedrine tablets, and two packages of “AA” lithium batteries. The next day, January 21, the informant purchased twenty-four bottles of pseudoephedrine tablets. On February 11, 1999, the informant purchased fifteen bottles of pseudoephedrine tablets and four cans of starting fluid. On February 17, 1999, the informant purchased twelve bottles of pseudoephedrine tablets, two cans of starting fluid, and one package of lithium batteries.
In the midst of these transactions, Roger Case, a narcotics investigator with the Little Rock Police Department assigned to the Drug Enforcement Agency, opened a case file based upon the sales made at the Junior Food Mart and targeted the store as a major distributor of pseudoephedrine and ephedrine. Appellant was the store manager and was the person most often involved in sales of pseudoephedrine.
Case presented himself to appellant at the store on February 2, 1999, asking to purchase her entire stock of pseudoephedrine pills in one buy, just in case the enforcement authorities were following him. In his conversation with appellant, they discussed methamphetamine production, and Case offered to trade the pills for methamphetamine. Case again presented himself to appellant on June 30, 1999, and bought 144 botdes of pseudoephedrine for $1200, though he offered to trade the finished drug for the pills. Case brought the $1200 in payment on July 14, at which time he also purchased lithium batteries and again discussed trading the pills for the finished drug. Appellant had explained to Case that she would not “hold” any quantity for him; she sold the pills on a “first come, first serve” basis as they were delivered from the wholesaler.
When Case arrived at the store on September 1 to purchase more pills, appellant was not there but was on sick leave. Case was also told that appellant had with her five cases of pseudoephedrine pills, the store’s entire stock, which was against store policy. Later that day, Case called appellant on her cell phone and arranged to meet her in Jonesboro to purchase a case. Upon meeting in a restaurant parking lot, appellant gave Case a price of $1350 for one case; Case only had $1200 and offered her the difference in methamphetamine, which appellant declined. Appellant took the $1200 and accepted Case’s promise to pay the $150 later. Case left after consummating the purchase, and he notified authorities of what appellant had in her Jeep. Her vehicle was stopped for a moving violation, and officers seized the four remaining cases of pseudoephedrine tablets, each case containing 144 bottles. These events led to the charges being filed against her.
At trial, Case testified that one method of manufacturing methamphetamine is “the Nazi method.” Case related that this method requires ephedrine, large amounts of ether that can be found in starting fluid, large amounts of sodium metal or lithium that can be extracted from lithium batteries, and anhydrous ammonia. Case testified that, assuming a 72% yield, one case of pseudoephedrine tablets yields 886 grams of methamphetamine. The State entered into evidence the cases of pills retrieved from her vehicle, a box containing cans of starting fluid, the various items purchased by the informant and Case on the dates fisted above, and one cassette tape of a recorded interview with appellant.
Appellant testified in her own defense that she was urged by upper management to sell the pills. She stated that pills that were invoiced from wholesale to other store locations were sent to her store to sell. The store had a permit to sell the pills. She maintained that she figured out what the sales were being used for, and she did not condone it, but she was authorized and encouraged to sell whatever amount was available. She admitted that she delivered large quantities of the pills to a storage facility for another man on one occasion. She did not deny selling a case of the pills to Case in the parking lot that day, though most of the transactions were performed at her desk in the store, keeping the cash in her desk until entering them later in the retail register. Appellant did not deny that she overcharged in bulk sales and that these were cash transactions, nor did she deny that she was wrong to pocket the difference. Appellant denied any knowledge that what she was doing was criminal.
The jury was instructed on the law, and after deliberation, found her guilty of possessing more than five grams of ephedrine and being an accomplice to the manufacture of methamphetamine. This appeal arises from those judgments.
Possession of Ephedrine
Appellant argues that she is not guilty of violating Ark. Code Ann. § 5-64-1101 (Repl. 1997), which provides:
(a) It shall be unlawful for any person to possess more than five (5) grams of ephedrine, its salts, optical isomers and salts of optical isomers, alone or in a mixture, except;
(1) Any pharmacist or other authorized person who sells or furnishes ephedrine, its salts, optical isomers and salts of optical isomers, upon the prescription of a physician, dentist, podiatrist, or veterinarian; or
(2) Without a prescription, pursuant to the Federal Food, Drug, and Cosmetic Act or regulations adopted thereunder provided that the person possesses a sales and use tax permit issued by the Arkansas Department of Finance and Administration; or
(3) Any physician, dentist, podiatrist, or veterinarian who administers or furnishes ephedrine, its salts, optical isomers and salts of optical isomers, to his or her patients; or
(4) Any manufacturer, wholesaler, or distributor licensed by the State Board of Pharmacy who sells, transfers, or otherwise furnishes ephedrine, its salts, optical isomers and salts of optical isomers, to a licensed pharmacy, physician, dentist, podiatrist, veterinarian, or any person who possesses a sales and use tax permit issued by the Arkansas Department of Finance and Administration.
(b) Any person who violates the provisions of this section shall be guilty of a Class D felony.
The evidence demonstrates that four cases of pseudoephedrine were seized from her car containing 576 bottles of pseudoephedrine tablets, and appellant does not contest that she possessed more than five grams of ephedrine. Her contention is that she held the tablets under the authority permitted to the store. However, appellant is the person most interested in the outcome of this trial, and she was in possession of the store’s property, selling it outside the store and admittedly keeping profits from these sales. This was a fact question on credibility, left to the fact finder to resolve and which we do not disturb on appeal. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). We hold that sufficient evidence supports her conviction on this charge.
Accomplice to the Manufacture of Methamphetamine
Appellant also challenges the sufficiency of the evidence to convict her of accomplice to manufacturing methamphetamine, asserting that there was no proof that anyone manufactured methamphetamine. Therefore, she argues, because the proof did not establish that an underlying crime was committed, she could not be convicted of being an accomplice to it. The State argues that appellant was guilty as an accomplice via her attempts to provide most of the precursors of the drug. Appellant’s argument is well-taken.
Manufacturing of controlled substances is defined in Ark. Code Ann. § 5-64-101 (m) (Repl. 1997), and it states:
“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either direcdy or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
(1) By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or
(2) By a practitioner or by his authorized agent under his supervision for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale;
Appellant was charged and convicted as an accomplice to the crime of manufacture of methamphetamine. The status of an accomplice is defined in Ark. Code Ann. § 5-2-403 (Repl. 1997):
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
There is no distinction between criminal liability of an accompbce and the person who actually commits the offense. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). However, as pointed out by appellant, we have held that “an accomplice’s liability does not attach until the State proves that the substantive crime was completed.” Savannah v. State, 7 Ark. App. 161, 164, 645 S.W.2d 694, 695 (1983). The 1988 Supplementary Commentary to the statute on accompbce liabibty reiterates this reasoning:
It speaks in terms of completed offenses. Normally, one is not an accomplice to an offense if, despite his encouragement, no offense is committed. . . . For example, if A agrees to aid B to manufacture and sell drugs, A has no criminal liability on accompbce theory unless B actually commits the offense planned.
The State is correct when it points out that appebant admitted that she was told that the pibs were being used to manufacture methamphetamine, appebant knew that the only product that she did not sell that was necessary to the production of methamphetamine was anhydrous ammonia, and appebant overcharged for the cost of the pibs and kept the difference. It cites to Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999), for the proposition that the presence of ah the components necessary to manufacture methamphetamine except one is sufficient evidence to support a conviction. However, in that case, the components were found in Smith’s home, along with the equipment for a working lab. The appeal before us now is for the crime of acting as an accomplice to an offense that was not proven by any of the State’s evidence. Indeed, the ingredients purchased were entered into evidence in the same packaging that they were in when purchased by the informant and Case. Based upon the Commentary and our prior decision relating to this issue, we conclude that sufficient evidence does not exist to support appebant’s conviction for being an accompbce to manufacturing methamphetamine. We reverse and dismiss this conviction.
Affirmed in part and reversed in part.
Bird and Vaught, JJ., agree.
We recognize, as does the State, that the charging document and judgment reflect that the State was proceeding on Ark. Code Ann. § 5-64-1102, possession of ephedrine with intent to manufacture, but the jury verdict and all arguments at trial related to Ark. Code Ann. § 5-64-1101, possession of more than five grams of ephedrine. The parties agree that this is the appropriate law applicable herein, and we address the appeal with that stipulation. | [
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Robert J. Gladwin, Judge.
Following its determination that a force reduction was necessary, Southwestern Bell began its internal informal surplus proceedings in which employees with the most seniority were offered the opportunity to sign up for a voluntary severance package (hereinafter, “VSP”). Appellants accepted the VSP and took a sum of money approximately equal to one year’s salary. They then filed claims for unemployment benefits. The Appeal Tribunal affirmed the Department’s determination that appellants were eligible for benefits. The Board of Review, however, reversed that decision because it found that appellants had voluntarily left their work without good cause connected with the work. On appeal to this court, appellants argue that substantial evidence does not support the Board’s decision. We disagree and affirm.
According to the area manager Rick Barteau, the VSP was offered based on seniority, with the employee with the highest seniority receiving the first right of refusal. The offer would then be extended to the employee with the next highest seniority and would continue down the list until the surplus was removed. Appellants’ testimony collectively indicated that appellee had suggested that if there were not enough volunteers for the VSP, the employees with the least seniority would be laid off in order to eliminate the surplus. Both the area manager and appellants testified that appellants were not in any danger of losing their jobs, given their seniority.
In reversing the award of benefits, the Board noted that appellants had to first'voluntarily apply for the VSP and then accept it once an offer was made by appellee. The Board found that appellants’ jobs were clearly suitable for them because the work would have been a continuation of the jobs they were already performing. The Board also found that appellants were not in imminent danger of losing their jobs. Because appellants had control over whether their employment continued, the Board concluded that they were not entitled to unemployment benefits.
The findings of the Board of Review are conclusive if they are supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). Even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
An individual shall be disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work. See Ark. Code Ann. § 11 -10-513(a)(1) (Repl. 2002). In Dingmann v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn. Ct. App. 1988), the Minnesota Court of Appeals interpreted the term “voluntarily quit,” and held that the test is whether the individual has exercised his own free will or choice in the separation. Weaver v. Director, 82 Ark. App. 616, 120 S.W.3d 158 (2003). “Voluntarily leaving work” has been said to be the opposite of discharge, dismissal, or lay-off by the employer severing relations with the employee. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). The basic design of the Employment Security Act is to protect an employee from his becoming unemployed through no fault of his own. Id. Unemployment benefits are not for those individuals who are voluntarily unemployed. Wacaster v. Daniels, 270 Ark. 190, 603 S.W.2d 907 (Ark. App. 1980).
Appellants seemingly concede that there is a split of authority in other jurisdictions on whether acceptance of an incentive program constitutes good cause attributable to employment such that benefits should be awarded. Although appellants assert that the Board failed to consider a line of cases that support their position, there is no evidence to support such assertion. The Board was simply not persuaded.
Appellants rely on one Arkansas case in particular, Jackson v. Daniels, 267 Ark. 685, 590 S.W.2d 63 (Ark. App. 1979), and contend that it is similar to the case at bar. In that case, claimant was a manager of a restaurant that was sold to a new owner. Thinking that lay offs were imminent, claimant expressed a preference that she be laid off before the two employees she had recently hired. In awarding benefits to claimant, this court found a distinction between simply expressing a preference to be laid off in the event of a lay off and a direct request to be laid off work. Appellants argue that, similarly, they requested to participate in a reduction in force that was both negotiated and accepted by appellee.
In Terry v. Director of Labor, 3 Ark. App. 197, 623 S.W.2d 857 (1981), the employer initiated a reduction in the work force and claimant was given the option of being laid off or taking one of two available jobs. Claimant chose to be laid off work and was disqualified from receiving benefits. In reversing the Board’s decision, this court believed the Jackson case to be controlling and concluded that the fact that the claimant preferred to be laid off did not alter the fact that his employment ended by reason of a work reduction instituted by the employer and not for personal reasons. The decision in Terry was later overruled by this court in Reynolds Metals Co. v. Couch, 8 Ark. App. 37, 648 S.W.2d 497 (1983), but as appellants point out, it did not expressly overrule Jackson.
In Reynolds, management announced a force reduction and offered senior employees the choice of “bumping” into a lower job classification or taking a lay off. Rather than exercising their “bumping rights,” claimants chose the lay off and were subsequently awarded benefits. Realizing that there was no evidence as to the suitability of the work offered, this court reversed its position in Terry and held that good cause to refuse work that is otherwise suitable does not exist merely because the employee’s acceptance of the offered position will result in the discharge of a fellow employee with less seniority. The case was remanded for the Board to consider the suitability of the offered work.
“Good cause” has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment and is ordinarily a question of fact for the Board of Review to determine. Thornton v. Director, 80 Ark. App. 99, 91 S.W.3d 523 (2002). It is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting. Gunter v. Director, 82 Ark. App. 346, 107 S.W.3d 902 (May 28, 2003). Although appellants contend that volunteering for the VSP in order to save the job of a fellow employee with less seniority constitutes good cause for leaving their work, this contention flies in the face of this court’s holding in Reynolds, supra. As pointed out by the Board, appellants availed themselves of the VSP even though they had the option of continuing in positions that were clearly suitable for them regardless of the fact that appellee initiated the process to reduce its workforce.
The dissenting judges contend that we should consider the 2003 amendment to Ark. Code Ann. § 11-10-513, enacted after the Board’s decision, as indicative of the legislature’s intent. Pursuant to the amendment, “[n]o individual shall be disqualified under this section if he or she left his or her last work because he or she voluntarily participated in a permanent reduction in the employer’s work force after the employer announced a pending reduction in its work force and asked for volunteers.” Ark. Code Ann. § ll-10-513(c)(l) (Supp. 2003). The dissenting judges essentially would have this amendment apply retroactively.
It is presumed that all legislation is intended’to act prospectively, and statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used. See City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999); James v. James, 52 Ark. App. 29, 914 S.W.2d 773 (1996). Any doubt on the matter is resolved against retroactive application. Arkansas Rural Med. Prac. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). This rule, however, does not ordinarily apply to procedural or remedial legislation. Bean v. Office of Child Support Enfcm’t, 340 Ark. 286, 9 S.W.3d 520 (2000). Although the Employment Security Act is remedial in nature and must be liberally construed in order to accomplish its beneficent purpose, Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App. 1980), retroactive application is appropriate for remedial statutes that “do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.” Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). Statutes which are remedial or procedural generally supply new, different, or more appropriate remedies which relate to existing rights, and do not create new rights or extinguish old ones. Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962).
The 2003 amendment was not enacted to clarify the existing law. Indeed, the amendment changes the existing law by creating a new right. In Gannett River States Publishing Co. v. Arkansas Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990), where the language of an amendment to the Arkansas Freedom of Information Act was not curative or for clarification but, rather, made seven additional types of records exempt from disclosure, the amendment operated prospectively only. Cf. Pledger v. Baldor Int’l, Inc., 309 Ark. 30, 827 S.W.2d 646 (1992), (where an act’s preamble stated that its purpose was to clarify prior law, the subsequent act could be considered). While it is true that we can look to changes to statutes made by subsequent amendments to determine legislative intent, Pledger v. Mid-State Constr. & Materials, Inc., 325 Ark. 388, 925 S.W.2d 412 (1996), we cannot discern any intent on the part of the General Assembly to have the 2003 amendment applied retroactively. Considering the law as it existed at the time of the Board’s decision, we hold that substantial evidence supports the Board’s determination that appellants are not eligible for unemployment benefits.
Affirmed.
Stroud, C.J., Pittman, Bird, Vaught, and Crabtree, JJ., agree.
Hart, Baker, and Roaf, JJ., dissent. | [
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