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Josephine Linker Hart, Judge.
Appellant, Sonya J. Calhoun, appeals from the circuit court’s denial of her petition for change of custody in which she urged that the custody of her minor child, who was bom March 1, 1995, be transferred from the custodial parent, John Mark Calhoun, to her. Appellant, noting that the court found that she established a material change in circumstances, argues that the court erred when it “failed to find that all those changes had an [e]ffect on the best interest of the child.” Because we conclude that the court failed to determine whether the material change in circumstances affected the best interest of the child, we reverse and remand for further proceedings.
In a decree entered October 3, 1995, the parties were divorced and granted joint custody of their only child. However, in a decree entered May 22, 1997, custody was transferred to appellee. On December 19, 2001, appellant filed a petition for a change of custody, alleging that since the previous change of custody, there had been a significant change in circumstances and that best interest of the child necessitated that custody be transferred to her. Particularly, appellant noted that appellee had divorced his second wife and married his third and that he had been placed on administrative leave by the Pine Bluff Police Department because of inappropriate conduct, news of which was published in the newspapers. She concluded that these “circumstances are not conducive to a stable and happy home life for the minor child.”
Hearings on the petition were held on August 27 and November 14, 2002. At the first hearing, appellant presented the testimony of appellee, who at that time was employed as a police officer. He testified that since the 1997 custody hearing, he had divorced his second wife, having separated in October of 1998, and on May 18, 2001, married his third wife. Appellee admitted that in December of 2001 he had been demoted in rank and suspended for thirty days without pay for conduct unbecoming an officer, abuse of position, and dishonesty, because, in November of 2001, while on duty, he had sexual relations with the wife of a deputy he was supervising. Also, at that hearing, the director of children’s studies at the Southeast Arkansas Behavioral Health Care System testified that he performed a social evaluation of the parties and that the child wanted to live with appellant.
At the November 14 hearing, appellant further established through appellee’s testimony that he had resigned from the police force and that he and his wife were opening a sports grill. According to appellee, he currently did not have any income, having received his last weekly check of $613 on November 1. Appellee testified that when he left his job, he took a lump-sum payout of his retirement in the amount of $25,000, part of which he would use to start the restaurant. Appellee stated that his restaurant would be open for lunch and dinner, would close about 9:00 p.m. during the week, but would remain open until 10:00 to 11:00 p.m. on Friday and Saturday and would close on Sundays. He further stated that his wife would also run the restaurant and would quit her current job. He estimated that his income would be $400 a week with his wife earning the same amount.
In an order filed December 9, 2002, the court concluded that appellant “showed a material change of circumstances in that [appellee] is currently in his third marriage. She also showed a material change of circumstances with [appellee’s] placement on administrative leave and the resulting publicity in the press.” The court also noted that appellant established that appellee was currently unemployed, and the court noted that appellee and his “present wife” would open a business in December, using part of his retirement funds to capitalize the business. The court, however, further stated that “although [appellant] met her threshold burden [of showing a material change in circumstances], she did not show that a modification of the custody order of May 22, 1997[,] would be in the best interest of the child. There was no showing that the third marriage, administrative leave[,] or publicity had an adverse impact on the welfare of the child.” Also, the court found that appellant “failed to show that the employment status of [appellee] is presently having a direct adverse impact on the parties’ child.” The court further concluded that the minor child was “functioning as a normal child” in appellee’s custody. Appellant appealed from that decision, arguing that while the court found that she established a material change in circumstances, the court erred when it “failed to find that all those changes had an [ejffect on the best interest of the child.”
The Arkansas Supreme Court has stated that “the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.” Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). Further, the court has stated that “[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.” Jones, v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). “[C]hild custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances.” Id. at 487, 931 S.W.2d at 770. “The party seeking modification of the child-custody order has the burden of showing a material change in circumstances.” Id. at 491, 931 S.W.2d at 772. Further, “[f]or a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child.” Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).
We conclude appellant is correct in her assertion that the circuit court failed to consider the best interest of the minor child. After the court found that appellant had met her threshold burden of showing a material change in circumstances, the court then stated that appellant did not “show” that a modification would be in the best interest of the child, as she did not “show” that the child had suffered an “adverse impact” by reason of the changed circumstanóes. In doing so, the court failed to apply the two-step analysis described above and as set forth in Lewellyn. After the noncustodial parent has shown a material change in circumstances, rather than requiring the noncustodial parent to then show an adverse impact on the child, the court should weigh these material changes and consider the best interest of the child. Here, the court found there was a material change in circumstances but then placed an additional burden on appellant, that is, a showing of an “adverse impact” on the child, without simply weighing the child’s best interest.
We do not hold, however, that the circuit court should never consider whether there was adverse impact on the child when determining whether a material change in circumstances has occurred. In Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003), the Arkansas Supreme Court addressed the issue of whether the noncustodial parent showed a material change in circumstances. In holding that the noncustodial parent’s evidence was insufficient to constitute a material change in circumstances, the court noted that the noncustodial parent “failed to demonstrate any actual harm or adverse effect.” Accordingly, in some instances it may be the adverse impact on a child that makes a change in circumstances “material.” This is also in keeping with Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). There, the Arkansas Supreme Court held that the custodial parent’s relocation no longer constituted a material change in circumstances, and there was a presumption in favor of relocation, with the noncustodial parent having to rebut the presumption. In that case, the court concluded that there was no material change in circumstances, noting that there was no evidence that the relocation would be detrimental to the children.
Moreover, we do not hold that in making a determination of the best interest of a child, the court cannot consider whether the material change in circumstances had an adverse impact on the child. See Lewellyn, supra (determining the best interest of a child by considering whether a material change in circumstances had a “negative emotional impact” on the child). We hold that once the noncustodial parent has established a material change in circumstances, the court is to weigh the best interest of the child to determine which parent shall serve as the custodian of the child.
Here, the circuit court found that appellant met the first step of the two-step analysis by concluding that there had been a material change in circumstances. However, rather than weighing the best interest of the child, the court required appellant to show that the material change in circumstances had an adverse impact on the child. Thus, in view of the circuit court’s requirement that the noncustodial parent show an adverse impact on the child, or stated differently, that the child must first suffer harm before the court considered the best interest of the child, we must remand the case to the circuit court for further proceedings. Consequently, we reverse and remand for the court to determine, without requiring appellant to establish an adverse impact on the child, whether a change in custody is in the best interest of the child. See Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003) (reversing and remanding where this court found that the circuit court made a misstatement of law in its findings).
Reversed and remanded.
Robbins, Bird, Neal, and Roaf, JJ., agree.
Stroud, C.J., and Pittman, Gladwin, and Griffen, JJ., dissent.
The dissent makes three assertions of fact to which we must respond. First, the dissent states that appellant is working in the “adult industry.” Any such conduct predated the May 22, 1997, change of custody to appellee,and there was no allegation that appellant engaged in any such conduct after appellee was awarded custody on that date. In fact, the evidence established that appellant had positive changes in her life, with both a stable environment and a stable job. Second, the dissent asserts that “the minor child was also aware of appellant’s promiscuous conduct at her home.” There is nothing in the record suggesting that appellant was engaged in “promiscuous conduct.” The witness quoted by the dissent did not testify that appellant was engaged in “promiscuous conduct,” only that based on what he was told by the minor child, he “wonder[ed]” about appellant’s private life, and that while appellee had a history of relationships with different women, it sounded “like [the] mother might.” However, he further testified that based on what he was told by the minor child, it was “unclear” whether appellant was having a relationship with other men. For her part, appellant testified that both she and one of the three married men mentioned by the minor child had together taken their respective children out to 1-30 Speedway,Wild River Country, and twice to dinner; that the second man was in his sixties and was performing maintenance work on her home; and that the third man was a neighbor in his seventies who walks the neighborhood.Third, the dissent suggests that we are disregarding appellee’s testimony regarding his work hours. Certainly, the circuit court may consider appellee’s testimony on remand and accord it the weight the court deems appropriate. In sum, the dissent appears to labor under the misapprehension that we have remanded for a change of custody. We do not decide that issue here. | [
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R. Baker, Judge.
Appellants bring this appeal challenging a decision by the Little River Chancery Court. The chancellor refused to set aside the decision of the appellee, the Bethlehem Baptist Church, which led to the expulsion of appellants from appellee’s religious organization. Appellants argue that the trial court erred in finding that “notice” had been properly given to appellants that they were to be removed as church officers and expelled as members of the church. We affirm.
In January 1996, H.L. Walter was called to fill a vacancy in the pulpit of the Bethlehem Baptist Church. While Pastor Walter was at the Bethlehem Baptist Church, the church began having problems with some members who were serving as deacons and trustees. The deacons and trustees removed Pastor Walter from the pulpit without a vote of the church membership. As a result of their actions, the deacons and trustees were removed from their positions and expelled from the church’s membership. Throughout the disciplinary process, there were two church-wide meetings. The first meeting was held on February 6, 2000, where appellants were removed from their positions. A second meeting was held on February 20, 2000, where appellants were dismissed as members of the church.
At trial, Pastor Walter testified that the church used the “Busy Pastor’s Guide,” published by the National Baptist Convention, as a standard guide for church procedure. Specifically, Pastor Walter testified that the guide “had certain do’s and don’ts and helpful hints about how to run the church.” Any final decisions regarding church business were to be brought before the church body as a whole for a vote. Pastor Walter testified that the rules require that members proposed for expulsion are advised in writing of the charges against them; however, there is conflicting evidence that a writing is actually required, and the “Busy Pastor’s Guide” was never made a part of the record.
Janice Dancer, the church secretary, testified specifically that she did not notify appellants or any other church member by letter regarding the February 6 meeting. Instead, the appellants and the church members were informed of the meeting by a phone call or a personal visit. Appellants were absent from the February 6 meeting; however, following the meeting, a letter was sent to appellants informing them of their removal from church office. Mrs. Dancer’s testimony was internally inconsistent concerning when and how she gave notice of the February 6 meeting. However, she consistently testified that approximately one week before the February 20 meeting, she called the church members, including appellants, to inform them that a meeting was scheduled.
At the February 20 meeting, regarding appellants’ membership in the church, all appellants were present. Pastor Walter testified that appellants were not only present, but were allowed the opportunity to speak on their own behalf in accordance with the rules set out in the “Busy Pastor’s Guide.” In .contrast, most of the appellants testified that they were not given an opportunity to speak; however, appellant Earline Cannon testified that she was given a chance to speak prior to the vote of the membership.
Chancery cases are reviewed de novo, and the chancellor’s findings will not be disturbed unless they are clearly erroneous or clearly against the preponderance of the evidence. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000) (citing O’Neal v. O’Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996)). 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. Stewart v. Stewart, 72 Ark. App. 405, 37 S.W.3d 667 (2001). Due deference is given to the superior position of the chancellor to judge the credibility of the witnesses. Holmesley v. Walk, 72 Ark. App. 433, 39 S.W.2d 463 (2001).
Courts of equity, being without ecclesiastical jurisdiction, will neither revise nor question the ordinary acts of church discipline or the administration of church government. Ables v. Garner, 220 Ark. 211, 246 S.W.2d 732 (1952). However, the courts may properly assume jurisdiction of a dispute between factions of a church organization where property rights are involved. Id. at 214, S.W.2d at 734 (citing Monk v. Little, 122 Ark. 7, 182 S.W. 511 (1916)).
Appellants contend that the trial court erred in finding that “notice” had been properly given to appellants that they were to be removed as church officers and expelled as church members. Appellants specifically argue that appellee failed to provide them with written notice in accordance with church procedure and that they were provided no opportunity to defend themselves regarding the charges against them. The chancellor found that appellants were dismissed as officers and members of the church by a vote from the majority of members present at the two meetings. The chancellor stated that the majority of the congregation is entitled to the management and control of the church’s affairs. The chancellor did not find that the church had any formal set of rules or regulations in place concerning matters of governance.
Arkansas case law reflects that the rights of different factions forming a religious body under the congregational form of church government are to be determined by the membership where a majority controls. Abies, supra. This statement, of course, assumes that the vote has been cast according to established rules. Id. It also presupposes that from a doctrinal standpoint there has not been such an abrupt departure from congregational principles as to discredit the prevailing group as a matter of law. Id. The Georgia Supreme Court has held that, at a minimum, before a member can be expelled from a religious society, notice must be given him to answer the charge made against him and an opportunity offered to make his defense. Bagley v. Carter, 285 Ga. 624, 220 S.E.2d 919 (1975). Without such notice and an opportunity to be heard, the order of expulsion is void. Id.
Pastor Walter and Erline Cannon testified that the appellants were given an opportunity to speak at the February 20 meeting. In addition, Janice Dancer testified that the appellants were given notice of both the February 6 and the February 20 meeting. Moreover, all of the appellants were present at the February 20 meeting. The testimony of the witnesses in this case was frequently internally inconsistent, and also conflicted with the testimony of other witnesses. When evidence is contradictory, we give due deference to the superior position of the chancellor to judge the credibility of the witnesses. Holmesley, supra. We cannot say that the chancellor’s findings in this case were clearly erroneous; thus, we affirm.
Jennings and Crabtree, JJ., agree. | [
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R. Baker, Judge.
There are three appellants in this case, Washington Regional Medical Center (WRMC), Northwest Arkansas Rehabilitation Hospital (NARH), and Health-south Corporation (HC). Appellant, WRMC, appeals the decision of the Workers’ Compensation Commission. The Administrative Law Judge (ALJ) held that appellants WRMC and NARH were equafly liable for appellee’s compensable injury and that appellant HC was not hable for appellee’s injury. The Commission affirmed the ALJ’s decision. On appeal, appellant WRMC argues that the Commission’s award of benefits apportioned equally between appellants WRMC and NARH was incorrect as a matter of law and not supported by substantial evidence. Appellant HC argues that there was substantial evidence to support the Commission’s decision, as does the appellee. However, appellant NARH failed to submit a brief. We reverse.
Appellee, Janice Smith, is a registered nurse. In May 1990, she became employed by WRMC as a staff nurse. Up until May 1994, appellee worked more than forty hours a week for WRMC. In May 1994, appellee began working for NARH full time. Appellee remained employed with WRMC; however, her hours were reduced to twenty to thirty hours per week. In May 1997, appehee terminated her employment with WRMC. On November 1, 1997, HC purchased NARH. Appellee worked for HC only one day on November 3, 1997; she was terminated by HC on November 11, 1997. During appellee’s employment with WRMC and NARH, appellee was required to wear latex gloves.
Appellee testified that around February or March 1997, she began to have symptoms such as shortness of breath, nausea, chest pains, and she would become diaphoretic. Appellee saw Dr. Laura Koehn, who diagnosed her with severe latex sensitivity after testing showed appellee to have a high reaction to latex. Dr. Koehn testified that appellee had a previous asthma condition that was worsened by the latex exposure, among other things. In her opinion, the latex exposure broke down any resistance appellee had. Dr. Koehn testified that appellee had been forced to make several trips to the emergency room due to anaphylactic reactions from the latex while at work.
The ALJ found that appellee had proven by clear and convincing evidence that her latex sensitivity was causally related to her employment with WRMC and NARH, and liability was to be apportioned equally between 'WRMC and NARH. The Commission affirmed, and this appeal followed.
When reviewing a decision of the Workers’ Compensation Commission, we must 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. Quality Serv. Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991) (citing Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Id. (citing Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983)).
The simple issue in this case is: When was appellee last injuriously exposed? WRMC specifically argues that it was not the site of the “last injurious exposure,” and thus is not the party responsible for appellee’s medical expenses and benefits. We agree. Arkansas Code Annotated section 11-9-601 (f)(1) (Repl. 1996) states that, “[w]here compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of the disease and the carrier, if any, on the risk when the employee was last injuriously exposed under the employer, shall be liable.” (emphasis added). WRMC cites Employers Liability Assurance Corp. v. Employers Mut. Liab. Ins. Co., 232 Ark. 113, 334 S.W.2d 701 (1960), in support of its argument. In that case, our supreme court stated that “[mjost authorities seem to agree that the date which determines liability is not the date when the symptoms of the disease first appear but rather the date when some kind of disablement (such as cessation from work) occurs.” Id. at 116, 334 S.W.2d at 703. The court in that case concluded that although the employee’s dermatitis appeared during the period insured by the previous carrier, the second carrier was held liable because the permanent disability did not occur until the second carrier was on the risk. Id. at 118, 334 S.W.2d at 704.
Appellee testified that she began having symptoms in February or March of 1997. On May 8, 1997, appellee terminated her part-time work for WRMC; therefore, she was not exposed to latex at WRMC’s place of business after May 8, 1997. It was not until May 22, 1997, that Dr. Koehn tested appellee for latex sensitivity; it was not until November 1997, when she was terminated by HC that she left the workplace altogether. Appellee testified that by November 3, 1997, she had filed for long-term disability benefits because her condition had gotten so severe that she was unable to continue working. Nonetheless, appellee was exposed to latex up until November 1997. Because the Commission erred in its interpretation of Arkansas Code Annotated section 11 — 9—601 (f)(1), we hold that there is insufficient evidence to support the Commission’s apportionment of liability in this case. We remand this case to the Commission for findings as to where appellee was “last injuriously exposed” to latex considering the factor of when her disablement occurred, so as to assign liability.
Reversed and remanded.
Robbins and Roaf, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal by Wallace Peter from a decree of divorce granted to his wife, Rita. Suit for divorce on the grounds of personal indignities was filed by Rita and the appellant filed a pro se answer in which he denied that she had grounds for divorce. The appellant did not appear in person at the trial, but his attorney did appear and at the close of appellee’s case moved that her complaint be dismissed for lack of corroborating evidence as to the grounds for divorce. This motion was overruled on the theory, stated by the court, that appellant, by failing to appear at the trial of which he had notice, had abandoned his contest of the grounds for divorce.
Appellant cites us to Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981) and Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981), and says that those are the more recent of numerous cases which hold that testimony as to grounds for divorce must be corroborated by some witness other than the parties to the action. We agree those cases so hold.
In Calhoun the court cited many cases as authority and quoted from one that said the reason for the rule is “the interest which the public have in the marriage relation.” In Copeland the court said: “Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated.” Those cases were based on the long-standing statute compiled as Ark. Stat. Ann. § 34-1207 (Repl. 1962), which was consistently construed to require that a divorce could not be granted upon the uncorroborated testimony of a party to the suit. See Smith v. Smith, 245 Ark. 668, 433 S.W.2d 835 (1968).
The appellee, however, points out that this statute has been amended and at the time this case was tried provided “in uncontested divorce suits corroboration of plaintiff’s ground or grounds for divorce shall not be necessary nor required.” See Ark. Stat. Ann. § 34-1207.1 (Supp. 1983). Thus, while admitting that there was no corroboration of the grounds for divorce in this case, appellee says it was not necessary because the appellant did not show up for the trial and therefore the suit for divorce was uncontested. We do not agree.
Appellant filed an answer denying grounds for divorce. His attorney appeared at the trial and at the close of appellee’s testimony moved to dismiss appellee’s complaint for lack of corroboration. No authority is cited by appellee to support her contention that the failure of the appellant to appear at trial makes the case uncontested and we know of no authority to that effect. In fact, Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980), seems to hold to the contrary. The opinion there clearly recognizes that the amendment to section 34-1207 eliminated the requirement of corroboration in uncontested cases, and while it does not state whether the appellant was in attendance at the trial, it indicates that he did not testify and states:
The appellee’s allegations are not proven by appellant’s failure to deny them. The failure to deny the incidents or conduct does not relieve the appellee of her burden to corroborate her testimony.
We simply do not agree that the instant case was uncontested as to the grounds for divorce. Since there was no corroboration of the appellee’s testimony in that regard, the decree is reversed as to the granting of the divorce and as to any provision based upon the divorce or made because of it.
Reversed and remanded for proceedings consistent with this opinion.
Cooper and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
The appellant, Gary Coy, appeals from the decision of the Board of Review, finding that he was overpaid benefits and is liable for repayment. On appeal, appellant contends that his failure to report part-time earnings while he was collecting unemployment benefits was not a misrepresentation or false statement of a material fact making him subject to repayment under Arkansas law.
The appellant was employed at General Electric in Jonesboro in July of 1981, when he contracted with the V.F.W. Club to tend bar for two hours a day and to do the club’s janitorial work for $200 a week. About two months after contracting with the V.F. W., the appellant lost his job at General Electric, and in October of 1981, he began collecting unemployment benefits. For about a year, from October of 1981 to November of 1982, the appellant drew some kind of benefits — unemployment ($5,406), extended ($1,572), or federal supplemental ($1,179).
Appellant testified before the Appeal Tribunal that he hired two other men, Carl Rupard and Gerald Ishmael, to perform the j anitorial work for which he had contracted and that he did the bartending each weekday afternoon from one to three and came in on Saturday mornings to “carry out the garbage. ’ ’ The V. F. W. paid him $200 a week by check, which the appellant says he cashed. Out of that $200, he testified that he kept $50 for himself and paid $150 in cash to the men he hired to do the janitorial work. Appellant freely admitted at the hearing that he filled out a claim form for each week that he collected benefits and that he checked “No” to the question, “Did you work any during the above week?” He testified that he did not indicate that he had earnings for fear that “since I had been drawing unemployment a few weeks, that they would hold up my check and some kind of a mix-up in the paperwork. I’ve seen'it done quite often. . . . ” Appellant testified that Rupard and Ishmael quit doing the janitorial work at the beginning of 1983 and that since then he was doing all of the work and was collecting $200 a week.
In considering the foregoing evidence, the Board of Review, affirming the Appeal Tribunal, denied benefits to appellant under Ark. Stat. Ann. § 81-1107(f) (1), finding he willfully made a false statement of a material fact in order to receive compensation. Appellant asserts the Board erred and in part relies upon an Arkansas employment security law which provides a claimant can earn up to 40% of his or her weekly benefit amount without penálty while drawing unemployment benefits. Ark. Stat. Ann. § 81-1104(c) (Supp. 1984). He contends that under the statute he could have earned up to $52 a week, 40% of his weekly benefit amount of $131, and that he actually earned only $50 a week, the amount he claims to have kept of the $200 paid to him each week by the V.F.W. This being so, appellant claims that he would have collected the same benefits even had he reported his part-time income; consequently, he argues that his failure to disclose he worked and earned $50 weekly was not material.
Appellant cites Fleury v. State, 114 N.H. 528, 323 A.2d 919 (1974), to persuade us to construe his failure to report income as not “material” within the meaning of our statute. In Fleury, a claimant failed to report that he had received an offer of work. The New Hampshire Supreme Court, in affirming the lower court, held that his failure to report was not material so as to disqualify him from receiving unemployment benefits. The court said:
[T]he determination whether an applicant for benefits has “wilfully” made a false statement or “knowingly” failed to disclose a “material fact... to obtain . . . any benefit” is necessarily factual in nature, as is the determination of what is “material”.
Id. at 531, 322 A.2d at 921.
The New Hampshire Court’s reasoning in Fleury is sound, but we believe it supports the position of the appellee rather than the claimant. Whether the appellant’s failure to report part-time earnings was or was not material within the meaning of the Arkansas statute was a fact question for the Board of Review. In Fleury, the Court determined the claimant’s act was not material. Here, the Board decided the fact question adversely to the appellant, and we find substantial evidence to support the Board’s findings. Even though appellant could have earned up to $52 a week and still have been eligible for benefits, our statutes require that the part-time income be reported. Appellant signed a statement each week saying that he did not work during that week. As the Director pointed out in his brief, knowledge of the appellant’s employment status was of significance to the Agency because it had the responsibility of determining any possible effect a part-time job had upon his eligibility. In addition to determining whether he was entitled to full or reduced benefits, the agency had to determine whether he was available for full-time permanent work, as the statute requires him to be in order to maintain his eligibility. For these reasons, the Board could well determine that his failure to report was indeed “material” within the meaning of the statute.
Appellant also claims the instant case is factually distinguishable from Eden v. Daniels, 269 Ark. 690, 600 S.W.2d 416 (Ark. App. 1980). Mr. Eden, the claimant, failed to report any earnings from a contract job to paint Mr. Swanson’s house. Eden contended that he did not paint the house, but that his brother was the one who actually did the job. Eden claimed that he received only $88 out of the $588.20 Swanson paid on the contract, and that was reimbursement for money his brother had borrowed from him. This Court found, however, that the Board could infer from the events that Eden intentionally misrepresented a material fact when he filed his claim for unemployment benefits. We pointed out that Eden’s own testimony established (1) that Eden advertised for the job; (2) that Eden’s truck, tools, and equipment were used to paint the house; (3) that Eden participated in the work (he claimed he painted a door only); (4) that Eden went with his brother to be paid; (5) that Swanson wrote a check in Eden’s name alone; and (6) that Eden actually received at least a part of the proceeds. We find the facts in Eden quite similar to the facts at bar. Eden turned — not on whether Mr. Eden had earned more than 40% of his weekly benefit amount — but upon whether the Board’s inferences were consistent with the facts of the case.
In the instant case, the appellant admitted that he was the one who signed a written contract with the V.F.W. to tend bar and to provide janitorial services; that he did, in fact, provide services under that contract; that the V.F.W. wrote a $200 check each week to appellant; and that appellant received at least $50 of each check. In addition, there were contradictions in appellant’s testimony at the hearing and his statement on an Employment Security Worksheet that provided fact questions and credibility questions for the Board to resolve.
Although we believe the appellant made a good argument on the question of materiality, we also believe that the question of materiality was one of fact for the Board to resolve. We find substantial evidence here; therefore, we affirm.
Affirmed.
Cooper and Mayfield, JJ., agree.
The appellant did not sign the worksheet statement and at the hearing, he denied having written it. However, an employee at the Employment Security office noted that Coy gave the disputed statement, took it to check against his records, but never returned it to the office. On December 21, 1982, appellant did sign a statement that he would cooperate in any way on his case. | [
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Melvin Mayfield, Judge.
This is an appeal from a trial judge’s decision that found the appellant, H. Wayne Meachum, liable as guarantor of a lease agreement between Telecompo of Arkansas and the appellee, Worthen Bank & Trust Company.
Evidence not in dispute reveals that appellant is an attorney who resides and practices in Dallas, Texas. He is also an officer, a director, and general counsel of Composition Management Company (CMC), a Texas corporation with its principal place of business in Dallas. CMC was intended to be the center for a network of outlying stations which would feed data to CMC for computerized typesetting. CMC’s marketing director, Jerry Sizemore, negotiated with Arkansas resident Charles Thornton, who agreed to set up a station in Conway, Arkansas, with CMC providing part of the financing. Pursuant to this agreement, Thornton formed Telecompo of Arkansas. CMC then purchased two computers and allied items and sold them for $19,936.68 to the appellee, Worthen Bank, whose leasing agent, First Arkansas Leasing Corporation (FALCO), in turn leased the equipment to Telecompo. Before agreeing to purchase and lease the equipment, the appellee required several guaranties including the individual guaranty of appellant. The appellant sent his financial statement to the appellee and then signed the lease guaranty in Dallas in his individual capacity and as an officer for CMC.
Telecompo subsequently defaulted on the lease agreement. Six months later the appellee repossessed the equipment and sixteen months after repossession the equipment was sold for $1,000.00. Meanwhile, the appellee instituted this action on the lease agreement and on trial the court found Telecompo and each of the individual guarantors jointly and severally liable for the amount of the remaining lease payments minus the $1,000.00 received from the sale.
The trial court found jurisdiction over the appellant based on our long-arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979), which states that a trial court may exercise personal jurisdiction over a person as to a cause of action “arising from the person’s . . . transacting any business in this State. ...” The appellant’s first argument on appeal is that he did not transact any business in Arkansas within the meaning of the statute and, therefore, the trial court erred in finding that it had personal jurisdiction over him. We do not agree.
It has been held that each question of jurisdiction must be decided on a case-by-case basis. Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27 (8th Cir. 1973). In Jagitsch v. Commander Aviation Corporation, 9 Ark. App. 159, 655 S.W.2d 468 (1983), this court set out the two-part analysis to be used in determining whether a trial court had jurisdiction over a nonresident defendant. First, we must decide whether the nonresident’s actions satisfy the “transacting business” requirement of our long-arm statute and, second, we must decide whether the exercise of in personam jurisdiction is consistent with due process.
The Arkansas legislature intended for the term “transacting business” to be construed “to expand jurisdiction to the modern constitutional limit.” Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651 (8th Cir. 1982); SD Leasing, Inc. v. Al Spain and Associates, Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). Using this liberal standard, we think the appellant in the instant case was “transacting business” in Arkansas within the meaning of our long-arm statute. Appellant was extensively involved with CMC as director, officer and general counsel, and CMC was directly responsible for the formation of Telecompo, the lessee corporation. Telecompo was formed in Arkansas and the appellant personally drafted its articles of incorporation and mailed them to Arkansas. CMC was also instrumental in the negotiation and execution of the lease agreement between appellee and Telecompo and the appellant’s individual guaranty was clearly required by appellee because of his extensive involvement with CMC. These same facts also indicate that the court’s exercise of personal j urisdiction was consistent with due process.
In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the United States Supreme Court stated that due process requires only that certain “minimum contacts” exist between the nonresident and the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and subs tan tial j usdce’. ” Id. at 316. The Supreme Court further discussed the minimum contacts concept in McGee v. International Life Ins. Co., 355 U.S. 220 (1957), where it held that for purposes of due process, a single contract could provide the basis for the exercise of jurisdiction over a nonresident defendant if the contract had “substantial connection with [the forum] State.”
We think that the lease agreement which appellant guaranteed clearly had substantial connection with Arkansas. In reaching this conclusion, we have considered the five factors outlined by the Eighth Circuit Court of Appeals in Aftanese v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965) and recognized by this court in Jagitsch, supra. These factors are to be considered in determining whether due process requirements have been satisfied and are listed in Jagitsch as follows:
(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.
Id. at 163.
Although appellant’s contacts with Arkansas may have been few, we find that those contacts were substantial in nature and quality. Knowing that the appellee would require his individual guaranty, the appellant sent his financial statement to the appellee in Arkansas and then signed the guaranty agreement which was contained in the lease of personal property between two Arkansas corporations, and admits that he knew the lease would be sent to the appellee in Arkansas, that the property was in Arkansas, and that the payments would be made in Arkansas. In Telerent Leasing Corp. v. Equity Associates, 245 S.E.2d 229 (N.C. Ct. App. 1978), the court held that the fact that a nonresident appellant guaranteed a debt owed to a North Carolina resident was by itself sufficient contact to withstand a due process challenge to the exercise of in personam j urisdiction over that appellant.
The remaining factors are also present in this case. The cause of action is directly related to the appellant’s signing as guarantor of an Arkansas contract, and then failing to carry out his promise to guarantee; the Arkansas courts are obviously interested in providing a forum for Arkansas citizens to resolve disputes over contracts executed in Arkansas; and considering the fact that most of the parties were residents of this state, we think the convenience of the parties was best served by the hearing of the case in Arkansas.
The appellant points out that there is no evidence that he ever entered the State of Arkansas in connection with the lease or the guaranty, but in SD Leasing, supra, the court found sufficient contacts to meet due process standards even though the defendant never physically entered the State of Arkansas. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), the Court stated that “the defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.” Id. at 297. We think that when a party personally guarantees a lease between two Arkansas corporations, he should reasonably anticipate being haled into court in Arkansas if the lease goes into default. We find that due process requirements were met in this case, and the trial court was correct in finding that it had jurisdiction over appellant.
Appellant’s second argument is that the trial court erred in finding that appellee’s disposition of the computer equipment was commercially reasonable under the applicable provisions of the Commercial Code. See Ark. Stat. Ann. § 85-9-504(3) (Supp. 1983). The lease agreement provided that upon repossession, appellee was entitled to recover from Telecompo all future rental payments less the rental or other value of the leased property. Appellant argues that the 22-month delay between the default and the disposition by sale, combined with the low sale price, made the sale commercially unreasonable. Therefore, it is argued, the court should have applied the presumption that the value of the collateral was equal to the debt, Henry v. Trickey, 9 Ark. App. 47, 653 S.W.2d 138 (1983), and should not have allowed appellee to recover the unpaid rental minus the resale price. In support, the appellant cites McMillan v. Meuser Material & Equipment Co., 260 Ark. 422, 541 S.W.2d 911 (1976), which held that a 14-month delay before a resale was commercially unreasonable under the Code.
Appellee tacitly agrees that this issue is governed by the Commercial Code and argues that it made timely, good faith efforts to resell but the equipment had become obsolete and no bids were received (except for one that was later withdrawn). The appellee distinguishes McMillan, because there the plaintiff did not attempt to resell for a year, whereas the plaintiff in the instant case began immediate efforts to resell the equipment.
There was evidence that six months of the 22-month period between default and disposition was occasioned by Telecompo’s request for a delay in repossession so that it could try to work out some arrangement with CMC. During that period both Worthen and Telecompo tried to sell the computers. After repossession, appellee Worthen made extensive efforts to sell the equipment but could not find a buyer. Appellee’s expert testified that the equipment could not be sold because (1) for this area the equipment was overpriced and cheaper computers could be found that would do the same job, (2) there was a lack of software available for new programs for these particular units, and (3) these units were cassette driven machines which were obsolete after the advent of floppy disc drives. He said appellee was lucky to get anything for the equipment.
In Thomas v. Int’l Harvester Credit Corp., 5 Ark. App. 244, 636 S.W.2d 296 (1982), we said under the evidence there the question of a commercially reasonable disposition was one of fact. We think that is true in this case also. We cannot say the trial judge’s finding was clearly against the prepon derance of the evidence and, therefore, we do not set it aside. ARCP 52(a).
Appellant’s last point presents two arguments: (1) the lease was so subsequently altered as to excuse performance, and (2) the lease is void for lack of mutuality.
The first argument is based upon the fact that two 24K memory expansions were not delivered to the lessee Tele-compo. Appellant says the plain intent of the lease was for appellee to lease this equipment and that the failure to do so constituted a material alteration of the lease that the appellant guaranteed. Moore v. First National Bank of Hot Springs, 3 Ark. App. 146, 623 S.W.2d 530 (1981), is cited as authority for holding that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him.
Appellee responds by arguing that there was no material alteration in the terms of the lease in this case. First, appellee says the failure to deliver the 24K memory equipment left the lessee with equipment that had only a 16K memory capacity, but that there was no specification anywhere in the lease that called for equipment with any certain memory capacity. Second, appellee says even if a term of the lease was altered as alleged by appellant, such an alteration could not be found material because there is no evidence that the difference between a 16K and a 24K memory capacity would have any effect on the operations of the lessee had that corporation become operative. Appellee’s computer expert so testified and also said this difference did not, in fact, affect the resale value of the equipment. Third, appellee says there was really no alteration of the lease but only a mutual mistake in failing to deliver the 24K memory equipment as invoiced to appellee’s leasing agent FALCO. The evidence does show that neither FALCO nor the lessee knew the memory capacity of the equipment until after the' lessee’s operation had failed and there is no evidence that either party agreed to accept any equipment other than that invoiced. We agree that the trial court could hold there was no material alteration in the lease for any or all of the three reasons advanced by appellee.
We think the record will also support the court’s rejection of appellant’s contention that the lease was void for lack of mutuality. The lease did exempt appellee from liability if the supplier or manufacturer failed to fill appellee’s order for the computer equipment to be leased. However, Moore v. First National Bank, supra, rejected the argument that this type provision made a lease void for lack of mutuality. Although the lease also contained an indemnity agreement, the appellee was clearly obligated to perform under the lease and the court did not err in refusing to hold the lease void for lack of mutuality.
Affirmed.
Glaze and Corbin, JJ., dissent. | [
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James R. Cooper, Judge.
The appellee purchased a used 1980 Ford Granada from the appellant on May 12,1982. The appellee, at the time of the sale, stated to the appellant’s salesman that she needed a dependable car to drive to and from work, a distance of approximately 200 miles per week. While test driving the car before purchasing it, the appellee noticed a "rumping” sound in the rear of the car, and she was assured by the appellant’s salesman that the noise could be attributed to the car’s radial tires. The appellee traded in her 1977 model Granada, receiving a $1,500.00 credit, and financed the remainder of the purchase price, $4,250.00, through Ford Motor Credit Corporation. The appellee testified that she drove the automobile back to her home, went to a service station, and was informed that the car was two quarts low on engine oil. The next day, the appellee’s daughter drove the car back to appellant to have an AM/FM radio installed. On her return trip to Maynard, the appellee’s daughter noticed a “pinging” sound in the vehicle’s engine.
On Friday, May 14, the appellee returned the car to the appellant because of her concern about this “pinging” noise. The appellant had a mechanic check the automobile, and then produced a list of needed repairs which appellant offered to make pursuant to the Limited Car Use Guarantee that appeared in the contract of sale entered into by both parties. The guarantee, in rather confusing language, stated that it applied to the car’s motor, rear end and transmission only, and called for the appellee and the appellant to equally share the costs of any parts and labor necessary to repair the automobile. The appellee, being dissatisfied with the situation, requested that the appellant return to her the 1977 Granada which she had traded. The appellant informed her that this car had been sold. The appellee then requested that her $1,500.00 credit on the trade-in be applied to another vehicle, which the appellant also refused. The appellee then left the appellant’s business, but returned the next Monday in an attempt to trade the 1980 model Granada, but testified that the appellant offered her only $4,200.00 for the car if she traded for another. After consulting with an attorney, the appellant had the attorney send a letter notifying the appellant of her revocation of acceptance of the automobile.
The appellee then filed suit on July 15,1982, seeking to enforce her revocation of acceptance and a return of the payments made by her towards the purchase of the automobile, as well as incidental and consequential damages, cost and attorney’s fees.
At trial, the appellee testified as to the various problems reported by the appellant’s mechanic when she returned the vehicle. The evidence disclosed that the car needed valve work only three days after the appellant sold the car to the appellee, needed relocation of the radiator and had various other problems which she could not recall. The jury found that the automobile which the appellant sold to the appellee was nonconforming and that such nonconformity substantially impaired the value of the automobile to the appellee, that the appellant’s revocation of acceptance occurred within a reasonable time and thus she was entitled to recover her purchase price along with her incidential damages. The appellant asserts that the trial court erred in failing to grant its request for a directed verdict. We disagree with the appellant, and affirm.
The appellant argues for reversal that a directed Verdict was proper below because the appellee failed to introduce any proof which would entitle her to revoke her acceptance of the automobile. We disagree. The appellee’s testimony about the required repairs was sufficient proof that the automobile was nonconforming pursuant to the provisions of Ark. Stat. Ann. § 85-2-608 (Add. 1961). This section of the Uniform Commercial Code provides as follows:
Revocation of acceptance in whole or in part. —(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the sellar’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.
It is clear from a reading of this Code section and the cases applying it that the nonconformity must substantially impair the value to the buyer. The question whether goods are nonconforming and whether a revocation of acceptance was given within a reasonable time are questions of fact. Dopieralla v. Ark. La. Gas Co., 255 Ark. 150, 499 S.W.2d 610 (1973); Frontier Mobile Home Sales v. Trigleth, 256 Ark. 101, 505 S.W.2d 516 (1974). It is obvious from the jury’s verdict that this question was resolved in the appellee’s favor, and our review of such decisions is controlled by the substantial evidence rule. We find substantial evidence in the testimony of the appellee, the only witness to testify at the trial below, to support the jury’s finding.
Encompassed in the appellant’s motion for a directed verdict was its argument that the Limited Car Use Guarantee, which the appellee signed, limited her recourse against the appellant in the event of a nonconformity in the automobile. We cannot agree. The guarantee may have limited the appellee’s other warranties provided for by the Uniform Commercial Code, or remedies therein for the breach of such warranties, but in no way can be construed to have foreclosed her right to revoke her acceptance within a reasonable time of discovery of a nonconformity in the automobile. As stated in Blankenship v. Northtown Ford, Inc., 420 N.E.2d 167 (Ill. App. 1981):
In this case, the evidence unequivocally demonstrated that the substantially defective nature of the vehicle clearly impaired its value to the plaintiffs and thus revocation of acceptance is appropriate even if the dealer has properly disclaimed all implied warranties.
See also, Ford Motor Credit Company v. Harper, 671 F.2d 1117 (8th Cir. 1982).
Therefore, we hold that the appellee’s agreement to limit her warranty rights under the Code did not affect her right to revoke acceptance. The trial court correctly denied the appellant’s motion for a directed verdict, and, since the jury’s verdict is supported by substantial evidence,, we affirm.
Affirmed.
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George K. Cracraft, Chief Judge.
Ray Odaware appeals from a judgment entered against him in the Lincoln County Circuit Court in favor of Robertson Aerial-AG, Inc. He contends that the trial court erred in granting a summary judgment and abused its discretion in not permitting the appellant to amend his answer on the day of trial to assert a set-off. We find no merit.
On October 8, 1981 the appellee filed an action against the appellant to recover on an open account. The appellant answered by general denial and asserted by way of set-off a claim for damages for the negligent application of herbicides to his crops which was the subject of an action pending in the circuit court of Lincoln County, assigned No. CIV 81-100. The appellant further stated in his answer that as the action was on an open account and no verified, itemized statement was attached the appellant could not adequately defend until such an account was filed. On January 9, 1982 the appellee filed an amended complaint to which it attached the requested verified, itemized statement of account. On January 26, 1982 the defendant filed an answer to the amended complaint, again generally denying the allegations of the complaint and asserting the same set-off. The appellee then propounded certain interrogatories to the appellant. One interrogatory asked him to explain why he had not paid for the services outlined in the complaint and account. In his response filed February 12, 1982 the appellant stated:
On May 28, 1980, the plaintiff flew so high that he did not get any chemicals on my beans. The plaintiff said they would make it good, but never have. Also, in the spring of 1980, the plaintiff had a plane to fall in my bean field that damaged about 8 acres of prepared ground in order to get the plane out and delayed planting. The plaintiff promised to have the damages taken care of on this also, but never has. The plaintiff has also damaged my 1980 crops due to negligent application of chemicals and has not settled with me for damages in that case.
The appellant’s claim for damages in civil action CIV 81-100 was subsequently settled and dismissed with prejudice.
The case now under review was set for trial on three or four occasions but was continued. It came up for jury trial on November 3. 1983. On the day set for the jury trial appellee moved that, as the claim pled as a set-off had been settled and dismissed with prejudice, the appellant not be allowed to mention anything about the subject matter of that suit and be limited only to the general and specific denial contained in his answer. The court then ruled that in view of the order dismissing the case with prejudice appellant would be directed not to refer to any matters that were involved in CIV 81-100.
The appellant’s counsel then responded: “We have raised in our Response to Request for Admissions and Interrogatories and informed the plaintiff on February 12, 1982 that we were raising a defense to his claim on the basis that the plaintiff had flown his plane so high that no chemical got on the soybean land and also that there had been a plane landed in the defendant’s field which had done substantial damage to the defendant’s ground and caused other damages to crops.” The appellant then moved for permission to amend his pleading to set up that set-off or in the alternative for a continuance to give him time to amend his pleadings. The trial court overruled both motions.
After the court announced its ruling that it would not permit an amendment at that late date and would exclude any testimony of a set-off as outside the scope of the pleadings appellant’s counsel stated: “Well, in that case, I don’t see that we have anything to try, and I don’t see that there is any point in going through the motion of seating a jury.” Although he refused to confess judgment he stated that if he could not ask questions tending to prove the set-off, then he took it that, “the court, in effect is granting a summary judgment because I have no defenses. And so if we go to the end of Mr. Robertson’s testimony and I have no testimony, then the court is going to grant a directed verdict at that time. So I take it, what the court has done to me, as a practical matter, is to grant a summary judgment as if it had been on a request for admissions.” He stated further that it was not necessary to put a jury and the court through a trial because the court’s ruling had left him without a defense. He stated that it had always been the appellant’s understanding that the appellee had done the work, but that it was done in an unsatisfactory manner, and he suggested that the jury be discharged and a precedent for judgment be prepared and entered. The court thereafter entered judgment for the amount sued for which was styled ’’Summary Judgment.”
The appellant first argues that the trial court erred in entering summary judgment contending that summary judgment is improper where there are issues of fact. The appellee contends that the judgment was entered by consent and therefore appellant is in no condition to complain about it.
From our review of the record we cannot conclude that the judgment of the court was either a summary one or one entered by consent. It is clear to us that as the appellant could offer no proof that appellee had not rendered the services for which it claimed payment or that the services were unsatisfactory, he merely waived his right to demand that the appellant strictly prove his account.
The appellant next contends that the trial court erred in not granting his motion to amend his pleadings to plead a set-off on the morning of trial. ARCP Rule 8(c) requires that all affirmative defenses must be contained in the response to a complaint and specifically includes as affirmative defenses failure of consideration and set-off. The purpose of the requirement of Rule 8(b) and (c) that a party state in ordinary and concise language his defenses and affirmative defenses to each claim for relief against him is to give fair notice of what the claim is and the ground on which it is based so that each party may know what issues are to be tried and be in a position to enter the trial with his proof in readiness. Reporter’s Notes to ARCP Rule 8. It is the method by which the issues are joined, enabling each party to know what issues he must be prepared to meet at the trial.
Answers to interrogatories, as well as any other information disclosed on discovery are not a pleading or a defense to a pleading. While such information may give rise to amendments to pleadings, it does not in and of itself constitute an amendment to a pleading or inject new issues into the case. The appellant does not seriously contend otherwise. He relies primarily on ARCP Rule 15(a) which permits liberal amendments to pleadings without leave of court. ARCP Rule 15(a) and the Notes indicate that amendments to pleadings should be allowed in nearly all instances without special permission from the court except where on motion of an opposing party the court determines either that prejudice would result or that disposition of the cause would be unduly delayed. In those instances the court may strike such amended pleadings or grant a continuance of the proceedings.
The appellant argues that although he did not affirmatively plead the set-off, his answers to interrogatories made the appellee fully aware of it, and that since appellee was fairly apprised prior to trial he could not have been prejudiced by the amendment. The record shows that the appellee had not prepared to defend against the set-off. The appellee had brought witnesses to the court prepared to establish the verified account, but had brought none to defend against a set-off. In the absence of a showing to the contrary we see no abuse in the court’s discretion in not requiring the appellee to go to trial and defend against an affirmative defense which had never been duly asserted.
The appellant next contends that the trial court abused its discretion in not granting a continuance upon overruling his motion to amend. It is well settled that a trial court is vested with a broad discretion in determining whether to grant a continuance and that his determination will not be overturned by this court unless that discretion has been manifestly abused. Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980); Johnson v. Coleman, 4 Ark. App. 58, 627 S.W.2d 565 (1982). A trial court has an obligation to manage and control its docket in an efficient manner. Bolden v. Carter, supra. The record shows that the case had been on file since October 18, 1981 and that appellant’s answer had been filed in its present form since January 1982. The Court commented that whatever defenses the parties had to this action had existed prior to the filing of the answer and had not been asserted. The case had been set for trial and continued several times. The trial court noted that the jury was present and had been awaiting the conclusion of the hearing in chambers and that he felt it would be an abuse of the jury to have called and dismissed the jury for nothing. Any question about the pleadings could have been resolved before the jury was called.
Under these circumstances we cannot say that there was a manifest abuse of discretion.
Affirmed.
Mayfield and Cooper, JJ., dissent. | [
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Tom Glaze, Judge.
This case involves a dispute over the ownership of stock in Master Hair Care, Inc. (MHC), which operates four Fantastic Sam’s franchises in Little Rock, North Little Rock and Jacksonville, Arkansas. Appellant, Emmett Coyne, contends he owns 50% of the stock, but appellees, Jeanne Coyne (Emmett’s sister) and Katherine Carey, argue they own all of MHC’s stock. Emmett originated this action by filing suit, alleging his (1) entitlement to 50% of MHC’s stock, and (2) right to access of the corporation’s books and financial records. He further requested a temporary injunction to restrain appellees from taking any action which would affect the parties’ respective positions or deplete corporate assets. Appellees answered and counterclaimed, denying appellant owned any MHC stock, raising several defenses and seeking both general and punitive damages for alleged wrongful acts performed by appellant. Appellant’s request for a temporary injunction was granted pending this action. The trial court appointed a special master to hear this cause, and after listening to extensive testimony, the master filed a twenty-two page report, finding in appellees’ favor, except he found appellant should receive $10,000 for certain services rendered on MHC’s behalf. Later, as a part of his decision, the chancellor adopted the master’s findings but rejected that part awarding $10,000 damages to appellant. Appellees were awarded nothing on their counterclaim.
On appeal, appellant challenges several findings made by the chancellor. However, the primary issues raised emanate from countervailing contentions made by appellant and appellees regarding what agreement, if any, the parties reached when they decided to buy the MHC stock. First, appellant argues that on March 30, 1979, he and appellees orally agreed to purchase all of MHC’s outstanding stock, and that in return for his negotiating this business deal, appellant would receive one-half of the stock. He claims that he was to manage the four Fantastic Sam’s shops in Pulaski County while Jeanne resided in Saudi Arabia and Katherine lived and operated a Fantastic Sam’s shop in Athens, Georgia. Other witnesses testified that during the time appellant negotiated the purchase of MHC, he told them he would own 50% of the business. In sum, the only testimony showing that an agreement existed entitling him to 50% of the stock was attributable either directly or indirectly to assertions to that effect made by the appellant. On the other hand, appellees both denied that appellant was to receive a 50% share of the business. They related that appellant “volunteered” to do the “running around” necessary to consummate the transaction, but he was to engage an attorney to consummate the contract. Jeanne gave her power of attorney to appellant, and he kept her informed on the developments; however, most of his contacts were with Katherine and Mr. Richard Rossie, the lawyer hired to represent appellees. Rossie testified that appellant was vague about any prospective ownership claim he might have in the business. In fact, Rossie understood appellant’s role was to act and to negotiate on appellees’ behalf. However, Rossie minimized appellant’s part in reaching the final terms agreed to by the parties. For example, appellant claimed he negotiated a reduction in the original sales price demanded by MHC’s owner, Mr. Pietrangelo, but Rossie indicated Pietrangelo reduced his original demand when he decided to sell only MHC’s stock, excluding its assets.
Sam Ross, the major stockholder in SMR Enterprises (the nationwide franchisor for Fantastic Sam’s), also testified on behalf of appellees. Having previously known and employed appellant at SMR, Ross expressed little confidence in appellant’s business acumen. Based on his experience with appellant, Ross said that he (SMR) would not have approved of the sale of MHC to appellees if he had known appellant was to be an owner; accordingly, he gained assurances from all the parties that appellant would not be involved. Ross further testified that he was told by appellant that he was not an owner.
Appellant’s claim of an agreed, one-half ownership of stock is also contradicted by appellees’ assertion that appellant agreed to pay $5,000 for only 8% of the outstanding shares — a claim appellant denies. All parties concede that on October 3,1979, appellant, Katherine and Rossie met and discussed the monies needed to operate MHC and to purchase its stock. What happened or what was said at that meeting is almost entirely in dispute. Rossie and Katherine testified that $65,000 was the down payment on the $225,000 sales price for MHC; the $160,000 balance was to be paid in forty-eight monthly payments at a rate of 11% per annum. Rossie said that he questioned what amount each party would contribute towards the $65,000 down payment. His recollection was that appellant would “put in” $5,000, Jeanne $37,500 and Katherine $22,500. Rossie then determined each party’s stock ownership accordingly, using $65,000 as the denominator and his or her invested amount as the numerator — Jeanne was to receive 57%, Katherine, 35%, and appellant, 8%. Appellant concedes that he never paid the $5,000, but he also argues that he never agreed to pay it. Appellant did sign the $160,000 note twice, once for himself and once as attorney in fact for Jeanne. Katherine signed obligating herself. Nevertheless, it is undisputed that Jeanne and Katherine advanced monies totaling the full amount of the down payment, and appellant invested nothing.
From the foregoing evidence, the special master found that appellees never agreed that appellant would receive 50% of the stock for his efforts in assisting appellees to consummate this sale transaction. The master further concluded that on October 3, 1979, appellant did agree to purchase 8% of the MHC stock, but because he never paid the $5,000, the stock purchase failed for want of consideration. See Ark. Stat. Ann. § 64-205 (Repl. 1980). The findings of a master, to the extent the court adopts them, are considered the findings of the court. Rule 52 (a) of the Arkansas Rules of Civil Procedure. It is also settled law that such findings will not be reversed unless clearly against the preponderance of the evidence. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). Here, the parties presented hopelessly conflicting testimony. The master was in a position to view the witnesses, determine their credibility and weigh their testimony. In determining the stock ownership issue, the master decided against the appellant and the chancellor deferred to the superior position of the master in adopting his findings on this point. We cannot say the chancellor was clearly wrong in doing so. See Andres v. Andres, supra.
Appellant raises other issues in this appeal, but we find none has merit. Appellant argued that appellees’ stock purchase was void because the subscription agreement was not in writing, was vague and lacked consideration and mutuality of obligation. This argument was largely bottomed upon Ark. Stat. Ann. § 64-203 (Repl. 1980), which provides that no pre-incorporation subscription is valid unless it is in writing, signed and delivered by the subscriber-purchaser. Section 64-203 simply is not applicable when, as here, there is an outright purchase of an ongoing corporation’s existing stock. Concerning appellant’s other assertions, we believe the evidence was clearly sufficient to establish the validity of appellees’ purchase of stock and to support the chancellor’s finding to this effect.
Finally, appellant urges the chancellor erred in finding that the temporary injunction was not meritoriously obtained and in refusing to accept the master’s findings that appellant was entitled to $10,000. He also alleges error in the finding that he had no standing to assert certain matters relative to MHC’s or its directors’ unlawful corporate practices and that he must pay the costs of the litigation. We believe the chancellor ruled correctly.
Of course, the court must accept the master’s findings of fact unless clearly erroneous. Rule 53 (e) (2) of the Arkansas Rules of Civil Procedure. However, the chancellor in the instant case did not actually disagree with the master’s finding that appellant was entitled to some compensation for the services he rendered in negotiating or handling matters relative to the MHC transaction. Rather, the chancellor in effect found that appellant had received remuneration for his services because he was maintained on MHC’s payroll from the time the court entered its temporary injunction on January 2, 1981, until the injunction was dissolved on March 12, 1982. During this period, appellant was paid over $20,000. Thus, the court denied the master’s recommendation to pay $10,000 for the services appellant rendered. We note that appellant had filed no bond to cover damages sustained by appellees as is required by Rule 65 of the Arkansas Rules of Civil Procedure. Rule 65 (a) (2) provides no such preliminary injunction or restraining order shall be effective until the party obtaining the injunction files his bonds with the clerk, together with good and sufficient securities to be approved by the clerk, upon condition that the party giving the bond pay to the party enjoined such damages as he may sustain if it is finally decided that the injunction ought not to have been granted. Here, both parties recognized and followed the court’s temporary injunction even though no bond was filed. In relevant part, the court’s injunction restrained the parties from taking any action affecting their respective salaries. Accordingly, the appellant continued to receive $400 per week until the court dissolved its temporary injunction. Although appellant contended otherwise, the court found that he was not a MHC stockholder, and in so finding, the chancellor decided no injunction should have been granted. As noted previously, we agree with the chancellor’s findings and decision.
Based upon the findings adopted and made by the chancellor, we must conclude that he was correct in deciding that appellant had no standing to challenge the corporate practices conducted by appellees. Nor do we think the chancellor erred in rejecting the master’s findings relative to the $10,000 award and in holding him liable for the costs of this litigation. Therefore, we affirm the trial court’s decree in all respects.
Affirmed.
The installment payments on the $ 160,000 note were paid from corporate funds; therefore, the appellees were the only ones who invested personal funds in this business venture. | [
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Tom Glaze, Judge.
This case emanates from the chancellor’s granting a $45,065 judgment against appellants, Bobby and Delta Hanna, who are husband and wife. The judgment was based on a written commodity agreement between appellee and appellant Bobby Hanna. Although Delta was not a party to the agreement, the trial judge declared the judgment a lien on her farm land and bank accounts because she assisted Bobby in wrongfully hindering and defrauding his creditors — in this case, the appellee. On appeal, appellants argue that the evidence does not support the court’s (1) granting the judgment, or (2) imposing the judgment lien against Delta’s property. Regarding appellants’ attack challenging the court’s award of the j udgment, we find the evidence clearly supports it; and we afirm that part of the trial judge’s decision.
The thrust of appellants’ first argument is that the extent of Bobby’s underlying indebtedness was at most $5,000, and not the $45,065 amount found by the chancellor. The undisputed evidence reflects that on September 29, 1980, appellee and Bobby signed a commodity agreement under which Bobby commenced trading soybeans futures through his broker, the appellee. During the following two month period, Bobby successfully traded in the soybeans market, accumulating sufficient gains to enable him to withdraw $20,000 from his trading account. Matters changed in early December, 1980, when the soybeans market began to decline. As a result, appellee, acting under the terms of the parties commodity agreement, notified Bobby on December 8 that he would be required to advance an additional margin deposit in order to continue trading. At this point, we note that the parties agreed if appellee had removed Bobby from the market on December 8, 1980, his loss would have been $5,000 or less. However, because appellee did not withdraw Bobby from the market until December 10, 1980, his loss increased drastically to $45,065, the judgment amount ultimately granted by the chancellor.
The chancellor awarded $45,065 based on appellee’s testimony that he left Bobby’s account open until December 10 because Bobby stated as late as December 9 that he wanted to stay in the market as long as he could. When Bobby subsequently failed to advance the required additional margin deposit the appellee, per the parties’ agreement, elected to terminate Bobby’s account. On this point, Bobby admitted telling appellee on December 8, “I want to stay in as long as I have . . . money and then take me out.” These instructions, Bobby contends, sufficiently apprised appellee so that he should have closed Bobby’s account on the day they were given, i.e., December 8. Appellee rebutted Bobby’s testimony, stating that he never agreed to leave Bobby in the market for as long as he had credit; nor did he agree to take Bobby out of the market on December 8. The chancellor was in a superior position to determine the credibility of the witnesses on this crucial but conflicting factual issue, and we defer to the judge’s finding on this point, viz., that appellee, acting pursuant to the parties’ agreement, reasonably and expeditiously closed Bobby’s account on December 10, when his loss was fixed at the $45,065 amount. See Burns v. Lucich, 6 Ark. App. 37, 638 S.W.2d 263 (1982); Rule 52 (a), ARCP.
Although we agree that appellee is entitled to the $45,065 judgment against Bobby Hanna, we do not agree the judgment should be a lien against his wife’s property. In imposing such a lien, the chancellor found that in 1974 Bobby had quitclaimed his interest in certain property to his wife, which left Bobby without assets and served as a hindrance and fraud on his subsequent creditors.
The sequence of events the chancellor relied upon began in January, 1972. At that time, Delta Hanna owned a farm in Poinsett County which she had purchased with $5,000 she inherited from her father. She sold this farm and used the proceeds to purchase land in Craighead County in 1974. When this sale was closed, the property was initially deeded to both Bobby and Delta Hanna. Six days after the sale closed, Bobby quitclaimed his interest in the property to Delta because she had expressed that she was the sole owner. In 1979, Delta sold the Craighead County farm and purchased the land which is the subject of controversy, and the deed reflects title held in Delta’s name only. Eight months after purchasing the subject property, Bobby and Delta borrowed $80,000, and a mortgage was placed against the property, naming both Bobby and Delta as mortgagors. Since this property was purchased in 1979, Bobby and the appellants’ two children have farmed it, and all proceeds, including rents, have been placed in Delta’s account. It is undisputed that Bobby wrote checks on his wife’s account.
From the foregoing evidence, the chancellor held that Bobby and Delta Hanna hindered and delayed Bobby’s creditors because he had, in 1974, quitclaimed his interests in the Craighead County property to Delta, leaving himself with no assets. Considering that conveyance and the other factors cited, the chancellor imposed a lien on Delta’s land and bank account even though appellee’s judgment was based qn an agreement entered into solely with Bobby and which did not take effect until after September 29, 1980.
Upon imposing such a lien, the chancellor relied on Ark. Stat. Ann. § 68-1302 (Repl. 1979), which provides:
Every conveyance or assignment, in writing or other - wise, of any estate or interest in lands, or in goods and chattels, or things in action, or of any rents issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, and every bond, suit, judgment, decree or execution, made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.
Section 68-1302 has been construed on several occasions, and in Kelker v. Hendricks, 228 Ark. 222, 306 S.W.2d 691 (1957), the Supreme Court recounted the following established rule:
In Driggs & Co.’s Bank v. Norwood, [50 Ark. 42, 6 S.W. 323 (1887)], we held that when an embarrassed debtor makes a voluntary conveyance of his property, his indebtedness makes a presumption of fraud against existing creditors, but a voluntary conveyance by a person in debt is not per se fraudulent as to his subsequent creditors; and, to impeach such conveyance the subsequent creditors must prove actual or inten - tional fraud.
Id. at 228, 306 S.W.2d at 692 (emphasis supplied).
In the early case of May v. State National Bank, 59 Ark. 614, 28 S.W. 431 (1894), the Supreme Court, considering the rule against fraudulent conveyances, limited its application, stating:
[T]he courts will properly refuse to interfere with such conveyances in behalf of subsequent creditors when they are not merely colorable, and have been long acquiesced in; or when the length of time elapsing between the conveyance and the creation of the debt, taken in connection with other circumstances in proof, is sufficient to raise a belief that the plaintiff was not injured or defrauded by the conveyance. Each case must depend upon its own surrounding circumstances.
Id. at 625, 28 S.W. at 434 (emphasis supplied). See also, Slayden -Kirksey Woolen Mills v. Anderson, 66 Ark. 419, 50 S.W 994 (1899), wherein the Court recognized the rule announced in May, and noted that in equity, a wife’s lands would be treated as the husband’s property and subject to his debts, whether such debts existed at the time such land was purchased or were contracted shortly afterwards.
Of course, in the instant case, Bobby’s indebtedness to appellee did not exist at the time of the 1974 conveyance; nor was it contracted shortly afterwards. Instead, Bobby’s indebtedness arose over six years after his earlier conveyance to his wife. That conveyance (and all subsequent conveyances) were recorded and reflected Delta as title holder when the appellee contracted with Bobby. In addition, there is no evidence that Bobby’s quitclaiming any interest he might have had in the Craighead County property caused him to be insolvent at that time, nor does it appear from the record that he was insolvent at the time he contracted with the appellee.
An intent to defraud a subsequent creditor must be shown before a voluntary conveyance will be avoided. See May v. State National Bank, supra. Such a subsequent creditor must prove fraudulent intent by evidence which is clear, cogent and convincing. See United States v. Johnston, 245 F. Supp. 433 (W.D. Ark. 1954). From our review of the evidence, we find the trial j udge clearly misapplied § 68-1302 to the facts at bar, and in this respect, we reverse.
Affirmed in part and reversed in part.
Cracraft and Cloninger, JJ., agree.
A third issue involving the award of attorney’s fees was briefed, but appellee conceded error on this point. We agree the fees should not have been awarded, and we reverse on that issue without further discussion. | [
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Lawson Cloninger, Judge.
Richard D. Snyder, as administrator of his father’s estate, appeals from an order of the Probate Court of Sebastian County whch allowed a claim against the estate filed by the appellee, Dorothy Snyder. We think the court was correct in allowing the claim and affirm.
The appellee and the appellant’s father, Dan E. Snyder, were married in October of 1970, and divorced in January of 1973. At the time of their divorce, the couple owned a residence in Fort Smith, Arkansas. The divorce decree recited that:
[T]he use and occupancy of said property should be awarded to the plaintiff [Dorothy Snyder] and defendant [Dan Snyder] required to pay the balance owed Peoples Federal Savings & Loan Association on said property, and plaintiff should be required to pay the improvement loans thereon.
The divorce decree then ordered that “. . . plaintiff [Dorothy Snyder] make the improvement loan payments and the defendant [Dan Snyder] make the mortgage payments. . . ”
Dan Snyder made the mortgage payments until his death in 1982. The appellee then filed a claim against the estate of Mr. Snyder for $4,062.88, the balance of the mortgage. The appellant filed an objection to this claim alleging that his father’s liability under the divorce decree terminated upon his death. After a hearing, the court allowed the claim and ordered the appellant to pay it.
On appeal, the appellant argues that the mortgage payments made by Mr. Snyder were in essence alimony payments because they were made “at regular intervals for support from year-to-year.” The appellant points out that no other “alimony” award was made to the appellee. The appellant then cites the well-established general rule that alimony continues only during the joint lives of the parties and therefore cannot be recovered from a spouse’s estate. Brown v. Brown, 38 Ark. 324 (1881).
The appellant contends that requiring the estate to pay the balance of the mortgage, in essence, is requiring Mr. Snyder to pay “a specific sum of money as alimony.” The appellant cites Birnstill v. Birnstill, 218 Ark. 130, 234 S.W.2d 757 (1950), which held that a court should not decree a certain and specific sum of money as alimony because alimony is a “continuous allotment of sums, payable at regular intervals, for. . . support from year to year. . . ” Id. at 131 (quoting Brown, supra).
Finally, the appellant argues that it would be inequitable to allow the appellee’s claim because Mr. Snyder had already paid a considerable amount on the mortgage and because the appellee became the sole owner of the property upon Mr. Snyder’s death.
The appellee argues that the mortgage payments should not be characterized as “alimony”. The divorce decree ordered Mr. Snyder to pay a certain and specific sum of money, that is, the balance of the mortgage. According to the appellee, this was an order to pay a debt rather than an order of support. Therefore, the trial court was correct in allowing the claim against Mr. Snyder’s estate.
This court has indicated that the characterization of installment payments made pursuant to an award in a divorce decree depends on the circumstances surrounding the award. In Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982), the chancellor awarded the wife “alimony” in the amount of $300 per month for a period of one year. The court pointed out that an “award of alimony in a gross sum payable in installments is contrary to its long established rule that alimony should not be a fixed sum but a continuing allowance payable at regular intervals.” Id. at 272. The court then concluded that even though the decree referred to the award as alimony, the payments were not an award of alimony “in gross”, when all the circumstances were considered.
It is our opinion that the trial court did not err in allowing the appellee’s claim, because we think that the provision of the divorce decree finding that Mr. Snyder should pay the balance of the mortgage, and the resulting order to make the mortgage payments, was a provision in the nature of property division rather than alimony. The surrounding circumstances support that conclusion. The mortgage payments were not referred to as alimony in the decree, and there is no indication in the decree that Mr. Snyder was ordered to make the payments for the support and maintenance of the appellee. On the contrary, it appears that the court was making an equitable property division in that it required the appellee to make payments on home improvement loans. The record is silent as to the amount of those loans. Until Mr. Snyder’s death, his continued payments on the mortgage served to increase and protect his survivorship interest in the property, and if appellee had predeceased Dan Snyder, then Mr. Snyder would have benefited from the payment of the home improvement loans by appellee. The trial court was justified in not characterizing the mortgage payments as alimony and in allowing the appellee’s claim.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
The parties to this appeal agree that on February 1, 1981, the Chancery Court of Polk County made a decision, entered of record on August 5, 1981, to dissolve the Gillham School District of Polk and Sevier Counties and restore the former Grannis and Ozark School Districts of Polk County to separate districts, leaving the Gillham School District of Sevier County. The transcript filed in this case actually starts with a decree signed and filed on October 25, 1982. This decree recites that as a result of a hearing on February 17, 1982, the court finds that the assets of the former Gillham district shall be divided by giving 58% to Gillham and 42% to Grannis-Ozark.
Several hearings were had and on September 19, 1983, a judgment was entered which held that the assets of the Gillham district at the time of dissolution were of the value of $921,400.00; that the Grannis-Ozark 42% share equaled. $386,988.00; and that 42% of the cash on hand, after the obligations for the 1980-81 school year had been paid, amounted to $20,917.12. This amount was added to the $386,988.00 but the resulting $407,905.12 was reduced by setoffs in Gillham’s favor amounting to $26, 811.83, leaving a final amount of $381,093.29 for which Grannis-Ozark was given j udgment against Gillham and against the assets held by it.
The style of this case comes from the names of parties who were school directors or patrons, but this is really an appeal by the Gillham district against the Grannis-Ozark district, and it raises three points.
Gillham first contends that the amount of the judgment against it is not supported by sufficient admissible evidence. This contention is based on the argument that the trial court did not use market value in fixing its evaluation of the assets of the former Gillham School District at $921,400.00. This figure came from an exhibit containing a statement of the “actual cash value” of the buildings and their contents belonging to the Gillham School District. This was prepared by an employee of the State Department of Education, with the assistance of the school superintendent, for use in obtaining insurance in the department’s self-insurance program for the 1981-82 school year. The employee testified as to his ten years experience fixing property values while in the insurance claims work, and as to his training in making estimates of the value of buildings. He admitted he did not hold himself out as a real estate appraiser, however, his evaluation did not include any estimate as to land value. He did have many years experience in the business of fixing the value of the kind of property involved here and gave a full explanation of how he arrived at the values shown on the exhibit introduced. We think his testimony and the exhibit were relevant under Unif. R. Evid. 401 and admissible as specialized knowledge under Unif. R. Evid. 702.
In addition, a local building contractor, Earl Hooker, testified as to the replacement cost of the buildings. The total amount of this cost was more than the value fixed in the exhibit for insurance purposes. In a letter opinion to the attorneys, the chancellor referred to other witnesses who testified as to the value of the Gillham School District property and noted that Mr. Hooker said he thought the values stated in the exhibit prepared for insurance purposes would be more accurate as to “actual” value. The chancellor said he was accepting those values and pointed out that the parties who are now the appellants here had offered no better evidence. We think it somewhat ironic for appellants to suggest on appeal that the appellees did not present admissible evidence of market value but argue that an audit report of the Legislative Joint Auditing Committee did present admissible evidence of market value. That value, fixed at $491,945.57, was referred to in the chancellor’s letter but was not accepted by him. We do not overturn his factual determination unless clearly against the preponderance of the evidence. ARCP Rule 52(a). Hegg v. Dickens, 7 Ark. App. 139, 644 S.W.2d 632 (1983).
Appellants argue that Hooker’s testimony was not admissible substantial evidence under Wesoc Corp. v. Ark. State Hwy. Commission, 257 Ark. 72, 514 S.W.2d 212 (1974), which held that a building contractor may not testify as to market value. In the first place, Hooker did not attempt to place a market value on the school buildings and, in the second place, there was no objection to Hooker’s testimony. Moreover, the cited case strongly indicates that replacement cost evidence is admissible, although in eminent domain cases at least, that is not the true measure of damage. We believe there was sufficient admisssible evidence to support the trial court’s value determination.
Another point raised by the appellant Gillham School District is that the chancellor was in error in holding that certain contracts made with teachers and other employees were Gillham’s responsibility and not the responsibility of Grannis-Ozark. The appellees call attention to the fact that these contracts were entered into on April 2, 1981, prior to the entry of the trial court’s decree dissolving the Gillham School District of Polk and Sevier Counties; that the contracts were approved by the directors of the Gillham district; and that all the students involved were in school in Gillham throughout the 1981 school year.
Appellants argue that appellees are liable on these contracts under an agency theory and also under the authority of Ark. Stat. Ann. § 80-422 (Repl. 1980) which provides that “any new district which is created, or district to which new territory is annexed shall succeed to the property of the district dissolved, and become liable for its contracts and debts. ...”
We agree, however, with the appellees who say there is no evidence of any agency relationship. See Hinson v. Culberson-Stowers Chev., Inc., 244 Ark. 853, 427 S.W.2d 539 (1968). We also agree that the statute relied upon by appellants would not place any liability for these contracts upon the appellees until the dissolution of the Gillham district and the creation of the new districts. This was not done until the end of the 1981 school year. Furthermore, ARCP Rule 58 provides that a judgment or decree is effective only when it is entered by filing with the clerk as provided by ARCP Rule 79. In this case that did not occur until August 5, 1981, which was after the end of the 1981 school year.
The third point raised by appellants is that the court erred in not granting appellants’ motion for a setoff in the amount of $47,010.00, based upon taxes collected by appel-lees which should have gone to appellants.
This point is both legally and mathematically complicated. Involved is the fact that school districts are allowed by statute to receive a 40% “pull back” of local taxes before June 30, which is the end of the school year. As explained by witnesses in this case, taxes are paid by the taxpayers from February 15 through October 10. The law allows 40% of this money to be received, or perhaps pledged, by the school districts during the current school year and the other 60% is not received until after June 30, and perhaps not until after October 10th.
We think the evidence in this case clearly shows that the amount collected in 1981 for school taxes by Polk and Sevier Counties was the sum of $122,588.22. During the period of January 1 through June 30 of 1981 the Gillham School District received or was entitled to receive 40% of that amount in pull-back funds for use in the school year that ended on June 30, 1981. After that date the 1981 school tax money collected by those counties should go to the districts according to the new district alignment. Forty percent of $122,588.22 is $49,035.28. The original Gillham district was entitled to that amount. Sixty percent of $122,588.22 is $73,552.93. This amount belonged to the new districts in the ratio of 58% to Gillham and 42% to Grannis-Ozark. Forty-two percent of $73,552.93 is $30,892.23. However, the evidence clearly shows that Grannis-Ozark was paid $44,794.10 from 1981 school tax money put into reserve by the County Courts of Polk and Sevier Counties. Since Grannis-Ozark was entitled to only $30,892.23, the excess of $13,901.87 should have been allowed as a setoff to Gillham. This would reduce the $381,093.29 judgment of Grannis-Ozark to $367,191.42. On appeal, chancery cases are tried de novo and the appellate court renders a decree upon the record made in the trial court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). Under the law as we view it and based upon facts that are not in dispute, we reduce the appellee’s judgment to $367,191.42 and it is affirmed as modified.
Cloninger and Corbin, JJ., agree. | [
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JAMES R. Cooper, Judge.
The appellee in this workers’ compensation case was employed by the appellant as a nurse’s assistant. Her duties required her to care for patients in their homes. She was compensated according to the time she actually spent in each patient’s home. She used her own vehicle to travel to the homes but she received no wages for the time spent travelling and was not reimbursed for travel expenses. On April 21, 1994, the appellee was injured in an automobile accident while en route from the appellant’s offices to the home of her first patient of the day. The appellee filed a claim for workers’ compensation benefits and, on stipulated facts, the Commission held that the appellee’s accident constituted a compensable injury under the Arkansas workers’ compensation law as amended by Act 796 of 1993. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in concluding that the appellee was injured at a time when employment services were being performed.
Act 796 of 1993 made sweeping changes to the Arkansas workers’ compensation law. Among those changes was the redefinition of “compensable injury” so as to exclude injury which was inflicted on the employee at a time when employment services were not being performed. Ark. Code Ann. § 11 -9-102(5) (B) (iii) (Repl. 1996). In the case at bar, the Commission reasoned that because the appellee’s duties necessarily involved travel exceeding travel to and from a regular place of employment, the appellee was performing employment services at the time of her accident.
This is a case of first impression concerning the meaning of “performing employment services” under § 11-9-102(5) (B)(iii). Arkansas Code Annotated § 11-9-1001 (Repl. 1996) provides that:
The Seventy-Ninth General Assembly realizes that the Arkansas workers’ compensation statutes must be revised and amended from time to time. Unfortunately, many of the changes made by this act were necessary because administrative law judges, the Workers’ Compensation Commission, and the Arkansas courts have continually broadened the scope and eroded the purpose of the workers’ compensation statutes of this state. The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of workers’ compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
The legislature also changed the law so as to require the Commission and the courts to construe the Act “strictly,” Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996), rather than “liberally in accordance with the chapter’s remedial purposes” as was the law prior to the 1993 amendment.
The Workers’ Compensation Commission is an administrative agency, Ward School Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977), and, as a general rule, reviewing courts recognize that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than are courts to determine and analyze legal issues affecting their agencies. Arkansas Dept. of Human Services v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); see Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). Therefore, while not conclusive, the interpretation of a statute by an administrative agency is highly persuasive. Technical Services of Arkansas, Inc., v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). We are persuaded by the Commission’s reasoning in the case at bar.
In reaching its conclusion, the Commission reasoned that, because traveling was an inherent and necessary incident of the appellee’s required employment activity, the appellee was performing employment services while en route from her employer’s office to the patient’s home. We agree. Although we recognize that the appellee was not direcdy compensated for driving to patients’ homes, the payment of compensation is not conclusive to the question of whether employment services are being performed. For example, many workers, such as salesmen, are paid on the basis of commissions, but it is abundandy clear that a salesman who is attempting to make a sale is performing an employment service without regard to whether his attempt is successful.
It is likewise clear that delivering nursing services to patients at their homes is the raison d’etre of the appellant’s business, and that traveling to patients’ homes is an essential component of that service. Whatever “performing employment services” may mean in the context of Ark. Code Ann. § 11 — 9—102(5)(B)(iii), it must include the performance of those functions which are essential to the success of the enterprise in which the employer is engaged. Consequently, we hold that the Commission did not err in concluding that the appellee was performing employment services while en route from the employer’s office to the patient’s home.
Affirmed.
Mayfield, Rogers, and Neal, JJ., agree.
Jennings, C.J., and Stroud, J., dissent. | [
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Brian S. Miller, Judge.
Appellant Antonio Epps was convicted in Pulaski County Circuit Court for possessing cocaine with intent to deliver, simultaneously possessing drugs and firearms, possessing marijuana, second offense, and being a felon in possession of a firearm. Epps contends that, because the State failed to prove that he had a prior drug possession conviction and a prior felony conviction, the trial court erred in denying his motion to dismiss the charge of possession of marijuana, second offense, and the charge of being a felon in possession of a firearm. We affirm Epps’s conviction for possessing marijuana, second offense, and we reverse and dismiss his felon in possession of a firearm conviction.
Officers with the Little Rock Police Department stopped Epps’s Chevy Suburban on June 16, 2005, and recovered marijuana, cocaine, and a .32 caliber handgun from the vehicle. Epps was charged with possession of cocaine with intent to deliver, simultaneous possession of drugs and firearms, possession of marijuana, second offense, and with being a felon in possession of a firearm.
A bench trial was held on October 2, 2006. At the conclusion of the State’s case, Epps moved to dismiss the charges for possessing marijuana, second offense, and for being a felon in possession of a firearm, asserting that the State failed to prove that he had either a prior drug possession conviction or a felony conviction. The trial court denied the motion and Epps introduced no evidence in his case in chief. Epps renewed his motion to dismiss and again it was denied. The court found Epps guilty on all four counts and scheduled a sentencing hearing for November 6, 2006.
At the sentencing hearing, the court reviewed, without objection, a pre-sentencing report that indicated that Epps had a prior conviction for possessing drugs. The court then sentenced Epps to ten years’ imprisonment for possessing cocaine with intent to deliver, ten years’ imprisonment for simultaneously possessing drugs and firearms, five years’ imprisonment for possessing marijuana, second offense, and five years’ imprisonment for being a felon in possession of a firearm. The sentences were run concurrently for an aggregated sentence of ten years.
Epps’s first argument is that the trial court erred in denying his motion to dismiss the charge of possession of marijuana, second offense. A motion to dismiss in a bench trial is identical to a motion for a directed verdict in a jury trial in that it is a challenge to the sufficiency of the evidence. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). In reviewing a challenge to the sufficiency of the evidence, we will not second-guess credibility determinations made by the fact-finder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Instead, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm the conviction if there is substantial evidence to support it. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without resorting to speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991).
Epps argues that a prior drug conviction was a substantive element of the charge against him. Consequently, he asserts that the State was required to prove, during the guilt phase of the trial, that he had a prior conviction for possessing marijuana. The State argues that a prior conviction is not an element of the crime but merely enhances the sentence. It further argues that the pre-sentencing report introduced in the sentencing hearing was sufficient to prove Epps’s prior drug conviction.
In Banks v. State, 354 Ark. 404, 411, 125 S.W.3d 147, 152 (2003), the Arkansas Supreme Court held that, “even though the prior offense is an element that must be proven, it is an element properly proven during the sentencing phase of a bifurcated proceeding.” The court also held that proof of prior convictions must be introduced during the punishment phase of a bifurcated trial to protect a defendant from possible prejudice during the guilt phase. See id.
The trial court was correct in permitting the State to introduce proof of Epps’s prior convictions during the sentencing phase. During that phase, the State merely introduced the presentence report pursuant to Ark. Code Ann. § 16-97-102(2) (Repl. 2006). We decline, however, to address whether the pre-sentence report was the type of proof necessary to prove a prior conviction, because Epps neither objected to the introduction of the report, nor did he object to the sufficiency of the report to prove a prior drug conviction. He merely argued that the evidence presented in the guilt phase was insufficient to support his conviction. For these reasons, we affirm on this point.
Epps’s second argument is that the trial court erred in convicting him of being a felon in the possession of a firearm because the State introduced no evidence showing that he was a felon. We agree. Two elements must be proven to convict a defendant for being a felon in possession of a firearm. Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 (2003). First, the State must prove that the defendant owned or possessed a firearm. Id. Second, the State must prove that the defendant had a prior felony conviction. Id. The State, however, introduced no evidence that Epps had a prior felony conviction. Indeed, the State concedes error on this point. We, therefore, reverse and dismiss Epps’s conviction for this charge.
Affirmed in part; reversed and dismissed in part.
Marshall and Baker, JJ., agree. | [
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Karen R. Baker,Judge.
Appellant, Mary K.Jones, appeals the decision of the Workers’ Compensation Commission finding that she failed to prove by a preponderance of the evidence both that she is entitled to permanent disability benefits and that additional medical treatment was reasonably necessary in connection with the compensable injury. She has two arguments on appeal. First, she asserts that the Commission erred both as a matter of law and in its interpretation of the evidence when it denied her permanent disability benefits because she had no doctor’s opinion assigning her an impairment rating. Second, she asserts that the Commission erred in concluding that she is not entitled to further medical treatment. We affirm in part and reverse and remand in part.
Appellant was employed as a sales clerk at Wal-Mart in Ashdown when she sustained a compensable injury to her back after falling between two-and-one-half and three feet from a ladder on July 13, 2002. After her fall, appellant went to the emergency room complaining of an injury to her back and neck. At the emergency room, Dr. Kleinschmidt examined her. Following his examination, his written instructions included specific steps in caring for her wounds, her sprain and fracture, and her neck and back injury. She was instructed to rest and to take her medication as directed. She returned to Dr. Kleinschmidt for a follow-up visit on July 24, 2002, and he recommended physical therapy. Appellant attempted physical therapy; however, she testified that she did not continue with physical therapy due to the increased pain in her back. She saw Dr. Kleinschmidt again on July 31, 2002. He recommended an MRI of her lumbar spine. He also recommended that she remain off work for two weeks.
On August 7, 2002, at the request of Wal-Mart’s workers’ compensation representative, appellant had an appointment to see Dr. Gabbie. She was not examined by Dr. Gabbie; rather, she was examined by Norman Herbert, Dr. Gabbie’s physician assistant. Herbert listed appellant’s diagnosis as L-5 strain, prescribed medications, and recommended “work hardening” physical therapy. Herbert released her to go back to work with light-duty restrictions. Appellant did not return to work, and she was ultimately terminated by her employer. Appellant testified that she did not return to work because she was unable to perform even the light-duty work suggested by Herbert due to constant back pain.
It was not until September 2002 that appellant underwent the MRI ordered by Dr. Kleinschmidt. The MRI of the thoracic spine indicated moderate central bulging at T6-7, and the MRI of the lumbar spine indicated a ten centimeter irregular area of fluid within the adipose tissue posterior to LI through L3.
Appellant saw Dr. Weems, an orthopedic doctor, onjanuary 29, 2003, and for a follow-up visit on February 26, 2003. After her initial visit, Dr. Weems, noting that he did not have the MRI films or records to review, assessed appellant with “what sounds like chronic thoracic and lumbar back strain” and recommended therapy to provide appellant with symptomatic relief. At her follow-up visit, Dr. Weems explained to appellant that he had reviewed her MRI results and that the MRI only showed a bulging disc in the thoracic spine “which was not causing any significant foraminal or spinal stenosis” and a contusion in the soft tissue in the lumbar region. He told her that the only way she would improve would be to go to physical therapy; however, appellant explained that physical therapy was too painful and that she would not go.
Appellant contends that she has numerous injuries as a result of her July 13, 2002 fall and that she has seen various other doctors as a result. She testified that in addition to a fractured neck, diagnosed by Dr. Kleinschmidt, she has a fractured coccyx and a fractured tailbone. She testified that she has a loss of vision from fluid in her head, neck, and behind her eyes, as well as a pseudotu-mor, migraine headaches, and paralysis of the face. Appellant saw Dr. Vora on June 28, 2004, and Dr. Vora’s notes indicated that he explained to appellant that he would need to begin her evaluation with MRIs in order to determine how to treat her back pain. When the two discussed medication, appellant requested narcotics; however, Dr. Vora refused to prescribe narcotics to her. When he told appellant that a pseudotumor was not likely to be a secondary injury to a neck and back injury, appellant “did not like it and at that point she took all her papers” and decided not to go back there. When she saw Dr. Rutherford, she explained her other injuries to him, such as an ovarian cyst, a pseudotumor, hypertension, exacerbation of asthma, and swelling of her left knee, all of which she thought were the result of her fall at work; however, Dr. Rutherford did not agree that all of these conditions were a result of her fall. He stated specifically that “[c]ertainly there would be no causal relationship between pseudotumor, asthma or complex ovarian cyst.” Dr. Rutherford suggested an additional MRI of the thoracic spine; however, appellant initially declined the MRI. Once appellant decided to have the MRI in January 2006, it showed little if any change.
The Administrative Law Judge determined that appellant was not entitled to permanent disability benefits or wage-loss benefits in the absence of a physician’s report assigning a permanent impairment rating. The Administrative Law Judge also determined that since there were no treatment recommendations outstanding and it appeared that all previously suggested treatment options had been exhausted, that appellant failed to prove by a preponderance of the evidence that additional medical treatment was reasonably necessary. The Commission affirmed the decision of the Administrative Law Judge. From that decision, comes this appeal.
When reviewing a decision of the 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. Liaromatis v. Baxter County Reg’l Hosp., 95 Ark. App. 296, 236 S.W.3d 524 (2006) (citing Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
The Commission also has the duty of weighing the medical evidence as it does any other evidence. Liaromatis, 95 Ark. App. at 298, 236 S.W.3d at 526 (citing Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997)). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). When the Commission denies benefits upon finding that the claimant failed to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for relief. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). In addition, the Commission cannot arbitrarily disregard any witness’s testimony. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
For her first point on appeal, appellant argues that the Commission erred both as a matter of law and in its interpretation of the evidence when it denied her permanent disability benefits because she had no doctor’s opinion assigning her an impairment rating. In her brief, she asserts that the Commission erred when it failed to assign a percentage impairment rating, where there was no impairment rating provided by a doctor. The precise issue presented in this case is whether the Commission has the authority to assess its own impairment rating in the absence of a physician-assigned impairment rating.
The ALJ found that in the absence of a physician’s report assigning a permanent impairment rating, appellant was not entitled to permanent disability benefits. In so holding, the ALJ relied upon the case of Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 116 S.W.3d 461 (2003). However, in Wren, this court held only that Mr. Wren was not entitled to permanent disability benefits because there was no evidence of a permanent physical impairment. In Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994), this court remanded on a similar issue where the Commission failed to translate the evidence into a finding of whether the claimant proved entitlement to a rating, when it had cogent evidence before it that could support a finding of permanent, anatomical impairment.
In Johnson v. General Dynamics, 46 Ark. App. 188, 192, 878 S.W.2d 411, 412-13 (1994), we explained:
Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). An injured employee is entitled to the payment of compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Id. In the case of Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968), the supreme court stated that the Commission is “not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury.” In fact, it is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). It has also been said that nothing in our law does or should require precise evidence of the precise amount of disability. Bibler Bros. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (1979). It appears that the court in Bibler was referring to anatomical impairment and/or wage loss disability.
After reviewing the record it is clear that the Commission denied appellant benefits for permanent, partial, anatomical loss of the use of her body for the sole reason that there was no numerical rating assigned by a physician. However, the record contains evidence from which reasonable minds could conclude that appellant sustained some degree of permanent impairment.
Relying on Johnson, this court held in Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001), that the Commission was authorized to assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Specifically, this court in Polk County stated that:
The Workers’ Compensation Act of1993 directed the Commission to adopt an impairment-rating guide to be used in the assessment of anatomical impairment, and the Commission adopted the AMA Guides. Thus, in all cases where entitlement to a permanent impairment is sought by the claimant but controverted by the employer, it is the Commission’s duty to determine, using the AMA Guides, whether the claimant met his burden of proof. This being the case, we hold that the Commission can, and indeed, should, consult the AMA Guides when determining the existence and extent of permanent impairment, whether or not the relevant portions of the Guides have been offered into evidence by either party.
Polk County also contends that the Commission exceeded the scope of its authority when it assessed its own impairment rating rather than relying solely on its determination of the validity of ratings assigned by physicians. We disagree. It is the duty of the Commission to translate evidence into findings of fact. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). In the instant case, the Commission was authorized to decide which portions of the medical evidence to credit, and translate this medical evidence into a finding of permanent impairment using the AMA Guides.
Polk County, 74 Ark. App. at 164-65, 47 S.W.3d at 907-08.
In this case, as in Johnson and Polk County, the Commission was authorized to decide which portions of the medical evidence to credit and translate the medical evidence into a finding using the AMA Guides, as to whether the claimant met her burden of proof. Because the Commission denied appellant benefits solely because there was no impairment rating assigned by a physician, we reverse and remand for the Commission to determine whether appellant proved the existence and extent of a permanent impairment.
For her second point on appeal, appellant argues that the Commission erred in concluding that she is not entitled to further medical treatment. Our workers’ compensation law provides that an employer shall provide the medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § ll-9-508(a) (Supp. 2007); Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Kun-zelman, supra. What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001) (citing Gansky v. Hi Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996)).
In this case, appellant was examined by various physicians, none of whom recommended any future treatment options other than physical therapy. Although both Dr. Kleinschmidt and Dr. Weems initially recommended physical therapy for appellant, appellant refused to participate in the recommended therapy because she found it too painful. On these facts, we find that substantial evidence supports the Commission’s decision that appellant was not entitled to additional medical treatment.
For the reasons stated above, we affirm the Commission’s decision that appellant did not prove entitlement to additional medical treatment; however, we reverse and remand for the Commission to determine whether appellant proved the existence and extent of a permanent impairment.
Affirmed in part; reversed and remanded in part.
Robbins and Glover, JJ., agree. | [
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Larry D. Vaught, Judge.
Mark Wilson pled guilty to four drug-related offenses. In exchange for his plea, the State withdrew the habitual-offender enhancement that it had included in the information. Despite the fact that the State was no longer attempting to prove that Wilson was a habitual criminal, at the sentencing hearing the State introduced evidence relating to Wilson’s four prior convictions — violation of the Arkansas hot-check law, fraudulent use of a credit card, theft by receiving, and theft by deception. On appeal, Wilson argues that the trial court erred by allowing evidence of his criminal history during sentencing. We disagree and affirm.
We will reverse a sentencing decision only if the defendant can show that he was prejudiced by the erroneously admitted evidence. Buckley v. State, 341 Ark. 864, 875, 20 S.W.3d 331, 339 (2000). Evidence relevant to sentencing may be introduced at the sentencing hearing, including prior “convictions of the defendant, both felony and misdemeanor.” See Ark. Code Ann. § 16-97-103 (Repl. 2006). However, section 16-97-104 (Repl. 2006) mandates that “[p]roof of prior convictions, both felony and misdemeanor, and proof of juvenile adjudications shall follow the procedures outlined in §§ 5-4-502 — 5-4-504.” Sections 5-4-502 through -504 (Repl. 2006 and Supp. 2006) explain how prior convictions are to be considered in sentencing and what type of evidence is required to prove prior convictions.
Wilson argues that the trial court’s decision to permit the State to introduce evidence relating to his prior convictions violated Arkansas Code Annotated section 16-97-103 and that he was prejudicially denied the benefit he was promised in exchange for his plea. Specifically, he alleges that when these two statutes are read together it becomes “clear that the legislature intend (sic) that prior convictions only be submitted to the jury where there is an allegation of habitual status.” Unfortunately, the interpretation advanced by Wilson ignores the fact that section 16-97-104 specifically includes juvenile adjudications and misdemeanor convictions, which are not implicated in a habitual-offender context.
To construe the statute as applying only to sentencing in habitual-offender cases would violate our canons of statutory interpretation. As our supreme court mandates, we do not construe penal statutes so strictly as to reach absurd consequences that are contrary to legislative intent. Williams v. State, 364 Ark. 203, 208, 217 S.W.3d 817, 820 (2005). As such, we hold that the trial court’s decision to permit the introduction of evidence relating to Wilson’s criminal history during the sentencing phase of his trial is consistent with the mandates of Arkansas Code Annotated section 16-97-103.
Furthermore, contrary to Wilson’s assertion otherwise, he did receive the benefit of his plea bargain, and the court did not “go beyond the scope” of the information. At sentencing, Wilson was subjected to the normal ranges of Class A and Y felonies as opposed to the enhanced ranges designated for habitual offenders. See Ark. Code Ann. § 5-4-401(a)(l) (Repl. 2006). Wilson actually received the minimum sentences allowed on two of his four convictions and less than the maximum on the other two. Also, his sentences were ordered to run concurrently rather than consecutively, as they could have. See Ark. Code Ann. § 5-4-403 (Repl. 2006). As such, Wilson has not only failed to establish a threshold evidentiary error supporting reversal, but he has also failed to show that he suffered prejudice during sentencing.
We affirm.
Gladwin and Griffen, JJ., agree. | [
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JOHN F. Stroud, Jr., Judge.
This appeal is brought by the Attorney General of the State of Arkansas from Orders No. 52, 56, 61, 62, 63, and 64 issued by the Arkansas Public Service Commission in Docket #92-260U and results from the Commission’s refusal to compel Southwestern Bell Telephone Company (SWB) to respond to discovery propounded by the Attorney General. The Attorney General argues that, in denying his discovery requests, the Commission failed to pursue its authority regularly and abdicated its responsibility to regulate SWB. We conclude that the Commission has regularly pursued its authority and has not abused its discretion in denying the Attorney General portions of his requested discovery. The orders of the Commission are affirmed.
In Docket #92-260U, the Commission approved a stipulation entered into by SWB, the Staff of the Public Service Commission (Staff), and twenty other parties. This Stipulation resulted from an investigation conducted by Staff of SWB’s earnings that found SWB’s rates had produced earnings of $33 million in excess of SWB’s reasonable revenue requirement. The Stipulation disposed of the issues raised by the excess earnings by providing that SWB would make incremental investments of $231 million over a three-year period to upgrade its infrastructure in Arkansas in lieu of potential rate reductions. The Commission approved the Stipulation in Order No. 38, but Order No. 38 also required SWB to establish a deferred account and to file quarterly reports so that the Commission could monitor the implementation of the upgrades. Order No. 38 further provided that the Commission would on an annual basis formally review the status of the deferred account, the investments made and projected investments remaining, and the revenues generated by those investments.
SWB filed a motion to clarify the procedure for developing the investment monitoring reports and also advanced a “Plan Investment Monitoring Report” form to be adopted on an interim basis. Staff supported the motion with some proposed modifications and also recommended that SWB’s monitoring report form be adopted. The Attorney General objected to SWB’s motion, but he did not raise any specific objection to the adoption of SWB’s proposed format for the plan investment monitoring reports, nor did he propose any additions to the format or request that any additional information be included in the monitoring reports. Commission Order No. 40 adopted SWB’s motion as modified by specific provisions of Staff’s response.
On April 21, 1994, and August 19, 1994, SWB filed its; first- and second-quarter infrastructure reports, its plan investment monitoring reports, and monthly reports and work papers as required by Orders No. 38 and 40. The Attorney General then served SWB with thirty-six interrogatories, most containing five to six subparts, and thirty-one requests for production of documents that sought extensive and specific discovery of the information contained in the infrastructure reports. SWB objected to the Attorney General’s discovery requests, contending that the information sought was irrelevant and immaterial, beyond the scope of the docket, and unduly burdensome and oppressive. The Attorney General filed a motion to compel responses to his discovery and also served SWB with a second set of interrogatories and production of documents that requested detailed information about the infrastructure report filed by SWB on October 21, 1994. SWB again objected to the Attorney General’s requests, and the Attorney General moved to compel SWB to respond to his requests.
The Commission denied the Attorney General’s motions in Order No. 52. It held that the monitoring reports contain extensive information on the infrastructure investments that are available to the Attorney General, and that the Attorney General has not cited any specific reason for his extensive discovery requests nor identified a specific flaw in the reports necessitating such extensive discovery. The Commission did provide, however, that, if the Attorney General knew of a specific deficiency or problem with the monitoring reports, he should bring it to the Commission’s attention.
The Attorney General petitioned for rehearing of Order No. 52. He argued that the infrastructure reports did not reflect the information that Order No. 38 indicated would be necessary, i.e., whether the infrastructure upgrades are being implemented in a timely manner and in a manner which is most beneficial to the public. He also argued that the reports did not provide the informa tion necessary for the Commission to supervise and regulate SWB to ensure compliance with its orders. In Order No. 56, the Commission denied the Attorney General’s petition for rehearing, stating that the Attorney General has not responded to Order No. 52 by citing any specific problems or deficiency in the monitoring reports or in the implementation of the infrastructure investment. The Commission noted that the Attorney General continues to argue the inadequacy of the monitoring reports adopted by Order Nos. 38 and 40, even though he had the opportunity to raise this issue during the extensive proceedings that led to the entry of Order No. 38 or to raise the issue in a petition for rehearing of that Order.
The Attorney General appealed Orders No. 52 and 56, and during this period, the Commission entered Order No. 55. In response to this order, Staff and SWB each filed separate annual reports regarding the implementation of the Stipulation. The Commission then entered Order No. 58, which scheduled a public hearing to address and consider the proposed adjustments and modifications recommended by SWB and Staff to the Stipulation investments and infrastructure upgrades. The Attorney General sought additional discovery from SWB regarding its annual report. SWB answered some of the interrogatories and referred the Attorney General to its monthly infrastructure reports filed under seal with the Commission for the answers to others. SWB also filed separately its objections to the Attorney General’s interrogatories and requests for production of documents.
The Commission addressed the parties’ motions in Order No. 61:
1. Interrogatories No. 1(a), 2(a), 3(a), 4(a), 5(a), 6(a) and 7(a).
SWBT responded to each of these Interrogatories by referring the AG to information contained in the Monthly Infrastructure Reports....
The information sought by the AG can be obtained from the Monthly Infrastructure Reports. Pursuant to Rule 13.08(c), SWBT’s answers to the above referenced Interrogatories [are] sufficient. If the AG or the AG’s experts require guidance to interpret the contents of the Monthly Infrastructure Reports, the AG has the option to depose the appropriate employee of SWBT to explain the contents of the Reports.
2. Interrogatories No. l(b)-(g), 2(b)-(g), 3(b)-(g), 4(b)-(g), 5(b)-(g), 6(b)-(g) and 7(b)-(g), and Requests for Production No. 1, No. 2, No. 3, No. 4, No. 5, No. 6 and No. 7.
In each of the above referenced interrogatory subparts the AG requests extensive and specific information on the investments which are the subject of the interrogatory, including all payees, the amounts of each payment, dates of payments and specific equipment received for expenditures....
The information sought by the AG does not appear on its face to be relevant to the issues which are the subject of the scheduled hearing and it is questionable whether the interrogatories are designed to lead to information relevant and material to those issues. However, the information may be relevant to the Report filed on March 10, 1995, and some of the requested information may be peripherally related to the issues which are the subject of the hearing. The task of compiling the extensive and detailed information which might be responsive to the AG’s Interrogatories and Requests in one location would be burdensome and unreasonable. It is a sufficient response to allow the AG to inspect the information at the location of the information....
3. Interrogatories No. 10, No. 11, No. 12, No. 13, No. 14, No. 15, No. 16 and No. 28 and Requests for Production No. 8, No. 9, No. 10, No. 11, No. 12, No. 13 and No. 14.
In each of these Interrogatories the AG seeks “the amount of revenue that has been generated for SWB to date as a result of expenditures made pursuant to Order No. 38 ...” and other information. SWBT responded that the Quarterly Plan Investment Monitoring Reports filed with the Commission and provided to the AG track the revenue generated on a monthly basis.
Pursuant to Rule 13.08(c), SWBT has adequately responded to the Interrogatories by specifying the records in the possession of the AG from which the answers may be derived. If the AG needs to have the records interpreted or explained, the proper course of action is to depose the appropriate SWBT employee to interpret the records.
Order No. 61 denied the Attorney General’s motion to compel answers to Interrogatories No. 17 through 27 and Requests for Production No. 15 through 28. The Commission held that these interrogatories and requests for production were not relevant to the Report filed March 10, 1995, or the issues scheduled for hearing on May 9, 1995.
The Attorney General filed an additional discovery motion that complained that SWB was withholding from discovery contracts it had with certain vendors. Order No. 62 allowed the Attorney General to inspect the contracts SWB had with various vendors on the conditions stated by the vendors. The Attorney General also petitioned for rehearing of Orders No. 61 and 62, contending that these orders reflected a failure on the part of the Commission to pursue its authority regularly. Order No. 61, the Attorney General claimed, was unlawful because it held information regarding revenues generated by the Stipulation irrelevant; whereas, the Commission had said in Order No. 38 that it would review revenues annually. The Attorney General claimed that Order No. 62 was illegal because the order condoned SWB’s violation of Order No. 61 and because the Commission reversed its position from Order No. 61.
Order No. 63 denied the Attorney General’s petition for rehearing of Orders No. 61 and 62. The Commission again stated that the scheduled hearing was limited to the purpose of considering adjustments and modifications to the Stipulation investments and infrastructure upgrades and that the Attorney General’s discovery exceeded the scope of the hearing. The Commission further stated that, if the Attorney General’s discovery regarding the annual report filed by SWB leads to some legitimate issue, the Attorney General may raise that issue before the Commission in an appropriate pleading but that it would not entertain a collateral attack on Orders No. 38 and 40. The Commission concluded that the appropriate time to deal with the overall issues of revenues generated from the Stipulation investments was at the conclusion of the three-year period of implementation, when the Commission would direct an appropriate review.
The Attorney General’s petitions for rehearing of Orders No. 61, 62, and 63 were denied by the Commission in Order No. 64. The Commission held that the revenue information requested by the Attorney General was beyond the scope of the reports required by the Commission, that the Commission had allowed the Attorney General to depose a SWB employee to have the reports explained but that it did not require SWB to compile additional information, and that the Attorney General had confused discovery with an entitlement to specific answers. The Attorney General’s second notice of appeal sought reversal of Orders No. 61, 62, 63, and 64 and was consolidated with his appeal of Orders No. 52 and 56.
The Attorney General has stated one point for appeal: The Commission failed to pursue its authority regularly by abdicating its responsibility to regulate SWB. The relief he is seeking is the remand or setting aside of Orders No. 52, 56, 62, 63, and 64, and the part of Order No. 61 that found his discovery requests irrelevant. He contends that the Commission in Order No. 38 gave SWB unprecedented use of over-earned ratepayer money and has joined with SWB in thwarting all of his attempts to obtain information about the actual use of the funds. In his brief, he has made numerous arguments criticizing the Commission’s refusal to compel SWB to respond to his extensive discovery requests and disagrees with SWB’s and the Commission’s characterization of his appeal as a “discovery dispute.” From our review, however, we find that the issue presented by this appeal is whether the Commission abused its discretion in refusing to compel SWB to respond to all of the Attorney General’s discovery requests. We conclude that there has been no abuse.
Our review of appeals from the Public Service Commission is limited by the provisions of Arkansas Code Annotated § 23-2-423(c)(3), (4), and (5) (Supp. 1995), which define our standard of judicial review as determining whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. See Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 102, 877 S.W.2d 594 (1994). The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 129, 843 S.W.2d 855 (1992); Russellville Water Co. v. Arkansas Pub. Serv. Comm’n, 270 Ark. 584, 588, 606 S.W.2d 552 (1980). Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 97, 594 S.W.2d 13 (1980). To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. at 130. This Court has often said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s action. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 76, 813 S.W.2d 263 (1991).
The Attorney General begins his brief by arguing that the Commission abdicated its responsibility to regulate SWB by failing to observe its own discovery rules, disregarding Arkansas precedent, and not requiring SWB to follow its directives. Section 13 of the Commission’s Rules of Practice and Procedure governs discovery. Rule 13.01 provides that any party may obtain discovery to the extent that it is relevant and material. Rule 13.02(a) specifically provides:
Parties may obtain discovery regarding any matter, not privileged or subject to claim for a protective order pursuant to Rule 13.05 herein, which is relevant and material to the issues in the pending docket. Control of the frequency of use and extent of discovery rests in the sound discretion of the Commission.
Although the Attorney General argues that Rule 13.02 allows discovery of any issue remaining in a pending docket, Rule 13 specifi cally refers to “any matter ... which is relevant and material.” (Emphasis added.) Order No. 52, which denied the Attorney General’s discovery requests filed on August 23 and October 25, of 1994, held that the Attorney General was conducting a “fishing expedition,” and had not cited any specific reason for his extensive discovery requests. Although the Commission gave the Attorney General the opportunity to demonstrate that the information he requested was relevant and material to the infrastructure reports required by Order No. 38, the Attorney General merely repeated his conclusions that the reports do not reflect the information that Order No. 38 indicated would be necessary, i.e., whether the infrastructure upgrades are implemented in a timely manner and in a manner most beneficial to the public.
In his brief, the Attorney General argues that, without the information he seeks to discover, SWB could report any number that it chooses and, therefore, it is necessary to have the supporting documentation in order to determine whether SWB is reporting accurate information. This argument further convinces us that the Commission was correct in its conclusion that the Attorney General was pursuing a “fishing expedition.” A party to a pending action has no right to call for books, papers, and documents from his adversary merely for the purpose of entering into a “fishing examination” of them; to authorize their production there must be a substantial showing that the book, paper, or document sought contains material evidence in support of the cause of action or defense of the party asking for it. Price v. Edmonds, 231 Ark. 332, 337, 330 S.W.2d 82 (1959). It is not sufficient for a party to allege generally the materiality of the books or documents, as this would be the averment of a conclusion and permit the question of materiality to be decided by the applicant instead of by the court; nor is it sufficient to allege that such books or papers contain evidence relative to the merits of the action, but it must be made to appear wherein such relation exists. Id. at 338.
The Commission in Orders No. 38 and 40 determined the information that should be included in, and the format of, the infrastructure reports. Although the Attorney General objected to SWB’s clarification of Order No. 38, he did not propose that any additional information be required, nor did he appeal from these orders. The Commission found that neither Order No. 38 nor Order No. 40 required that the information sought by the Attorney General be included in the reports, and the Attorney General has not demonstrated that this discovery is necessary for the Commission to determine whether the upgrades are being implemented in a timely manner and in a manner most beneficial to the public.
The Attorney General also asserts that the Commission’s complete disallowance of any discovery on the issue of revenues was arbitrary and capricious. The Attorney General’s assertion, however, is contrary to the evidence. The quarterly reports filed by SWB contain revenue information. Commission Order No. 61, from which this Court quoted earlier in this opinion, found that much of the information the Attorney General sought was in SWB’s monthly infrastructure reports but allowed the Attorney General to depose a SWB witness for the purpose of having the reports explained. The Commission further held that other information did not appear to be relevant to the issues scheduled for hearing by Order No. 58 but that it may be relevant to the March 10, 1995, report and that the Attorney General could inspect this information at its location. There was also evidence that SWB incurred approximately $6,000.00 in copying costs in its attempts to comply with Order No. 61. The Attorney General has failed to demonstrate that he was denied access to any relevant and material information.
The Attorney General next argues that the Commission abused its discretion by refusing him discovery of certain vendor contracts despite the fact that SWB had failed to apply for a protective order under Commission Rule 13.05. The Attorney General contends that the Commission allowed him to discover contracts between SWB and third-party vendors in Order No. 61 but that SWT3 later failed to produce the contracts, arguing that they were subject to a contractual provision prohibiting their disclosure. SWB responded that it was prohibited by the contracts from releasing them; however, it had contacted the vendors and sought their cooperation. Thereafter, AT&T responded that it would allow the Attorney General to obtain one copy of its contracts with SWB but that the Attorney General must return the copy to AT&T at the conclusion of the hearing. The Commission, in response to the Attorney General’s motion for sanctions, entered Order No. 62, which allowed the Attorney General to review the AT&T contracts under the terms and conditions stated by AT&T and also held that the information sought by the Attorney General did not appear to be relevant to the issues at the scheduled hearing. The Attorney General contends that the Commission’s ruling in Order No. 62 is unlawful because the Commission reversed its position taken in Order No. 61; it ignored the requirements of Rule 13.05; it ignored supreme court precedent; and it ignored its responsibility to ensure compliance with its orders as required by Ark. Code Ann. § 23-l-103(a) (1987), which states in part that every public utility shall obey and comply with every order of the Commission in any matter affecting the business of any public utility and that it shall do everything necessary to secure compliance with its orders.
We find no merit to the Attorney General’s argument. Rule 13.05 outlines the procedure for obtaining a protective order and allows a party to seek a protective order “[d]uring discovery, or during later stages of a formally docketed proceeding.” Rule 13.05 also refers to Ark. Code Ann. § 23-2-316 (1987), which provides in part:
(b)(1) Whenever the commission determines it to be necessary in the interest of the public or, as to proprietary facts or trade secrets, in the interest of the utility to withhold such facts and information from the public, the commission shall do so.
(2) The commission may take such action in the nature of, but not limited to, issuing protective orders, temporarily or permanently sealing records, or making other appropriate orders to prevent or otherwise limit public disclosure of facts and information.
Clearly, under its legislative authority and internal rules, the Commission had the authority at any stage of the proceedings to find the documents were protected and limit their discovery.
The Attorney General cites Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 590, 727 S.W.2d 138 (1987), for his assertion that the Commission refused to follow supreme court precedent. Dunkin, however, concerns a defendant’s refusal to answer interrogatories in a wrongful death action and bears no relevance to the proposition that the Attorney General argues here.
The Attorney General also asserts that the Commission failed to follow its own directives in Order No. 61 by not requiring SWB to answer with specificity Interrogatories 10-16 and Requests for Production Nos. 11-14. Order No. 61 stated that SWB had adequately responded to the requests by specifying the records in the possession of the Attorney General from which the answers could be derived but allowed the Attorney General to depose a representative of SWB for the purpose of having the records interpreted or explained. The Attorney General deposed SWB witness Larry Walther and, after doing so, filed a motion to compel responses. The Attorney General claimed that, because Mr. Walther said in his deposition that the Quarterly Plan Investment Monitoring Reports reflect only a total revenue generated from the investments in all of the projects and that revenue information on individual projects does not exist, SWB had not followed the Commission’s directive. The Commission disagreed. In Order No. 63, it said:
In this Motion, the AG requests that the Commission compel Southwestern Bell Telephone Company (SWBT) to compile and create new records to respond to the AG’s Interrogatories and Requests for Production. The AG acknowledges that the Commission did not require SWBT to compile and report the revenue information the AG is requesting in Order No. 38. In essence, the AG is requesting a modification of Order No. 38 over a year after the Order was entered.
The Attorney General is now attempting to convince this Court that Order No. 61 found that all revenue information the Attorney General sought through discovery was relevant and discoverable and, therefore, when the Commission did not compel discovery of all the revenue information in Order No. 63, it was disregarding its previous order. There is no merit to this argument. Order No. 61 did not find that the Attorney General’s requested discovery was relevant or discoverable. It merely required SWB’s representative to explain the reports it had already filed. The Attorney General has not claimed that SWB refused an explanation of its reports.
The Attorney General further claims that, by declining in Orders No. 52, 56, 61, 62, 63, and 64 to require SWB to respond to his discovery requests, the Commission arbitrarily and capriciously reversed its position from that taken by it in Order No. 38. We disagree. Order No. 38 provided:
SWBT shall file in this docket a quarterly report reflecting the status and activity in the deferred account including interest thereon. The Commission will on an annual basis during the life of the Stipulation formally review the status of the deferred account, the investments made and projected investment remaining, and the revenues generated by those investments. The Commission will also make appropriate adjustments in SWBT’s rates if necessary using the deferred account. During the annual review and/or upon petition of SWB to the Commission, the Commission will consider any proposed adjustments in the amounts allocated in the Stipulation to the various projects proposed in the Stipulation. Substantial adjustments transferring money allocated from one Stipulation project to another shall only be made after an order of the Commission is entered approving the proposed adjustment.
Although the Attorney General has repeatedly claimed that the information in the reports is insufficient for the Commission to determine whether the expenditures are most beneficial to the public or whether a reallocation of funds should be ordered, he has failed to demonstrate how his broad discovery requests are relevant and material to these issues. Furthermore, the Commission has in fact required SWB to produce additional information in response to the Attorney General’s interrogatories, and it has also found that much of the information requested by the Attorney General has been provided to him in the monthly and quarterly reports.
The Attorney General argues that the Commission dramatically changed its position on the revenue issue in Order No. 63. The Attorney General states that Order No. 38 unequivocally provides that the Commission will review the revenues generated by the Stipulation investments annually but that the Commission amended this provision in Order No. 63 when it stated that “the appropriate time to deal with the overall issue of revenues generated from the stipulation investments is at the conclusion of the three-year period of the implementation, when the Commission will direct appropriate review.” The evidence is overwhelming, however, that the Commission did in fact conduct an annual review as specified by Order No. 38. The Commission states at the beginning of Order No. 58 that it had directed Staff and SWB to file reports on the implementation of the Stipulation approved in Order No. 38. From the language in Staff’s and SWB’s Stipulation reports and Order No. 58, it appears that the Commission requested these reports in order to conduct its annual review of the deferred account as provided by Order No. 38. Order No. 64 states that the Commission had conducted the annual review:
The Commission conducted the first annual review of Stipulation investments and upgrades based upon the reports filed by SWBT and Staff on March 10, 1995. There is no requirement that the Commission conduct public hearings or issue orders or findings in conjunction with the annual review of the Stipulation. However, in view of SWBT’s request to make certain modifications and adjustments in the Stipulation expenditures, the Commission did schedule a public hearing on May 9, 1995, for the limited purpose of considering the modifications and adjustments proposed in SWBT’s Report. Based upon a review of the reports filed by SWBT and Staff, the Commission determined that the proposed modification was the only issue which required further examination and the Commission scheduled a public hearing for that limited purpose.
The Attorney General argues that the Commission’s failure to hold a formal hearing on the issue of revenues is contrary to its holding in Order No. 38; however, the clear wording of Order No. 38 does not support this interpretation. Furthermore, Rule 3.02 of the Commission’s Rules of Practice and Procedure provides that “[a]ny matter before the Commission, including formal applications as defined in Section 4 of these Rules, may be adjudicated by administrative order based on the facts presented in the application without a hearing unless a hearing is required by law, the Commission, or these Rules.” The Attorney General has not argued any rule of procedure or statute that requires a hearing in this situation, and there is no evidence that the Attorney General ever requested a hearing on the issue of revenues.
In summary, we find that the sole issue presented by this appeal is whether the Commission abused its discretion in denying the Attorney General’s discovery requests. Rule 13.02(a) of the Commission’s Rules of Practice and Procedure provides that “[c]ontrol of the frequency of use and extent of discovery rests in the sound discretion of the Commission.” Based on our review of the pleadings, the briefs and oral arguments of the attorneys for the parties, and the numerous orders entered by the Commission in response to the discovery requests, we cannot say that the Commission abused its discretion.
Affirmed.
Jennings, CJ„ and Pittman, Robbins, Mayfield, and Rogers, JJ., agree.
Order No. 55 has not been abstracted nor included in the record. This Court infers from the language in Staff’s and SWB’s annual reports that Order No. 55 instructed them to file annual reports regarding the implementation of the upgrades. | [
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Tom Glaze, Judge.
Kenneth R. Johnson appeals his conviction of violating the Arkansas Omnibus DWI Act, Section 3(b). He was sentenced to forty-eight hours in the county jail, and ordered to pay a $350.00 fine and court costs of $306.75. In addition, his driver’s license was suspended for ninety days. For reversal, appellant contends the trial court erred in refusing to grant his motion to dismiss because (1) hearsay testimony was used to prove a senior operator existed in laying the foundation for the admission of breathalyzer results, and (2) the State failed to introduce a senior operator’s certificate in violation of the “best evidence” rule. We affirm.
On August 23,1983, Deputy Harry Perry observed a pickup truck driven by appellant on Highway 71 between Fayetteville and Springdale. The truck was weaving between the two northbound lanes and glancing the curb. Perry stopped the truck and smelled alcohol on appellant’s breath. Appellant’s eyes were “bloodshot” and watery, and his speech was slurred. Perry conducted a field sobriety test, arrested appellant, and took him to the Springdale Police Department. Upon arrival there, Perry read appellant the Miranda and breathalyzer test rights. Officer Charles Clark administered the breathalyzer test, and appellant measured .20. He was found guilty of driving while intoxicated by the Springdale Municipal Court, and he appealed de novo to circuit court.
During the de novo trial, both Perry and Clark were called as State’s witnesses. Clark testified that he was certified by the State Health Department to administer blood-alcohol tests. His certificate was admitted into evidence without objection. The instru ment certificate for the breathalyzer used in this case was also admitted without objection. When the State attempted to introduce the installation certificate issued to the Springdale Police Department, appellant objected, stating that a senior operator’s certificate was necessary to show a proper foundation for the admission of the installation certificate. The prosecutor then asked Clark if the Springdale Police Department had a senior operator who calibrated the machine and Clark answered in the affirmative. Again, appellant’s attorney made a hearsay objection which was overruled. The State then introduced a page of the daily log showing that the senior operator had calibrated the machine on the day appellant was administered the breathalyzer test. The court also allowed the installation certificate to be admitted over appellant’s objection.
Appellant argues the trial court erred in overruling his hearsay objection to Clark’s testimony concerning the Police Department’s senior operator, the installation certificate, and in allowing the State to prove the certification of the senior operator in violation of the “best evidence” rule. We hold the trial court should be affirmed, but we do so on a more fundamental basis, unrelated to the arguments put forth by appellant. Our review of the law reveals that there is no requirement that an installation certificate is necessary to prove the chemical analysis method used was statutorily valid. The governing statute is Ark. Stat. Ann. § 75-1031.1(c) (Supp. 1985), which provides:
The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health. The method approved may be proved by a certificate duly acknowledged by a representative of the State Board of Health and said certificate shall be admissible per se in any criminal prosecution and shall not be subject to any objections on grounds of heresay [hearsay]. Provided, however, the machine performing the chemical analysis shall have been duly certified at least once in the last three (3) months preceding arrest and the operator thereof shall have been properly trained and certified. Provided further, the person calibrating the machine and the operator of the machine shall be made available by the State for cross-examination by the defendant or his counsel of record upon reasonable notice to the prosecuting attorney. (Emphasis supplied.)
In sum, § 7 5-1031.1 (c) requires that (1) the method of testing must be approved by the Board of Health, (2) the machine must have been certified in the three months preceding arrest, and (3) the operator must have been trained and certified. Neither a senior operator’s certificate nor an installation certificate are mentioned in the statute. Simply put, § 75-1031.1 does not require proof of an installation certificate before test results may be admitted into evidence.
The State complied with the requirements in § 75-1031.1 by introducing a certificate which approved the method and the machine used by the Springdale Police Department. Specifically, it authorized the use of an Alco-Analyzer Gas Chromatograph, Model 1000, from July 1, 1983, through October 1,1983, which period covered the date of appellant’s arrest. Appellant did not object to this certificate. Next, the trial court admitted, without objection, an “Operator’s Certificate for Alcohol Analysis” issued to Charles F. Clark of the Springdale Police Department, stating that Clark was authorized to perform breath testing using a gas chromatograph 1000. Thus, all of the statutory requirements were met at this point, and the trial court was correct in admitting the test results into evidence.
While § 75-1031.1(c) does not require the State to introduce an installation certificate or a senior operator’s testimony as a prerequisite to the introduction of chemical analysis test results, it does provide that the person who calibrates the machine (namely, the senior operator) and the person who operates it will be made available for cross-examination by the defense upon reasonable notice to the prosecutor. No such notice was given in this case. The State contends the appellant invited error by his failing to request the senior operator’s presence at trial and then objecting to the operator’s absence. We agree. It is well settled that one who is responsible for error should not be heard to complain of that for which he was responsible. See Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984). Here, if appellant had desired to cross-examine the senior operator, he had the burden of notifying the prosecutor to make that operator available. He, therefore, cannot complain of the State’s failure to produce the senior operator or his certificate.
Finding that all the statutory requirements were met, and that no substantial error was committed, we affirm.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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Tom Glaze, Judge.
On December 1, 1982, appellant pled guilty to the charge of felon in possession of a firearm. The trial judge fined her $750.00 and suspended imposition of sentence for four years, subject to the condition that appellant not commit an offense punishable by imprisonment during the suspension period. On January 3, 1985, the State filed a revocation petition, alleging that appellant, on or about November 8,1984, committed the offenses of theft by receiving and contributing to the delinquency of a minor. After a revocation hearing on April 3, 1985, the trial judge found that appellant had violated the terms of her suspended imposition of sentence, and sentenced her to a four-year term in the Arkansas Department of Correction. Appellant raises four points on appeal, but we find none of them require a reversal.
In her first point, appellant argues that the evidence was not sufficient to justify the revocation. To revoke a suspended sentence, the State must prove by a preponderance of the evidence that the defendant violated a condition of her suspension. Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). On appellate review, this Court will not overturn the findings of the trial court unless they are clearly against a preponderance of the evidence. Calvin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).
In late October 1984, Sue Warner called the sheriffs office and reported several missing items: a saddle, trolling motor, and chainsaw. She later discovered and reported that some tools were missing as well. Mrs. Warner suspected that her thirteen-year-old son, Stephen, might be involved in the disappearance of the items. At the revocation hearing, several witnesses testified, indicating the appellant had sold the motor, saddle and missing tools.
Appellant first argues that the items were not stolen, that they belonged to Stephen, having passed to him by intestate succession upon his father’s death. We find no merit in this argument because one item, the saddle, undisputedly belonged to Stephen’s sister. Furthermore, the State presented testimony that Mrs. Warner — not Stephen — owned the other items, thus this factual issue was one for the trial judge to decide.
Concerning the charge of contributing to the delinquency of a minor, appellant next argues that there was no evidence proving she was an adult. That assertion is untrue since Stephen testified, without contradiction, that appellant was over twenty-one years of age. She also claims the evidence was insufficient to show she gave Stephen any contraband. Again, we disagree. According to Stephen Warner, he received liquor and marijuana from appellant in exchange for the items. He testified that appellant put the contraband in some weeds for him to retrieve. While appellant argues two witnesses contradicted Stephen’s testimony, at most, that evidence presented a question of conflicting testimony which was resolved against the appellant.
Whether there is sufficient evidence to support the trial court’s finding that appellant had violated conditions of her suspended imposition of sentence is purely a question which requires resolution of witnesses’ credibility and is one within the sound discretion of the trial court. Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984). Our study of the record reveals the trial court’s decision is not clearly against the preponderance of the evidence.
For her second point, appellant contends that the trial court erred by refusing to grant her motion for a continuance. On March 12, 1985, appellant appeared in court and requested court-appointed counsel. That request was denied, and the court set a hearing date of April 3,1985. Appellant contacted the court on March 28th or 29th, and again requested appointed counsel. It appears that the trial court appointed appellant’s attorney on April 2, 1985, one day before the revocation hearing.
Appellant cites Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975), in support of her contention that the appointment of counsel one day before trial denied her effective assistance of counsel. However, that case is distinguishable from the one here. In Wolfs, the criminal conduct itself was characterized both as “bizarre” and “inexplicable.” Here, the facts were uncomplicated and presented no unusual issue. Further, counsel in Wolfs argued that he had not been able to talk with all the witnesses before trial, that he learned just the night before that his client had psychiatric problems and that an insanity defense might be in order, and that the defendant’s relatives and other character witnesses were unavailable. In the present case, appellant’s counsel was familiar with the events which led to the charges against appellant because the month before, he had represented Ricky Mellon, who had transacted business with Stephen Warner and was charged with the same offenses as appellant. According to appellant’s counsel, Mellon’s case involved the same facts, individuals and State witnesses. There is no indication that the late appointment precluded counsel or appellant from having any witnesses present or that she was prejudiced in the presentation of her case.
Whether to grant a continuance is a matter lying within the sound discretion of the trial court and will not be overturned absent a showing of clear abuse of discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Parks v. State, 11 Ark. App. 238, 669 S.W.2d 496 (1984). It is also settled law that in the absence of a showing of prejudice, we cannot say the refusal of a continuance is error. Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1984). In the instant case, appellant simply failed to demonstrate that the court abused its discretion or that she was prejudiced by the denial of a continuance.
Appellant’s third point for reversal is that the revocation petition should be dismissed based upon collateral estoppel. A petition to revoke had been filed against Mellon, alleging that he had violated the terms of his suspension by receiving stolen property and contributing to Stephen Warner’s delinquency. Appellant argues that because the State was unsuccessful in proving the charges against Mellon, the doctrine of collateral estoppel requires that the revocation petition against her be dismissed.
Acknowledging that the revocation hearings did not involve the same parties, appellant nevertheless urges us to apply collateral estoppel to situations where the same victim is involved under identical circumstances. In support of her argument, she cites Peoples. Taylor, 117 Cal. Rptr. 70, 527 P.2d 622 (1974). In Taylor, the defendant Taylor was an accomplice to a robbery during which one of the robbers was shot and killed. Taylor’s surviving accomplice was convicted of robbery but acquitted of the murder charge. Taylor, who sat in the getaway car, argued that because the People failed to establish that his accomplices entertained the requisite malice aforethought, collateral estoppel should preclude the People from relitigating the same issue at his later murder trial. The court agreed, and concluded that the lack of identity of parties defendant did not preclude the application of the doctrine. It went on, however, to limit its holding to the circumstances of the case “where an accused’s guilt must be predicated on his vicarious liability for the acts of a previously acquitted confederate.” Id. at 79, 525 P.2d at 631.
The rule in Taylor simply is contrary to that which governs in Arkansas. Under Ark. Stat. Ann. § 41-304(2) (Repl. 1977), in any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that the other person has been acquitted. See Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982) and Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985). Therefore, we must reject appellant’s collateral estoppel argument.
Finally, appellant contends the trial court erred in denying her motion in limine to prevent the State, on cross-examination, from questioning her about her past convictions. We do not agree.
Appellant’s counsel apparently intended to put her on the stand, and accordingly, sought an advance ruling that she not be examined about her prior convictions. Appellant argued at trial that her convictions had no probative value and would have only a prejudicial effect. She argues on appeal that she did not take the stand because she did not want to risk impeachment by the State’s use of these prejudicial convictions. Appellant’s argument ignores the rule adopted by the Arkansas Supreme Court in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), and restated by this Court in Lincoln v. State, 12 Ark. App. 46, 51, 670 S.W.2d 819, 821 (1984):
In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.
There is nothing in the record to show that appellant followed either of the steps noted above, and while Simmons and Lincoln involved criminal trials, there is no reason the rule should not apply with equal force to revocation hearings. We find no error in the court’s denial of appellant’s motion.
Affirmed.
Cracraft, C.J., and Cooper, J., agree.
While appellant argues on appeal that her motion was to prohibit the State from cross-examining into the details of the convictions, the abstract of record reflects she moved to exclude any reference to the prior convictions whatsoever. | [
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John E. Jennings, Judge.
On February 23, 1985, Roger Dale Sims shot and killed Charlie Parker in Kelley’s Bar at the Morgan Interchange. Both men had been drinking; Parker, heavily. There was evidence from which the jury could find that the shooting was intentional. Sims was convicted of manslaughter and sentenced to ten years in prison.
Sims testified in his own behalf that he pulled the gun in self-defense and that it discharged accidentally. There was evidence that Parker had a reputation for violence, and that Sims knew it. On cross-examination the state asked Sims if he had been convicted of felony DWI. The court held that the probative value of the prior conviction outweighed its prejudicial effect and permitted the question. Sims admitted the conviction.
The sole issue on appeal is whether the trial court abused its discretion in admitting evidence of the prior conviction. See Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982). We find no abuse of discretion and affirm.
Ark. R. Evid. 609 provides in pertinent part:
Impeachment by evidence of conviction of crime, (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Sims’ argument is that because a prior DWI conviction has no logical relevance as to credibility, the probative value of such conviction cannot outweigh its obvious prejudicial effect. This argument overlooks the fact that the principle embodied in Rule 609(a) (1) is based on an assumption that one who commits a serious offense is, to some extent, less worthy of belief. See Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Washington v. State, supra. Offenses involving dishonesty are admissible under 609(a)(2) regardless of whether they are felonies or misdemeanors. Felony convictions may be admissible under 609(a)(1) regardless of their logical relation to dishonesty. See, e.g., Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982) (prior murder convictions admissible in murder case); Williams v. State, 6 Ark. App. 410, 644 S.W.2d 608 (1982) (prior rape case conviction admissible in rape case); Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982) (prior convictions of burglary and rape admissible in rape case).
The supreme court has held that these matters must be decided on a case by case basis. Smith v. State, supra. We have said that some of the factors that should be considered by the trial court are: (1) the impeachment value of the prior crime; (2) the date of the conviction and witness’s subsequent history; (3) the similarity between the prior conviction and the crime charged; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. Washington v. State, supra; Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982). In the case at bar, the offenses are dissimilar, the prior conviction is recent, and the credibility issue is central. We cannot say the trial court abused its discretion in admitting evidence of the prior conviction.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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D. Vaught, Judge.
In this parental-rights termination case, appellant asserts that the trial court erred in not requiring the Department of Human Services to comply with the Americans with Disabilities Act and in faffing to make a “reasonable” award of attorney’s fees. We affirm.
On April 12, 1999, K.C. was taken into DHS custody after the agency received a phone call from the child’s babysitter alleging that appellant, Patricia Ruble, the child’s mother, had abandoned the child. On April 14, 1999, the court found that probable cause existed for custody to remain with DHS. On May 14, 1999, an adjudication order was entered, finding K.C. to be dependent/ neglected, and the child remained in DHS custody until the September 6, 2000, termination hearing. On October 5, 2000, appellant’s parental rights were terminated.
During the time that K.C. was in DHS custody, appellant was provided many services by DHS. The services included counseling, parenting classes, job location and transportation assistance, and access to housing and utilities. One of the counselors who treated appellant at Community Services, Inc., noted the following in a client narrative: “I suggested that she [appellant] be sent to a residential facility for assessment, evaluation, and treatment, due to her acting out behaviors.” Also, Vicky Dennison testified that appellant was depressed and lethargic virtually all of the time and could not do anything to improve her condition.
Appellant argues that these two pieces of evidence establish her entitlement to services under the Americans with Disabilities Act, and that DHS failed to provide such services. Appellant further reasons that the failure to provide these ADA-required services resulted in a premature termination of her parental rights.
In the Americans with Disabilities Act, “disability” is defined at 42 U.S.C.A. § 12102(2), which reads:
The term “disability” means, with respect to an individual
(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual.
(b) a record of such impairment; or
(c) being regarded as having such an impairment.
Here, appellant did not notify DHS that she was disabled. Appellant did not identify for DHS (nor, this court) what type of disability she has, nor did she identify what services she needs. The scant testimony that appellant argues establishes her disability is nothing more than a lay observation, and a recommendation for further evaluation. Appellant has not demonstrated that she has a “record” of any impairment covered by the ADA or that she is “regarded” as having such an impairment.
Appellant did not establish that she is entided to ADA protection; therefore, any arguments related to requirements of the ADA are not preserved for appellate review. DHS provided appellant with meaningful access to services that would allow her a fair chance at remedying the conditions that caused the removal of her child. Once the child has been out of the home for twelve months, and the conditions that warranted removal have not been remedied by the parent, termination of parental rights is appropriate. Ark. Code Ann. § 9-27-341 (Supp. 1999).
For her second point on appeal, appellant argues that the chancellor erred by failing to award the full amount requested in attorney’s fees for work performed. Appellant’s counsel was appointed by the chancellor pursuant to Ark. Code Ann. § 9-27-316 (Repl. 1998), which requires appointment of counsel for indigent parents in termination cases. Counsel filed a motion for attorney’s fees with the chancery court on September 27, 2000. The motion requested attorney’s fees in the amount of $2,700. This amount represented nineteen hours of work at a rate of $125 per hour. Counsel’s motion had an accompanying detailed worksheet which itemized the nineteen hours of service he provided; however, counsel did not include the worksheet in the abstract or attach the worksheet as an addendum to his brief. The motion was supported by affidavits from three local attorneys attesting to the fact that $125 per hour was the customary local billing rate for attorneys. The chancellor awarded appellant attorney’s fees in the amount of $900 and directed that the fees be paid from the Van Burén County coffers.
Counsel argues that absent a showing that his $2,700 request for fees was “unreasonable,” he is entitled to the full amount requestéd. For this proposition, he cites Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 12 S.W.3d 201 (2000). However, in Baker, the supreme court examined the constitutionality of requiring counsel to represent an indigent parent pro bono in a termination case. The court recognized that the services of an attorney are a specie of property subject to Fifth and Fourteenth Amendment protection. Baker, supra; Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). In Arnold, the supreme court held that the appointment of counsel in criminal cases results in a taking of the appointed counsel’s property for which he must be justly compensated. Id. The Baker court recognized that termination cases are civil in nature, but it concluded that the principles that require payment of attorneys’ fees for representing an indigent criminal defendant are applicable to termination cases as well, and further concluded that it would be unconstitutional for the chancellor to appoint counsel to represent appellant, and then deny that counsel reasonable payment for services rendered.
It is the “reasonable payment” language of Baker, supra, that appellant relies on. However, this court traditionally leaves the “reasonable” determination to the chancellor. The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 111 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).
Appellant contends that an award of fees at a rate of $125 per hour is “reasonable” based on the/ affidavits provided to the court, and that absent a showing otherwise, any reduced award is an abuse of discretion. However, in Baker, the case upon which appellant so heavily relies, the supreme court set the fees at $55 per hour by per curiam order. See Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 408, 12 S.W.2d 200 (2000). The trial court’s $900 fee award is comparable to the “reasonable” amount awarded in Baker. Additionally, at the time of counsel’s appointment in this case, there was no statutory provision for an award of attorney’s fees in indigent dependency-neglect cases. Therefore, we find no error. Affirmed.
PITTMAN and Neal, JJ., agree.
This omission was rectified by Act 1267 of 2001. | [
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JOHN B. ROBBINS, Judge.
Appellant Terry W Hice appeals the entry of summary judgment against him by the Sebastian County Chancery Court in his suit against appellee City of Fort Smith, Arkansas, alleging wrongful termination and seeking an injunction to compel the city to reinstate his employment, to compel remittance of back pay, and for his attorney’s fees and costs. The chancery judge stated in his order granting summary judgment that Hice’s employment was at-will, subject to termination by either party; that the personnel handbook recited that Hice’s employment was at-will; that no exceptions to the at-will doctrine applied; and that the city was entitled to judgment as a matter of law. The dismissal was with prejudice. From that order comes this appeal. We affirm the entry of summary judgment.
Standard of Review — Summary Judgment
The principles governing appellate review of summary-judgment cases have been often stated by our supreme court:
The law is well settled 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) (quoting Adams v. Arthur, 333 Ark. 53, 62, 969 S.W.2d 598, 605 (1998)). Summary judgment is appropriate when the trial court finds that the allegations, taken as true, fail to state a cause of action. See, e.g., Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998); O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996); Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993). Summary judgment can be entered in appropriate circumstances in the context of a wrongful-termination case. See Skrable v. St. Vincent Infirmary, 57 Ark. App. 164, 943 S.W.2d 236 (1997).
The Employment-At-Will Doctrine
In Arkansas, the general rule is that an employer or an employee may terminate an employment relationship at will. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991); Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987). There are two basic exceptions to the at-will doctrine: (1) where an employee relies upon a personnel manual that contains an express provision against termination except for cause; and (2) where the employment agreement contains a provision that the employee will not be discharged except for cause, even if the agreement has an unspecified term. Gladden, supra; see also Ball v. Arkansas Dep’t of Community Punishment, 340 Ark. 424, 10 S.W.3d 873 (2000). An implied provision against the right to discharge will not be sufficient to invoke the exception to the at-will doctrine. Gladden, supra; see also St. Edward Mercy Med. Ctr. v. Ellison, 58 Ark. App. 100, 946 S.W.2d 726 (1997). An at-will employee can be fired for any reason, no reason, or even a morally wrong reason. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991). Thus, the question of malice on the part of the employer is irrelevant. See Ball, supra.
In Scholtes v. Signal Delivery Serv., Inc., 548 F. Supp. 487 (WD. Ark. 1982), Judge H. Franklin Waters assessed the status of Arkansas law concerning the employment-at-will doctrine. He stated:
[W]e have no hesitancy in concluding that Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.
Our supreme court considered the analysis of Judge Waters and adopted the public-policy exception in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). However, the supreme court noted that this limited exception was not meant to protect merely private or proprietary rights. Id. at 249; see also Skrable v. St. Vincent Infirmary, supra.
Facts Surrounding Termination of Mr. Hice
With this exposition on the standard of review and the relevant law on employment at will, we examine the pleadings and the essentially undisputed facts. Mr. Hice worked for the City of Fort Smith as a lead man in the water department, having been employed since October 2, 1992. He advanced from an entry-level employee to a supervisor in his tenure. On May 27, 1998, Hice was told by his supervisor to provide a urine sample for purposes of drug testing, though Hice asserted that there was no explanation of reasonable suspicion for it, and he complied in fear of termination for refusal to test. After the results of that test came back positive for marijuana, Hice was terminated effective June 1, 1998.
Hice, acknowledging his status as an at-will employee, filed suit in chancery court. He claimed that the city had violated the terms of its personnel policy handbook, which stated that an employee could be required to submit to such a test upon “reasonable suspicion,” which had to be described in writing. Hice averred that he felt obligated to submit to the drug screen in fear that he would otherwise be terminated for failure to submit per the employer’s request. Hice further claimed that he submitted to another drug screen at his own expense on May 30, 1998, three days after the earlier screen, which result was negative for any controlled substances. Hice alleged that because the city required a drug screen without probable cause for one, in violation of its own personnel handbook and in violation of his constitutional rights to be free from unreasonable searches and seizures, and because the results were wrong, then he had no recourse but to seek an injunction in chancery court. He requested the chancery court to order his reinstatement, payment of his wages dating back to termination, his attorney’s fees, and his costs.
The city responded with a motion to dismiss and, alternatively, a motion for a more definite and certain complaint. Among the defenses asserted by the city was the allegation that regardless of whether Hice was correctly or incorrectly requested to submit to a drug screen, and regardless of the outcome of that test, he was subject to the employment-at-will doctrine. The city made it clear in its pleadings that it was convinced that it had reasonable cause to drug-test Hice and that it had other valid reasons, including falsifying records and taking unauthorized possession of city property, to terminate Hice.
The city subsequendy filed a motion for summary judgment, arguing that Hice had no employment contract, that he was an at-will employee, and that the narrow exceptions to the at-will rule did not apply. The city asserted that it had valid bases for terminating Hice, though it was assuming Hice’s allegations were true for the purposes of its motion for summary judgment. Hice resisted the motion, stating that he had a right to rely on the drug policy in the employee handbook as the only means by which a drug test could be required and that he was under an implied contract preventing such arbitrary and capricious action by his employer. Hice added that being forced to drug test under these circumstances violated his constitutional rights.
The city ordinance adopting the City of Fort Smith Personnel Policy and Procedure Handbook states in pertinent part:
Neither this ordinance nor the contents of any personnel policy or future handbook that may be used by the City, nor any oral promise, shall constitute or imply an employment contract. Rather employment with the City of Fort Smith is at-will and for an indefinite period of time, capable of being terminated at any time by the employee or the City.
A similar statement in the personnel policy handbook, which was quoted and acknowledged by Hice in his brief to the trial court, unequivocally provided that the contents of the handbook could not be used, nor could any oral promise be alleged, to constitute or imply an employment contract. Indeed, the parties agree that Hice’s employment was at will. However, the personnel policy outlined the expectations of the employer with regard to conduct on the job. The personnel policy contained a section titled, “Drug-Free Workplace,” which set forth the city’s policy to maintain an environment free from the unlawful manufacture, distribution, dispensation, possession, or use or effect of a controlled substance, recognizing that such drugs impair employee judgment and have detrimental effects on productivity and safety. This section states further that violation of this policy “is absolutely prohibited and constitutes cause for termination,” and that if a supervisor or department head has reasonable suspicion that an employee is under the influence of a controlled substance, then the employee will be required to submit to testing. The policy also sets out the bases for searching the property of employees and the city. The policy does not, by its terms, limit drug screens and searches to work place accidents or impairment of employees.
The trial court considered the pleadings, the documentary evidence attached, and the briefs of counsel, and it granted summary judgment in favor of the city. Hice appeals and argues to this court, as he did to the trial court, that (1) the city was not justified in terminating his employment because it violated the provisions of the personnel handbook upon which Hice was entitled to rely; (2) the drug screen violated his Fourth Amendment right to be free from unreasonable searches; and (3) the public-policy exception to the at-will doctrine should apply.
His arguments are not persuasive. Assuming all of Hice’s allegations as true, the city was entitled to judgment as a matter of law. Both the city ordinance adopting the personnel handbook and the handbook itself clearly declare that there is no employment contract and that employment is at will. While the personnel handbook contains provisions describing methods for dismissal under certain circumstances and specifying kinds of conduct that could result in being dismissed, it does not contain provisions that an employee will not be discharged except for cause. See Mertyris v. P.A.M. Transp., Inc., 310 Ark. 132, 832 S.W.2d 823 (1992) (holding that the P.A.M. Transport manual lists certain conduct that wifi result in termination, but nothing in the manual suggests that the fist is intended to be exhaustive; thus, it would not only be unreasonable but absurd to interpret the manual as implicitly foreclosing termination for criminal acts and wrongful conduct beyond the seven violations listed in the manual); Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987) (holding that without a provision stating that an employee can be terminated only for cause, the at-will doctrine permitted termination in the absence of any reason at all; summary judgment and directed verdict in companion cases affirmed). And it is contrary to the dictates of Gladden, supra, to imply such an agreement. Because the employer was not required to have good cause to terminate Hice’s employment, the trial court did not err in entering summary judgment.
Hice also argues that his situation falls into a well-established public policy preventing a municipality from- terminating an employee unless it follows its drug-free workplace policy to the letter. A “well-established” public policy of the State must be found in our statutes or in our constitution. See Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001). Were we to assume that the employer did not follow the dictates of its handbook, we see no well-settled public policy that has been violated to bring Hice into an exception to the at-will doctrine. While an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public, see Sterling Drug, supra, we cannot discern any act here that Hice did for the good of the public. Hice was terminated for testing positive for marijuana on a drug screen, an act that does not advance public policy in Arkansas. As to Hice’s contention that his rights under the Fourth Amendment to the United States Constitution and Article 2, Section 15, of the Arkansas Constitution to be free from unreasonable searches and seizures were violated, we disagree that his claims prove a basis to move forward. The termination was not motivated by an unlawful reason or purpose. See, e.g., Qualls v. Hickory Springs Mfg. Co., 994 F.2d 505 (8th Cir. 1993); Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 515 S.E.2d 438 (1999). Hice was terminated based upon his violation of the drug-free workplace policy; he was not terminated for refusal to test, which is the more common route by which claims of violating public policy arise. See 82 Am. Jur. 2d Wrongful Discharge § 77 (1992).
We affirm.
Neal and Crabtree, JJ., agree. | [
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JOSEPHINE LINKER Hart, Judge.
At a bench trial, the circuit court convicted appellant, Jewell Polk, of the crimes of simultaneous possession of drugs and firearms, possession of a controlled substance with the intent to deliver, and theft by receiving. The court sentenced him to a total of sixteen years’ imprisonment in the Arkansas Department of Correction. On appeal, Polk contends that the evidence was insufficient to support the convictions because the State failed to establish that he possessed either the cocaine or the handgun that was found in the car he was driving. While we affirm his conviction for possession of a controlled substance with the intent to deliver, we reverse and dismiss his convictions for simultaneous possession of drugs and firearms and theft by receiving.
At 2:30 a.m. on April 22, 1999, Officer Elliot Young of the Little Rock Police Department had under surveillance a residence that was the subject of several complaints alleging that narcotics activity was taking place there. A 1994 black 530i BMW registered to Clarence Duckworth left the residence. The car stopped briefly at the Waffle House and remained there for three minutes. Young asked Officer Charles Allen of the Little Rock Police Department, who was in another vehicle, for assistance in watching the car. After Allen saw the car weaving back and forth between the lanes of traffic, he stopped the car. Allen asked Polk, the sole occupant of the car, for his driver’s license, which Allen discovered had expired. Allen cited Polk for improper lane usage and driving with an expired license and impounded the vehicle. Young inventoried the car, and he saw a piece of plastic sticking out above the driver’s sun visor. He pulled the visor down and found a plastic bag containing several pieces of an off-white, rock-like substance later analyzed as 2.804 grams of eighty-five percent cocaine base and procaine. Young also saw a lump in the rear passenger-side floor mat, and underneath the mat he found a loaded .380 semi-automatic handgun that had been reported as stolen. Young further testified that the gun was not visible without moving the floor mat. However, he agreed the lump was “something that jumped out at you.”
At the conclusion of the State’s case, Polk moved for a directed verdict, contending that there was no showing that he was “ever in actual possession of either the firearm or the drugs.” Polk noted that the cocaine was found behind the sun visor, the gun was underneath a floor mat in the rear floorboard, and the car was registered to another person. The State replied that Polk was the only person in the car and had exclusive control of the vehicle, that the plastic bag was sticking out of the sun visor, which was immediately above Polk’s head, and that the gun was found underneath the rear passenger floor mat, which, the State contended, was the most accessible place in the rear of the car to the driver. The State further noted that the lump was readily discernible by the officers. The court denied the motion.
In his own defense, Polk testified that he borrowed the car from his girlfriend, who he knew did not own the car, so that he could drive somewhere to eat. Polk stated that he drove the car two to three minutes to the Waffle House, where he remained approximately ten minutes while his hamburger and fries were cooking. He was driving back to the house when he was stopped by police. Polk testified that, at most, he was in the car for fifteen minutes. He further testified that he did not know that either a gun or drugs were in the car. Polk, however, admitted that he was a cocaine user and had been using cocaine that night at the house. He further stated that he had previously pleaded guilty to possession of cocaine and drug paraphernalia but that he did so in those cases because he knew about that cocaine and drug paraphernalia.
At the close of the evidence, Polk again moved to dismiss. Polk noted a number of factors to be considered to establish constructive possession of contraband found in a car when the vehicle is jointly occupied. He pointed out that the car was not his, that he was in the car only a short time, that he did not act suspiciously, and that the handgun was not within his immediate proximity, on the same side of the car, in plain view, on his person, or with his personal effects. Polk further noted that the officers did not testify that he was moving the visor or floor mat when he was driving.
The court denied appellant’s motion and found appellant guilty of all three counts. The court noted that while Polk was in the car only a short time, he testified that he used cocaine, and cocaine was found in the car. The court also noted that both the handgun and the cocaine were within easy access. Further, the court noted that Polk was in sole possession and control of the car.
Polk challenges the sufficiency of the evidence to support the convictions. When reviewing a denial of a challenge to the sufficiency of the evidence, we consider only the evidence that supports the judgment and affirm if that evidence is substantial. Boston v. State, 69 Ark. App. 155, 159, 12 S.W.3d 245, 248 (2000). Specifically, Polk argues that the State failed to show that he constructively possessed either cocaine or the handgun. In response, the State argues that there was substantial evidence that Polk constructively possessed the cocaine and gun because Polk was the sole occupant of the car and both items were found in areas immediately and exclusively accessible to him.
When challenging the sufficiency of the evidence regarding possession of contraband, the standard of review is as follows:
To convict one of possessing contraband, the State must show that the defendant exercised control or dominion over it. Neither exclusive nor actual, physical possession is necessary to sustain a charge. Rather, constructive possession is sufficient.
Moreover, constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy, alone, is insufficient to establish possession or joint possession. The State must establish that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband.
Stanton v. State, 344 Ark. 589, 599, 42 S.W.3d 474, 480-81 (2001)(citations omitted).
In this case, appellant was not the owner of the car, and his occupancy of the car was transitory in nature. Based on these facts, Polk’s occupancy of the car is more analogous to joint occupancy, as opposed to sole occupancy. Joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession of the contraband found in the vehicle. Mings v. State, 318 Ark. 201, 207, 884 S.W.2d 596, 600 (1994). Other factors to be considered when there is joint occupancy of a vehicle are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id.
While Polk controlled the car, he did not own it; he was in the borrowed car for a short time, well after dark. Further, none of the contraband was in plain view. Nevertheless, we conclude that there was substantial evidence that Polk constructively possessed the cocaine. Young testified that the drugs were found behind the driver’s side sun visor, just in front of where Polk was sitting, with the plastic packaging in plain view. Furthermore, Polk admitted to using cocaine at the residence he had just left and to which he was returning.
There was, however, no testimony establishing constructive possession of the handgun. The State did not present any testimony about whether the handgun was easily accessible from the driver’s seat or whether the lump in the floor mat could be seen from there. Also, there was not any testimony that during the time Polk was in the car, he entered or reached into the rear of the car. Thus, we conclude that the evidence was insufficient to support the conclusion that Polk constructively possessed the handgun.
Further, we distinguish these facts from those in Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995), in which there was substantially more evidence connecting the appellant in that case to a handgun found underneath the passenger seat of a borrowed truck. There, an officer testified that the handgun was in an area accessible to the appellant, as the truck cab was so small that anyone in the vehicle had access to it. Also, in that case the appellant exercised dominion and control of the truck, as he drove the truck from Vian, Oklahoma, to Fort Smith, Arkansas, and was the only one to drive the truck that day. Further, the appellant testified that he had “detailed” the truck prior to using it and would have noticed any contraband in it, thus permitting the jury to dismiss the possibility that the contraband was in the truck when the appellant borrowed it. Also, there was evidence that cocaine was being delivered from the truck, and an officer testified that it was common to find handguns in close proximity to drugs. Finally, the appellant in that case gave an improbable explanation regarding his presence in Fort Smith. Thus, Kilpatrick is clearly inapposite given the substantial amount of evidence presented in that case.
Therefore, because Polk constructively possessed the cocaine but not the handgun, we reverse and dismiss his convictions for simultaneous possession of drugs and firearms and theft by receiving and affirm his conviction for possession of a controlled substance with the intent to deliver.
Affirmed in part; reversed and dismissed in part.
Stroud, C. J., and Griffen, J., agree.
Bird, J., concurs.
Jennings and Crabtree, JJ., concur in part; dissent in part.
Because Polk argued below that the State failed to show constructive possession of the gun, he properly preserved for appeal his challenge to the sufficiency of the evidence to support theft by receiving, which requires proof that the defendant received, retained or disposed of the stolen property. Ark. Code Ann. § 5-36-106(a) (Repl. 1997). “Receiving” is defined as “acquiring possession, control, or title or lending on the security of the property.” Ark. Code Ann. § 5-36-106(b) (Repl. 1997). | [
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Tom Glaze, Judge.
Appellant appeals his jury conviction for possession of marijuana. He was sentenced to one year in the county jail and fined $1,000. For reversal, appellant raises seven issues.
Before discussing each issue, we briefly review the evidence. On October 10, 1982, law enforcement officers were serveilling a marijuana patch they had found near Clear Creek in Johnson County. During their surveillance, they observed the appellant picking leaves from marijuana stalks and placing them in a large paper sack. The officers subsequently arrested the appellant, who later gave a statement admitting he had picked the marijuana, but denying that he intended to sell or smoke it. Appellant stated that he found the patch while squirrel hunting. After taking some squirrels he had shot to his truck, he returned to pick the marijuana. He said that he intended to take it home “and keep it.” The officers found some dead squirrels in the appellant’s truck as well as his hunting vest in the cab.
Appellant first argues that in its discovery response, the State indicated it would introduce photographs of the marijuana and the patch but instead introduced both photographs and actual marijuana samples. In doing so, appellant contends that the State violated Rule 17.1 of the Arkansas Rules of Criminal Procedure, and that the court’s admission of the marijuana samples into evidence was error.
Rule 17.1 requires that the prosecuting attorney disclose to defense counsel, upon timely request, any material and information the prosecutor intends to use in any hearing or at trial but as the Court noted in Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978), the exclusion of such evidence is not mandatory. In Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982), this Court stated that a trial court is not required under Rule 19.7 of the Arkansas Rules of Criminal Procedure to comply with discovery procedures unless there is a likelihood that prejudice will result. Also, the party alleging error is required to demonstrate that prejudice did in fact exist. Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). In the instant case, appellant fails to show how he was prejudiced by the introduction of the marijuana into evidence. Appellant denied neither the existence of the contraband nor that he picked it and put the leaves in a sack. The State proved the existence of the marijuana both by the officers’ testimonies and by photographs of the contraband. In view of such overwhelming proof, the prejudicial impact, if any, caused by the introduction of the actual samples of marijuana was insignificant.
For similar and other reasons, we do not agree with appellant’s contention that the State’s failure to establish the chain of custody in handling the marijuana prevented its introduction at trial. Again, appellant’s possession of the marijuana was clearly shown and undenied. He was convicted only of possession of the controlled substance so the chemical analysis of the amount or weight of the substance proved of no prejudicial import. Even if appellant could argue otherwise, he made no timely objection to the introduction of the marijuana samples. Arkansas does not adhere to the “plain error rule,” and accordingly, we cannot consider such an issue for the first time on appeal. See Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983); and Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Appellant also challenges the trial court’s admission of three photographs into evidence. He argues the pictures depicted the marijuana stalks and protective wire screens, thus unfairly leading the jury to believe he manufactured marijuana. He further argues that one of these photographs was inadmissible because it did not accurately reflect the marijuana or the terrain where it was grown. This secondary argument, however, was not made below, so we are unable to address it here. Wicks, id. The law is settled that the introduction of photographs rests largely within the discretion of the trial judge and they are admissible for the purpose of describing and identifying the scene of a crime. Stewart v. State, 233 Ark. 458, 345 S.W.2d 472 (1961). This purpose was served here, and we cannot say the trial court abused its discretion in allowing the photographs into evidence, especially considering the place of the alleged offense and the manner in which it was performed. See also Tucker v. State, 3 Ark. App. 89, 622 S.W.2d 202 (1981) (wherein this Court upheld the admissibility of certain photographs, stating that under Rule 403 of the Uniform Rules of Evidence the weighing of the opposing factors lies within the sound discretion of the trial court and its decision will not be reversed absent a clear abuse of that discretion).
Appellant’s next contention is that error ensued even though the trial court sustained his objection to the prosecutor’s question to an officer, “[I]s it usual or unusual for a person to pick another person’s marijuana?” Following that ruling, the court denied appellant’s request for a mistrial, which he assigns as error here. As is oft stated, it is within the sound discretion of the trial court to deny a motion for a mistrial and such discretion will not be disturbed on appeal unless there is a showing of abuse. Parrott v. State, 246 Ark. 672, 439 S.W.2d 924 (1969). Here, the trial judge promptly agreed with appellant that the question posed to the officer was improper. Appellant did not ask for a cautionary instruction, and the judge simply did not believe the question alone justified granting a mistrial. We cannot say the trial court abused its discretion in so holding.
Finally, appellant argues the trial court erred in failing to exclude the testimony of an officer regarding the weight of the marijuana because (1) the weight included non-controlled substances such as stalks and sterilized seeds, (2) the officer was not an expert, and (3) the accuracy of the scales he used was not established. We find no merit in these arguments. The trial court instructed the jury that marijuana does not include the mature stalks, the fiber produced from the plant or the sterilized seed of the plant which is incapable of germination. More importantly, the officer testified to the weight of the sack that contained only marijuana leaves. As noted earlier, appellant was convicted of possession of marijuana, not possession with the intent to deliver. Thus, the State’s evidence of the amount or weight of marijuana did not prejudicially influence the jury to find appellant guilty of the greater offense. Nonetheless, the officer’s testimony concerning the weight of the marijuana as well as the reliability of the scales he used in determining the weight is, we believe, admissible. Undoubtedly, the objection to such testimony goes to the weight that should be given the officer’s testimony and not to its competency or admissibility. We affirm.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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Larry D. Vaught, Judge.
This is a juvenile case in which appellant argues that the juvenile court lacked jurisdiction to revoke his suspended sentence where the revocation petition was filed and heard outside the period of suspension. We find appellant’s argument to be without merit, and we affirm.
Appellant Matthew Byrd was adjudicated delinquent on July 15, 2002, after pleading guilty to the 'charge of possession of a handgun by a minor. A disposition delinquency order and an order of probation were filed the same day, placing appellant on two years’ probation subject to terms and conditions. On August 30, 2002, the State filed a petition for revocation of the probationary sentence alleging that appellant violated the terms of his probation. The trial court found that appellant had violated the terms of his probation, and it entered a probation revocation order on October 7, 2002, ordering appellant to serve ninety days in the Crittenden County Juvenile Detention Center. In addition, the order provided that the previous order of probation remain in effect and that a six-month review hearing be held on October 14, 2002.
After the October 14 hearing, the court entered another probation revocation order providing that appellant remain in detention until October 21, 2002, and setting a review hearing for October 21, 2002. A hearing was held on October 21, 2002, and the trial court entered another probation revocation order on October 22, 2002, providing that appellant be placed in detention upon discharge from St. Bernardo Hospital; a review hearing was set for October 25, 2002. After the October 25, 2002 hearing, appellant was ordered to serve ninety days in the Crittenden County Juvenile Detention Center, and he was given credit for seven days; review was set for November 15, 2002. Appellant was released from detention after the November 15, 2002 hearing. The remaining sixty-two days of detention were suspended and the previous orders of the court were continued.
On January 29, 2003, the State filed another petition to revoke appellant’s probationary sentence stemming from the July 15, 2002 adjudication of delinquency. A hearing was held on February 21, 2003. Appellant initially entered a plea of guilty, but he objected to the sentence arguing that the court was without jurisdiction to impose any additional sentence. Appellant withdrew his plea but stipulated to the facts set out in the revocation petition. The court found that appellant had violated his probation and ordered him to serve sixty-two days in the Crittenden County Juvenile Detention Center. Appellant again objected to the sentence, arguing that his sentence had been placed into execution, that the court was without jurisdiction to impose any additional sentence, and that the imposition of a new sentence would violate double jeopardy. From that order comes this appeal.
Appellant’s only issue on appeal is that the trial court lacked jurisdiction to revoke a suspended sentence of a juvenile where the revocation petition was filed and heard outside the period of suspension. He contends that: (1) pursuant to Ark. Code Ann. § 5-4-307 (Repl. 1997), a suspended sentence begins to run from the date of release from incarceration if it follows a term of imprisonment, and thus the sixty-two days of detention suspended on November 15, 2002, had expired and the trial court lost jurisdiction to revoke the suspended sentence; (2) based on Ark. Code Ann. § 5-4-309 (Supp. 2003) the State’s revocation petition was untimely because it was filed outside the period of suspension; (3) based on Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002), if a court chooses to revoke probation pursuant to Ark. Code Ann. § 9-27-339(e) (Repl. 2002) and sentence the juvenile to a deten tion facility, (even where a portion of the sentence is deferred), the sentence constitutes a disposition and deprives the court of jurisdiction to subsequently modify the sentence.
Appellant’s reliance on criminal code provisions is misplaced, because the juvenile code governs. See M.M. v. State, 350 Ark. 328, 331, 88 S.W.3d 406, 408 (2002). Arkansas Juvenile Code section 9-27-331 (c)(1) (Supp. 2003) is controlling. It provides that an order of probation shall remain in effect for an indeterminate period not to exceed two years. Under section 9-27-331(c) (2), a juvenile shall be released upon expiration of the order or upon a finding by the court that the purpose of the order has been achieved. In the present case, the order of probation had not expired and the court had not released appellant from probation. Because appellant’s probation remained in effect, the juvenile court had jurisdiction to revoke his probation pursuant to Ark. Code Ann. § 9-27-339. Further, under Ark. Code Ann. § 9-27-339(e)(3), the court had the authority upon revocation to make any disposition that could have been made at the time probation was imposed, which under Ark. Code Ann. § 9-27-330(a) could include probation and detention in a juvenile facility for an indeterminate period not to exceed ninety days.
Although Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002), which appellant cites in support of his argument, is a juvenile case, it does not support reversal. In Bailey, the appellant pled guilty to the charges of residential burglary and theft of property and was placed on probation for twelve months on April 26, 2000. The court also ordered appellant to pay restitution in an amount to be determined within ninety days of the date of the adjudication hearing. The record did not contain an order of restitution, but the parties agreed that appellant was ordered to pay $500 in restitution. The State filed a petition to revoke appellant’s probation based on an allegation of possession of a controlled substance; the State also moved to resentence appellant to make the restitution correct. Appellant pled guilty to the possession charge, and on January 17, 2001, the trial court revoked his probation and sentenced him to serve ninety days in a juvenile detention facility, with thirty days to be served and sixty days deferred. On March 28, 2001, the trial court held a subsequent hearing to address the issue of restitution, where appellant argued that the trial court was without jurisdiction pursuant to Ark. R. Civ. P. 60 to revise the amount of restitution after the original ninety-day time period had elapsed. The trial court entered an amended order of revocation requiring appellant to pay $6,785.60 in restitution.
On appeal, the supreme court reversed, holding that Ark. Code Ann. § 9-27-339 provides four alternatives for disposition upon finding a juvenile in violation of probation. The court recognized that while the trial court could have made any disposition that it could have at the time probation was imposed, the court chose to sentence appellant to serve ninety days and then over two months later held a second hearing stemming from the same petition and found that appellant’s failure to pay restitution was grounds to revoke and entered an amended order increasing restitution. Thus, the supreme court concluded that the lower court lacked the authority to commit appellant and then later make any disposition that could have been imposed at the time he was placed on probation. See also Avery v. State, 311 Ark. 391, 844 S.W.2d 364 (1993) (stating that after the juvenile court’s denial of the State’s petition for revocation, the juvenile code requires the State to file another petition for revocation and give notice to the juvenile that revocation is again being pursued before probation can be revoked).
Based on the foregoing, the juvenile court in this case had the authority to revoke appellant’s probation pursuant to a second petition to revoke and to impose any disposition available at the time probation was imposed.
Affirmed.
Hart and Bird, JJ., agree. | [
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NEAL, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission finding that the average weekly wage of the decedent was $761.42 and denying dependency death benefits to the decedent’s stepgrandson. On appeal, the appellant argues that the Commission erred in its failure to include the decedent worker’s health insurance allowance, bonus, and vacation pay in the average weekly wage calculation and that' the Commission erred in its failure to recognize a step-grandchild as a dependent entitled to workers’ compensation death benefits. We affirm the Commission.
Doyle Taylor worked as a truck driver for Lubritech. On April 18, 1997, Mr. Taylor died in a work-related accident. He was survived by his wife, Wilma Taylor, a stepson, Gerry Louis Coins, and a stepgrandson, Austin Coins. Travelers Insurance Company, appellee’s insurance carrier, contested the compensability of the death. On September 25, 1997, an Administrative Law Judge of the Workers’ Compensation Commission found the injury compen-sable. Travelers Insurance Company paid dependency death benefits to Mrs. Taylor ($667 bi-weekly) and Austin Coins ($286 bi-weekly) based on an average weekly wage calculated to be $953. Travelers later reduced the payments to $488 and $206 respectively. Travelers justified the reduction in benefits based on a decision that Mr. Taylor’s average weekly wage was actually $761.42 rather than $953. Travelers and Lubritech also argued that Austin Coins was not entitled to any benefits because he was a step-grandchild; therefore, he was not a dependent under Arkansas Code Annotated section 11-9-522 (Supp. 1999). The ALJ found that the insurance, bonus, and vacation pay were not part of the decedent’s average weekly wage and that Austin Coins was ineligible for dependency-death benefits. This decision was adopted and affirmed by the full commission on October 27, 2000.
Standard of Review
This court reviews decisions of the Arkansas Workers’ Compensation Commission to see if they are supported by substantial evidence. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. WalMart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001).
Calculation of Average Weekly Wage
Appellant’s first argument on appeal is that the Workers’ Compensation Commission erred in its failure to include the decedent worker’s health insurance allowance, bonus, and vacation pay in the average weekly wage calculation. Whether the decedent’s health insurance allowance, bonus, and vacation pay should be included in the calculation of decedent’s average weekly wage turns on whether he was a piece-rate worker. A piece-rate worker is one who is paid on the basis of the quantity of work done. Mamika v. Barca, 80 Cal. Rptr.2d 175 (1998) . Wilma Taylor testified the decedent was paid by the mile.' Lubritech presented evidence showing that decedent’s pay varied according to the miles he drove. This variance indicates decedent was paid by the actual miles driven. The evidence clearly establishes decedent’s pay was based upon the number of miles driven; therefore we hold decedent, a truck driver paid by the mile, was a piece-rate worker.
Arkansas Code Annotated section 11-9-518 (a) (2) (Repl. 1996), provides that the average weekly wage of a piece-rate worker shall be calculated as follows:
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment.
In the case at bar, both parties rely on Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990). In Tabor, hinge benefits are defined as bonuses, vacation pay, holiday pay, medical insurance, life insurance and weekly disability insurance. Id. In Tabor we held that fringe benefits are not included in the calculation of the average weekly wage of a piece-rate worker. Id. We reached this decision based on the statutory method of determining the average weekly wage of an employee working on a piece-rate basis. Under the statute, “earnings are to be divided by the number of hours required to earn the wages.” Id. In Tabor, we found that Tabor was not required to work a certain number of hours to receive her fringe benefits; therefore, we held that under our statute, fringe benefits are not included in the calculation of the average weekly wage of a piece-rate worker. Id.
Here, decedent received a separate check for health insurance because he could not receive coverage under his employer’s plan due to his high blood pressure. The evidence established that regardless of the number of hours worked, decedent would receive his insurance benefits totaling $339.70. The evidence also indicates that decedent was not required to work a certain number of hours to receive his bonus and vacation pay. Notwithstanding the separate payment for health insurance, the health insurance, bonus, and vacation pay are fringe benefits as defined by Tabor. No hours were required to be worked to receive the fringe benefits: therefore, we hold that, under our statute, decedent’s fringe benefits of insurance allowance, bonus, and vacation pay should not be included in the calculation of his average weekly wage.
Whether A Step-grandchild Is Entitled to Receive Dependency Death Benefits
Appellant’s second argument on appeal is that the Commission erred in its failure to recognize a step-grandchild as a dependent entitled to workers’ compensation death benefits. Arkansas Code Ann. § ll-9-527(c) (Repl. 1996), provides:
(c) Beneficiaries — Amounts. Subject to the limitations as set out in §§ 11-9-501 to 11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
(1)(A)(i) To the widow if there is no child, thirty-five percent (35%), and the compensation shall be paid until her death or remarriage.
(2) To the widow or widower if there is a child, the compensation payable under subdivision (c)(1) of this section and fifteen percent (15%) on account of each child;
Prior to Act 796 of 1993, Arkansas Code Annotated section 11-9-102(10) (1987) defined child as “a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child.” Grandchild was defined as “a child of a child as defined in subdivision (10). . . .” Ark. Code Ann. § ll-9-102(10)(A) (1987). Also under the old statute, the definitions of brother and sister included stepbrother and stepsister. The old statutory definitions suggest that a step-grandchild was included. After Act 796, the definition of child remained the same but amended Arkansas Code section 11-9-102 no longer contained the broad definition of brother, sister, and grandchild that included stepbrother, stepsister, and impliedly, step-grandchild. However, Arkansas Code Annotated section 11-9-527(c)(5) does fist brothers, sisters, grandchildren, and grandparents as beneficiaries.
Arkansas Code section 11-9-704(c)(3) (Repl. 1996) states that we are to construe the workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999). The doctrine of strict construction is to use the plain meaning of the language employed. Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).
We must construe Arkansas Code Annotated sections 11 — 9— 527 and 11-9-102(2) using the plain meaning of the language used by the legislature. The word “step-grandchild” is absent from the language of both Arkansas Codes Annotated sections 11-9-527 and 11-9-102(2). The word grandchild is conspicuously absent from the current statutory definitions in Arkansas Code Annotated section 11-9-102. We hold that the Legislature did not include a step-grandchild as a covered dependent under the statute. Applying the plain meaning of the statutes, we hold that a step-grandchild is not a dependent under the workers’ compensation statutes. Because a step-grandchild is not cognizant under the statute as a dependent, we do not reach the issue of whether Austin Coins was “wholly and actually” dependent.
Accordingly, we affirm.
STROUD, C.J., agrees.
Griffen, J., concurs. | [
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Lawson Cloninger, Judge.
This is an appeal from a decree holding that a deed of easement granted to the predecessor in title of appellee, Carolyn Lofton, by the predecessors in title of appellants, Walter N. Goodwin and Betty Goodwin, remains in full force and effect and constitutes the valid right-of-way across lands of appellants. Appellee owns a 70.75 acre tract of land lying immediately west of a 48.25 acre tract owned by appellants. The easement was granted in 1966 and described a permanent and perpetual easement and right-of-way not to exceed 25 feet in width across the property of appellants to provide access from state Highway 7 to the lands of appellee. Subsequent to the granting of the easement, appellant’s husband commenced preparations for the construction of a road utilizing the easement as granted, but the husband became ill and died in 1972. Thereafter, appellee admittedly did nothing to utilize the easement until she made a decision in 1981 to move her residence to the 70.75 acre tract.
For reversal, appellants contend that the court erred by failing to find that the easement instrument was an indenture contract and invalid for failure of consideration; that the court’s finding that there was no expressed or implied intention to abandon the easement granted is not supported by a preponderance of the evidence; and that the court erred by failing to find that appellee is estopped or prevented by laches from enforcing the easement. We find no error in the trial court and we must affirm.
An indenture is defined as a deed to which two or more parties enter into reciprocal and corresponding obligations toward each other. See Black’s Law Dictionary 693 (5th ed. 1979). Failure of consideration may result not only from complete default but also from a protracted delay in performance. In chancery, the amount of delay that will be condoned varies with the equities of the case. Henslee v. Boyd, 235 Ark. 369, 360 S.W.2d 505 (1962). However, a present grant, absent fraud, mistake or undue influence, which is delivered, accepted and recorded, is valid without consideration. See Cannon v. Owens, 224 Ark. 614, 275 S.W.2d 445 (1955); Parkey v. Baker, 254 Ark. 283, 492 S.W.2d 891 (1973); Millwee v. Wilburn, 6 Ark. App. 280, 640 S.W.2d 813 (1982). Further, it is to be noted that a deed is to be construed most strongly against the grantor. Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957).
The pertinent portion of the deed of grant provides as follows:
As a further consideration for this grant, GRANTORS reserve the right to themselves, their heirs and assigns, to the use of any road to be constructed hereunder by GRANTEES for any needed use by GRANTORS.
Appellant contends that a failure of consideration occurred because the grantees in the deed of easement were obligated to construct a road within a reasonable time. However, there is no evidence to support a finding that this was an indenture, because there is no reciprocal or corresponding obligation. In fact, there is no affirmative duty on the part of appellee to do anything; the easement deed merely gave the grantors the right to use any road constructed by the grantees.
The rule is recognized in Arkansas that an easement may be lost by abandonment. Drainage District No. 16 v. Holly and Roach, 213 Ark. 889, 214 S.W.2d 224 (1948). Whether an abandonment exists in any given case depends on the particular circumstances of the case. While non-use does not alone constitute an abandonment, it is some evidence of it, and when, in addition to such non-use, facts are proved and circumstances and testimony evincing that intention are offered, then the abandonment is established. In Drainage District No. 16, supra, the evidence showing abandonment of right-of-way of an old levee included: (a) The 1915 right-of-way was for a levee only, and in 1938 the district acquired by grant a right-of-way for a new levee, which was erected on the new location; (b) the district entirely destroyed the old levee by removing an earthen embankment to the location of the new levee; (c) the district exercised no control over the right-of-way of the old levee from 1939 until shortly before the filing of the lawsuit; (d) the district suffered the appellees to erect buildings of a permanent nature on the old right-of-way. The court went on to say that abandonment of an easement will be presented where the owner of the right does or commits to be done any act inconsistent with its future enjoyment. Recognizing that there was other evidence of abandonment, the court affirmed the chancellor’s decision that the district had abandoned its old right-of-way.
The rule was again stated that an easement acquired by grant or prescription cannot be lost by mere non-use for any length of time, no matter how great; the non-use must be accompanied by an express or implied intention to abandon. State Highway Commission v. Hampton, 244 Ark. 49, 423 S.W.2d 567 (1968).
In this case, appellee’s husband was in the process of building a road across the easement when he died in 1972. The road was not completed when he died, and appellee made no effort to finish the work done or showed any interest in completing the road until shortly before this lawsuit. However, non-use alone is not enough to show abandonment of an easement. It must be accompanied by an express or implied intention to abandon, and there was no showing of such an intention to abandon by this appellee. There was sufficient evidence to support the chancellor’s decision that appellee had neither expressly nor impliedly intended to abandon her easement.
In discussing the doctrine of laches, the case of Rice v. McKinley, 267 Ark. 659, 590 S.W.2d 305 (1979), defined the term as an unreasonable delay by the party seeking relief under such circumstances as to make it unjust or inequitable to the other party to enforce the agreement. Appellants offered evidence that they had erected chicken houses on their property, and that the noise of traffic near the chicken houses would disturb and panic the chickens. However, in the chancellor’s decree, appellee was specifically directed to build her road so as not to interfere with the permanent improvements which appellants have placed on their property.
Appellant also argues that the doctrine of estoppel is applicable in this case, and cites the rule that equity will lend its aid only to those who are vigilant in asserting their rights. See Hamilton v. Smith, 212 Ark. 893, 208 S.W.2d 425 (1948). Appellant is correct in his claim that appellee stood by and permitted appellants to erect permanent structures and make other improvements to their farm, but the easement was not described in the deed; it merely granted a right-of-way, and the decree provided that appellee “be reasonable with respect to the rights of defendants in locating the right-of-way ... and place such right-of-way so as not to interfere with the permanent improvements defendants have placed on their land or the defendants’ use thereof.” We see no basis for an estoppel argument in this case.
The decision of the trial court is affirmed.
Cracraft and Corbin, JJ., agree. | [
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George K. Cracraft, Judge.
Donald Wayne Taylor and Betty Jo Taylor, great uncle and great aunt of Mark Hill, sought to adopt him without the consent of his natural parents, Mark Allen Hill and Carlene Hill, relying on Ark. Stat. Ann. § 56-207 (Supp. 1981) which provides in pertinent part as follows:
(a) Consent to adoption is not required of: ... , (2) a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
The appellants appeal from the order dismissing their petition for adoption, contending that the court erred in ruling that they had not sustained their burden of proving a statutory ground for dispensing with consent by clear and convincing evidence. We do not agree and affirm the action of the probate judge.
Ark. Stat. Ann. § 56-207 has been the subject of a number of recent opinions of the appellate courts of this state from which the principles governing the issues of this appeal have been established. Statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). The party seeking to adopt a child without the consent of a natural parent bears the heavy burden of proving by clear and convincing evidence that the parents have failed significantly and without justifiable cause to communicate with the child or to provide for its care and support for the prescribed period. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979).
“Clear and convincing evidence” has been defined as evidence of a credible witness whose memory of the facts about which he testified is distinct and whose narration of the details is so clear, direct, weighty, and convincing as to enable the finder of fact to come to a clear conviction, without hesitancy, of the truth of the facts related. This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt. It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established. Kelly v. Kelly, 264 Ark. 865, 575 S.W.2d 672 (1979). “Failed significantly” does not mean “failed totally” but the failure must be a significant one as contrasted with an insignificant one. It denotes a failure that is meaningful or important. “Justifiable cause” means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123 (1981) [affirmed on appeal 273 Ark. 203, 617 S.W.2d 367 (1981)]; Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).
While we review probate proceedings de novo on the record, it is well settled that the decision of a probate judge will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to judge the credibility of witnesses. ARCP Rule 52 (a); Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983); Henson v. Money, supra. Personal observations of the judge are entitled to even more weight in cases involving the welfare of a small child. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500(1958).
In 1974 Mark, then sixteen months old, wa$ removed from the custody of his natural parents by a juvenile court. He was placed in the Taylor’s home where he has remained since that time. The father testified that during the entire period he had, except on rare occasions, visited with the child at least once a week. He testified that his wife hacj visited less frequently because she did not feel welcome in the Taylor home. There was evidence in the record of an antagonistic feeling on the part of Mrs. Taylor toward the appellees, particularly toward the natural mother. Both natural parents testified that the visits with the child in the Taylor home were of short duration because of the action and attitude of Mrs. Taylor. They both testified that a short time after their arrival for visitation, she would state that she needed to go to the store, take Mark from the home with her, and would not return until after the natural parents had tired of waiting and gone home. The father testified, however, that he saw the child on many occasions in places other than appellants’ home. Mrs. Taylor admitted that there was visitation with Mark "a few minutes maybe once or twice a month.” Both parents testified that they had consulted several attorneys seeking to regain custody of the child.
The appellants do not argue that the parents did not visit with the child but only that the infrequency and short duration of the various visits constituted a significant failure to communicate. If the trial court believed the testimony of the natural father, as he obviously did, he could easily conclude that there was adequate communication between the natural parents and their child, especially in view of the testimony that the duration of the visits was determined by Mrs. Taylor rather than by the appellees.
The court’s ruling on failure to support the child presents a more difficult question. Appellants testified that during a seven year period appellees neither contributed anything for the child’s support nor purchased food or clothing for him. Appellees admitted that they had furnished little or no cash for his support but had on occasions given him clothing. The natural father testified that they had given him presents on Christmas and other special occasions. While admitting that he had provided little or no support for the child during that period the father testified that he was at all times ready, willing and able to do so but that it would not be received by appellants. He testified that he initially informed Mrs. Taylor, and repeated on several subsequent occasions, that he would provide whatever financial assistance was needed, but she told him that they neither desired nor needed any help from him. He testified that this was a continuing offer which was consistently refused — "everytime I told her she said, ‘we don’t need anything for him’.”
The failure to support the child must be "without justifiable cause” and the heavy burden of proving by clear and convincing evidence that the failure to support was intentional, willful, arbitrary and without justifiable cause lay upon the appellants. In Harper v. Caskin, supra, the Supreme Court in declaring the heavy burden cast upon one wishing to adopt a child against the consent of a parent stated:
. In order to grant an order or decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions prescribed by statute which make that consent unnecessary must be clearly proven and the statute construed in support of the right of the natural parent. Natural rights of parents should not be passed over lightly, even though the court is given power to enter decree of adoption without the consent of the parent or guardian when the judge considers that the best interests of the child will be promoted. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts is in favor of maintaining the natural relation.’ ”
There were several factors in this record which could have caused the trial judge to remain unconvinced that the natural parents had willfully and arbitrarily failed to discharge their obligation of support. Giving due regard and deference to the superior position of the trial judge to determine the weight of the evidence and the credibility of the testimony we cannot conclude that his ruling that appellants had failed in their burden of proof was clearly erroneous.
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George K. Cracraft, Judge.
Howard J. Barnes and Barbara Barnes appeal from a judgment entered on a jury verdict assessing just compensation for the taking of their lands by the Arkansas State Highway Commission. They contend that the trial court erred in denying their motions to suppress evidence regarding two ordinances of the City of Fayetteville and in allowing the appellee to present evidence of enhanced value to their remaining lands as a result of the taking. We find no error.
In 1969 the City of Fayetteville adopted Ordinance No. 1661 which as amended required all developers of lands abutting controlled access highways to submit to the City Planning Commission a plat of any proposed development and required that each such development include a 50 foot right-of-way for a service road across the property. It further required that the construction of the service road was to be at the individual developer’s expense but deferred the obligation of construction until all property between it and the outlet to the controlled access highway had been provided. The ordinance further required the service road to be dedicated to the City of Fayetteville. At that same time the city council adopted Ordinance No. 1662 declaring the entire length of U.S. 71 Bypass to be a controlled access highway.
Ten years later the Highway Commission determined that it would construct a service road adjacent to U.S. 71 Bypass at state expense. In November 1979 the Commission commenced condemnation proceedings against appellants to acquire right-of-way for the service road. Appellants owned jointly one tract of land across which the service road passed and appellant Barbara Barnes owned a tract immediately south of it in her own right. The two proceedings were consolidated and set for trial on September 20, 1982. Immediately prior to the commencement of the trial the appellants made oral motions in limine seeking to suppress testimony regarding the city ordinances. These motions were denied and the State’s experts were allowed to testify that in arriving at the fair market value of lands immediately before the taking they had given consideration to the existence of these ordinances along with all other factors affecting market value. They testified that any knowledgeable buyer would be aware of the financial burden these ordinances imposed upon the owner to construct service roads and would discount the price they would be willing to pay.
In arriving at the market value of the lands immediately after the taking the experts also took into consideration the fact that the taking had relieved the owner of the lands of that financial burden and in their opinion this factor would enhance the value of the remaining property. The court instructed the jury that they could consider these ordinances in determining fair market values of the land and gave a proper instruction that the Commission had the burden of proving that the highway had enhanced the value of the property remaining after the taking and that the benefits were of a special and peculiar nature not shared by the general public. Ark. Hwy. Comm’n v. Hambuchen, 243 Ark. 832, 422 S.W.2d 688 (1968).
The appellants argue that these ordinances were invalid and that during the pendency of this appeal the Supreme Court declared them to be in violation of Ark. Const. art. 2, § 22. Calabria v. City of Fayetteville, 277 Ark. 489, 644 S.W.2d 249 (1982). They contend that the court erred in permitting testimony regarding the ordinances and instructing the jury as to enhancement.
It is well settled that the measure of damages for the taking of private property for highway purposes is the difference in the fair market value of the lands immediately before the taking and immediately after less any enhancement in value resulting from the taking. Young v. Ark. State Hwy. Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967).
Ark. Stat. Ann. § 76-521 (Repl. 1981) specifically provides that in cases of condemnation for highway purposes the jury may deduct from the value of lands taken any benefits the highway may confer on the remaining land. Bridgman v. Baxter County, 202 Ark. 15, 148 S.W.2d 673 (1941). It is also settled that in arriving at “before and after” value of the lands a jury may consider every element that can fairly enter into the question of market value and which a businessman of ordinary prudence would consider before purchasing the property. Ark. State Hwy. Comm’n v. 1st Pyramid Life Ins., 269 Ark. 278, 602 S.W.2d 609 (1980). Whether these ordinances were invalid or would subsequently be held unconstitutional was not the issue in the trial court. The issue was whether the fact that they existed, unchallenged and presumptively valid at the time of taking was a factor that an ordinary prudent person would consider before purchasing the property. From the evidence the jury could, and from its verdict it obviously did, believe that they were a factor and that the action of the Highway Commission in relieving the landowner of this financial burden was a factor that an ordinary prudent man would consider before making the purchase.
We find no error.
Mayfield, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from a portion of a chancery court decree. The suit was filed by a bank in Blytheville seeking judgment on a note and foreclosure of a mortgage executed by Charles and Carolyn Smallwood. The bank made Planters Production Credit Association and Ellis Gin Company parties alleging they also held mortgages on the property but that the bank’s mortgage was superior and paramount. The bank specifically alleged that the Ellis Gin mortgage was barred by the statute of limitations.
Both Ellis and Planters filed answers to the bank’s complaint admitting and denying certain of its allegations and filed cross-complaints against the Smallwoods seeking foreclosure of the Smallwood mortgages held by Ellis and Planters. The pleading filed by Ellis did not, however, specifically deny the bank’s allegation that the mortgage held by Ellis was barred by limitations, although the prayer of its “Answer and Cross-Complaint” asked that all claims made by the bank and Planters be declared junior and inferior to the Ellis claim.
The Smallwoods were served with summons on the bank’s complaint and Planter’s cross-complaint, and they filed an entry of appearance and waiver of service on the Ellis cross-complaint. No answer, however, was filed by them to the complaint or cross-complaints and eventually a decree was entered in which judgments were granted against them and the priority of liens was fixed. Ellis was given a fourth lien on the Smallwood home and a third lien on the other real property. Foreclosure of all the property was ordered and on the day of the foreclosure sale, the Smallwoods filed a motion alleging that the failure of Ellis to deny the bank’s allegation that the Smallwoods’ indebtedness was barred by limitations was an admission that it was so barred and, additionally, that even though the Smallwoods failed to plead the statute of limitations as to the claim of Ellis, this was pled by the bank and Planters and their pleadings inured to the Smallwoods’ benefit.
The Smallwoods’ motion asked that the court’s decree be “changed and corrected” to reflect that the claim of Ellis is barred by limitation. This motion was denied and from that denial the Smallwoods have appealed.
On appeal the appellants first argue that the failure to deny the bank’s allegation that the claim of Ellis is barred is deemed to be an admission of that allegation. We do not agree. The cases cited in support of this point, St. Louis I. M. & S. Ry. Co. v. State, 85 Ark. 561, 109 S.W. 545 (1908) and Meek v. United States Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968), do not apply to the situation in this case. It is true that some allegations are taken as admitted unless specifically denied and Civil Procedure Rule 8 (d), which was in effect at the time here involved, provides that “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied . ...” In this case, however, the Smallwoods made no pleading to which Ellis could respond. The bank alleged that the Ellis lien was barred by limitations and that the bank’s lien was superior to the Ellis lien. The failure to deny those allegations might admit them as far as the bank’s claim is concerned, but this does not affect the Ellis claim against the Smallwoods.
The statute of limitations is an affirmative defense which has long been required to be specially pleaded. Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S.W. 752 (1906); Civil Procedure Rule 8 (c). However, pleading the statute of limitations is a personal matter and is a defense only to the party pleading it. Henry v. Coe, 200 Ark. 44, 137 S.W.2d 897 (1940); Hall v. Bonville, 36 Ark. 491 (1880). Thus, the plea of limitations made by the bank in this case applied only to the issues between it and Ellis. There was no plea of limitations as a defense to the Ellis claim against the appellants Charles and Carolyn Smallwood.
What we have just said also applies to the appellants’ second argument, i.e., that the plea of limitations made by the bank inured to the appellants’ benefit. The cases of Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 281 (1978) and Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980), are cited in support of appellants’ contention in this regard. Those cases involved default judgments entered against a defendant where there was-another defendant, alleged to be jointly and severally liable, who had filed an answer which denied the material allegations of the complaint. Both cases held that the answer filed by the one defendant stated a defense common to both defendants and therefore inured to the benefit of the defendant in default. In the present case, however, the plea of the statute of limitations was a personal plea of the bank and did not inure to appellants’ benefit. In Hall v. Bonville, supra, the court said:
Where several are sued on a contract, a successful plea by one going to the validity of the contract, or to the satisfaction or discharge of the debt, operates as a discharge to all the defendants; but it is otherwise where the plea goes to the personal discharge of the party interposing it. The plea of limitation interposed in the separate answer of appellee Howell, was personal to him, and the court erred in rendering judgment discharging both him and appellee Bonville on the plea.. .. One defendant may think proper to plead the statute of limitation, and another may not.
The plea of limitations is personal to the party pleading it. Therefore, it is not a common defense and cannot inure to the benefit of a party who does not plead it.
Affirmed.
Cooper and Corbin, JJ., agree. | [
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Andree LAYTON Roaf, Judge.
Kyle Coombs appeals from the circuit court’s order that denied his motion to nonsuit his tort action against the appellees, granted the appellees’ motion for summary judgment, and dismissed Coombs’ complaint with prejudice. On appeal, Coombs argues that the trial court erred in denying his motion for a voluntary nonsuit pursuant to Ark. R. Civ. P. 41 (a) because the motion was filed before the case was finally submitted. We agree that the trial court erred, and reverse and remand.
Coombs brought a toft action against appellees, in which he alleged claims of false arrest and imprisonment, malicious prosecution, tortious interference with a business relationship, abuse of process, and breach of contract. One month before the scheduled trial date, the appellees moved for summary judgment. Coombs moved for additional time to respond to the summary-judgment motion. Although the motion for time was not granted, Coombs failed to respond and, when he appeared at a scheduled pretrial hearing after the time for responding had expired, he was not prepared to defend the motion. The appellees requested that the court rule on the summary judgment motion. Coombs again requested an extension of time. The trial court, who was sitting on assignment from another county, granted a one-week extension of time with the stipulation that further pleadings must be in the judge’s hands by September 1, 2000, that they must be faxed to the judge’s office in Murfreesboro, and that appellees would have five days to respond. Shordy before the close of business on September 1, Coombs filed with the court clerk another motion for an extension of time or, in the alternative, a motion for a voluntary nonsuit. The trial judge refused to grant the additional time, and stated in a letter opinion dated September 9, 2000, that the motion for nonsuit was made after the court had ruled on the summary-judgment motion. The court entered summary judgment for appellees on September 15, 2000.
Coombs next filed a motion to set aside the summary judgment on September 25, 2000, in which he asserted that the judgment was entered prior to any final submission to the court. In a brief accompanying his motion, Coombs contended that he had been unable to speak to the court or his case coordinator because the court closed early on September 1, 2000, but that he had faxed the motion for additional time that included an alternative request for voluntary dismissal under Ark. R. Civ. P. 41 (a) to the court as agreed on that date.
The trial court advised the parties by letter that it had given Coombs specific instructions on how and when he was to respond to the motion for summary judgment, that Coombs had failed to carry out his instructions, and that the request for nonsuit came after the court had already made its decision. The court denied the motion to set aside the summary iudgment by order dated October 23, 2000.
Coombs argues on appeal that the trial court erred in denying his motion for a voluntary nonsuit under the provision of Ark. R. Civ. P. 41(a). He asserts that the motion came before the case had been submitted to the court and that he was entitled to an order dismissing the action as a matter of right.
Arkansas Rule of Civil Procedure 41(a), addressing voluntary dismissal, in pertinent part states:
Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
Both parties are in agreement relating to the standard for determining whether a plaintiff has a right to a nonsuit. “[T]he privilege to take a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury.” Wright v. Eddinger, 320 Ark. 151, 154, 894 S.W.2d 937 (1995); Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989); see also Beverly Enterprises-Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.2d 487 (2000); Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962); Mutual Benefit Health & Accident Ass’n v. Tilley, 174 Ark. 932, 298 S.W.2d 215 (1927). Therefore, if a voluntary nonsuit is sought before the final submission of the case, then the nonsuit is an absolute right. Wright v. Eddinger, supra. If the nonsuit is requested after final submission of the case, it is within the trial court’s discretion to grant or not grant it. Id.
Coombs filed his motion on the day his response to appellees’ motion for summary judgment was due, Friday, September 1, 2000. Coombs asserts that although the court had indicated that it wanted his response in time to make its decision on that Friday, the court granted appellees five days to reply to the response, and therefore, “[rjegardless of what the [appellant] filed, the [appellees] had requested and received the acknowledged right to reply within five days afterward. The matter simply was not submitted to the court for decision when it denied [appellant’s] motion for a voluntary nonsuit.” We agree.
A case is not finally submitted until the argument is closed and the case submitted to the jury or the court. Wright v. Eddinger, supra. See also Haller v. Haller, supra. In Wright v. Eddinger, supra, the principal point on appeal was whether under ARCP Rule 41(a) a trial court may grant a request for voluntary nonsuit where the trial court had announced its decision to grant the defendants’ motion for summary judgment. The trial court granted the nonsuit and the defendant appealed. Plaintiff contended on appeal that the argument had not been concluded because she had filed a supplemental memorandum. The supreme court did not agree, and opined that under appellee’s theory, “the losing party could simply submit a brief after the trial court’s ruling and contend the case was never finally submitted.” However, the court ultimately held that the trial court did not abuse its discretion in granting the nonsuit, and affirmed.
In Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), a hearing was held on a motion to dismiss the complaint for failure to answer discovery requests. The plaintiff appeared and asked to take a nonsuit under ARCP Rule 41(a), which was denied by the trial court. On appeal, it was determined that plaintiffs request for nonsuit should have been granted. “The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute.” Duty v. Watkins, supra, citing Haller v. Haller, supra. The court stated that the case had not been finally submitted because, “although the case had come to a hearing, the argument was not yet closed.” Id.
In the present case, Coombs contends that the argument had not been closed because he still had the right to file a response and appellees retained the right to submit a reply. The trial court instructed Coombs to submit his response by September 1, 2000. On September 1, 2000, appellant instead filed a motion for an extension and, in the alternative, moved for a nonsuit. The trial court did not address Coombs’s motion, and on September 8, 2000, Coombs filed for another extension and again asked, in the alternative, for a nonsuit. Finally, on September 9, 2000, the trial court sent a letter to counsel stating, “When I did not receive any information in response to the Defendant’s motion for summary judgment from [Coombs’s counsel] as requested and directed by the Court, I then contacted [appellees’ counsel] and informed him to prepare an Order with Findings of Fact and Conclusions of Law and forward it to me for my signature.” The trial court signed the order of dismissal on September 11, 2000, and it was entered on September 15, 2000..
We find this case distinguishable from Wright v. Eddinger, supra. While it is clear that a party cannot “simply submit a brief after the trial court’s ruling and contend the case was never actually submitted, unlike the situation in Wright, the trial court did not issue a final ruling. The trial court stated that it was “quite impressed” with the motion for summary judgment and that it intended to grant the motion unless Coombs could present something by Septmber 1 to “convince me otherwise;” however, at no point during the pretrial hearing did the trial court state that it was granting appellees’ motion for summary judgment on that date.
Instead, the trial court allowed Coombs until September 1 to respond, and Coombs, rather than responding to the merits of the summary judgment, moved for a nonsuit on that date. Under these circumstances the argument was not closed and the case had not been finally submitted to the court. Accordingly, the trial court erred in refusing to grant the motion. We reverse and remand for entry of an order dismissing the case without prejudice.
Hart and Jennings, JJ., agree.
Baker, J., concurs.
Pittman, J„ and Hays, S.J., dissent. | [
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Tom Glaze, Judge.
This case involves a boundary line dispute between the Oxford and Violet Hill school districts. The trial court decided the dispute in Violet Hill’s favor. Oxford contends on appeal that the court’s decision is against the preponderance of the evidence and that the court erred by applying the wrong law. We affirm.
In its brief, Oxford characterizes this action as the “battle of the maps” — a vivid description depicting a boundary dispute caused in large part because of variances in four different maps, each supposedly reflecting the correct line dividing the two school districts. Violet Hill relied on two maps, dated 1936 and 1971, located in the State Department of Education. To establish the boundary line, Oxford used maps located in the County Supervisor’s and the County Assessor’s offices. In holding for Violet Hill, the trial judge established the line between the districts in accordance with the boundaries reflected in the 1936 and 1971 maps. In reviewing the findings of a circuit judge sitting as a jury, we do not reverse unless we find them clearly erroneous or clearly against a preponderance of the evidence. National Investors Fire and Casualty Insurance Co. v. Chandler, 4 Ark. App. 116, 628 S.W.2d 593 (1982).
This controversy was precipitated in part by a dispute between the parties over which district certain students should attend. One student is a basketball player, and Oxford contended he should attend school in its district because he and his family reside there. Violet Hill countered that his family’s home was within its district. Subsequently, Violet Hill commenced this cause to establish the location of the districts’ boundary line to determine in which district these students, including the basketball player, lived. The basketball player’s home is situated in Section 8, Township 18 North, Range 8 West; however, the disputed boundary line involves not only Section 8 but also eight other sections, viz., 4,9, 16,17, 20, 21, 29 and 32. Each district’s tax revenues from the State and local property assessments also are affected by the outcome of this lawsuit.
Violet Hill’s suit challenged two decisions made by the Izard County Board of Education (hereinafter Board): (1) its initial decision adopting the County Supervisor’s map which placed all nine sections in the Oxford district, and (2) its subsequent decision drawing the boundary line to correspond with the County Assessor’s map and tax records, thus placing Sections 8, 20 and part of 17 in Oxford and the remaining sections in Violet Hill. In reaching these decisions, the Board had attempted to resolve the parties’ dispute on the location of their common boundary line; instead, the Board’s actions led to this suit. In reviewing the Board’s decisions, the trial court found that the Board erred in relying on the County Supervisor’s map and the Assessor’s records. Alternatively, the court concluded the correct dividing line should reflect that which appeared on the 1936 and 1971 maps filed with the State Board of Education.
We believe the trial judge’s findings are supported by the evidence. The j udge found that the two maps relied on by Oxford had been altered — a fact which we quickly affirm by way of our own inspection. Upon examining the County Supervisor’s map, we observed a dim red line which has been erased. Before the erasure, this line was drawn reflecting sections 8, 20 and part of 17 in Oxford and sections 4, 9, 16, 21, 29, 32 and part of 17 in Violet Hill. A new red line now exists on the map, placing all nine sections in Oxford. The County Assessor’s map relied on by Oxford also reveals an erased red line; this erased line, however, reflected all nine sections in Violet Hill. Like the Supervisor’s map, the Assessor’s map has a new red line showing all nine sections in Oxford. The trial court found the Board made these alterations sometime in the 1970’s. In support of this finding, the record reflects that the County Supervisor, Tom Simpson, testified that he recognized the lines appearing on the 1936 and 1971 maps (introduced by Violet Hill) as being the existing boundary between the parties during the entire time he served in office — from 1937 until 1972. As noted earlier, the 1936 and 1971 maps show all nine sections in Violet Hill, not in Oxford as is now depicted by the County Supervisor’s map. Of course, we are aware of Oxford’s argument in this appeal that Simpson, due to infirmities of old age, was confused when he testified on this point. On re-direct examination, he attempted to correct his prior testimony, stating he incorrectly relied on the 1936 and 1971 maps and instead the County Supervisor’s map reflected the proper boundary line. Of course, the trial court had to weigh Simpson’s testimony to decide which part of it, if any, to accept as credible and in such matters, we defer to the superior position of the trial judge. Id. at 117, 628 S.W.2d at 594. Obviously, the court accepted Simpson’s testimony that the lines on the 1936 and 1971 maps were correct and rejected the maps presented by Oxford because they contained questionable alterations, which had occurred after Simpson left office.
In addition to Simpson’s testimony, other reasons support the court’s refusal to rely on the Supervisor’s and Assessor’s maps and its finding that those maps had been altered during the 1970’s. For example, the County Supervisor’s map was printed in 1976 and both the erased and new red line obviously were placed on the map in 1976 or thereafter. The same is true concerning the Assessor’s map since it, too, was printed in 1976. An Assessor’s employee, June Maxwell, conceded that this map was changed to correspond with the Supervisor’s map sometime after she began working in the Assessor’s office, apparently in 1975 or 1976. Thus, according to Maxwell’s testimony, the Assessor’s map was changed in the 1970’s and before that change, the map reflected the disputed line drawn so as to place all nine sections within the Violet Hill district. In sum, Oxford’s witnesses and the two maps it introduced presented conflicting views regarding the true location of the parties’ common boundary line; based on this evidence alone, the trial judge reasonably could have inferred that all nine sections had been in the Violet Hill district since 1936 and that the confusion over the correct line arose only when new and different lines appeared on the Supervisor’s map which was altered sometime during the 1970’s.
The court’s findings are further supported by other evidence presented by Violet Hill. Violet Hill called as its witness, Truett Goatcher, an official of the Arkansas State Department of Education. After testifying that the County Supervisor is required to submit any changes in school district boundaries to the State Education Office, Goatcher stated that the Izard County Board had submitted no changes. In fact, he testified that the only Izard County records on file in his office before this controversy arose were two maps reflecting that all of the disputed sections are in the Violet Hill district. These maps were dated 1936 and 1971, and neither has a hint of an alteration in the boundary lines. These maps are also the ones Simpson, the former County Supervisor, identified as reflecting the official boundary he relied on from 1937 until 1972.
Oxford argues that the two maps located in the State Education Office are not official and that the only official map is the one required by law to be kept in the County Supervisor’s office. This argument ignores the real issue. All parties agreed that no official changes had been made in the common boundary line between the two districts; thus, the trial judge was confronted with determining where their original dividing line was drawn. The trial court did not rely on the County Supervisor’s map because it had been altered. The judge chose to accept the maps on file with the State Education Department — not because these maps were official — but because, along with certain testimony, they revealed where the dividing line existed in 1936.
For the same reason, we dispose of Oxford’s contention that the trial judge erred by misapplying Ark. Stat. Ann. §§ 80-404, -424 and -425 (Repl. 1980). Section 80-404 deals with the formation, dissolution or change in school districts. As Violet Hill points out, the Izard County Board clearly did not intend to change existing boundary lines but only attempted to resolve where the line was located. Therefore § 80-404 has no application to the facts here.
Sections 80-424 and -425 are likewise inapplicable. Section 80-424 merely ratified actions taken by county boards of education before March, 1951, in creating, consolidating or altering school districts. In the instant case, no change has occurred in the line between Oxford and Violet Hill since it was established in 1936; thus, § 80-424 is inapposite. Nor can we agree that § 80-425 helps Oxford’s cause. Among other things, § 80-425 compiles a 1931 Act that cures any defects which may have existed in the formation of a present (then existing) school district; it also empowered the county boards of education to fix boundaries of such a district where they are uncertain because of lost records or other reasons. According to Mr. Simpson’s testimony, the Izard County Board was established in 1937. We also find no evidence that the Oxford and Violet Hill districts even existed in 1931, thus making § 80-425 inapplicable.
We believe the evidence clearly supports the findings of the trial court, and therefore, we affirm its decision in all respects.
Affirmed.
Mayfield, C.J., and Cracraft, J., agree.
At some point in time, the student moved to live with his grandparents, who reside in Horseshoe Bend, which is within the Violet Hill school district. | [
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Lawson Cloninger, Judge.
The issue on this appeal is whether the trial court erred by ruling that the consent of appellant, Edna Dangelo, the natural mother of Justin Dangelo, was not required for the adoption of Justin by appellees, Ernest Ray and Joann Neil. The court granted appellees’ petition for adoption after finding that appellant’s consent was not required, in that appellant had failed significantly, without justifiable cause, to communicate with or provide care and support for Justin for a period of over one year. We affirm the judgment of the trial court.
Under normal circumstances the consent of the natural mother of a child is required before that child may be adopted, but Ark. Stat. Ann. § 56-207 (Supp. 1983) provides for those instances when the consent of the natural parent is not required. Section 56-207 provides in pertinent part as follows:
(a) Consent to adoption is not required of: ... .
(2) A parent of a child in the custody of another, if the parent for a period of at least one 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.
Appellees had the burden of showing by clear and convincing evidence that appellant had failed significantly to support her son, without justifiable cause, for any consecutive period constituting a total of one year. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).
The child, then two years old, came to appellees’ home on February 10,1979, and on May 5,1981, appellant filed her petition for a writ of habeas corpus. The child lived with appellees continuously during that 51-month period except for a few weekends spent with appellant during the first year. The longest period of visitation with the mother was one six-day period. During the first year, the mother made occasional visits to the child, but there was no communication at all between the mother and child from April, 1980 to May, 1981. During the first fourteen months the child was with appellees, the appellant contributed less than $100 for the care and support of her son. For the period between April, 1980 and May, 1981 she made no contribution.
There is ample evidence to support a finding that appellant had no communication with her son for a period in excess of one year, and that she made no significant contribution toward the care and support of the child for a period in excess of two years. The troublesome question is whether appellant’s failure was without justifiable cause.
There is evidence that appellees gave appellant cause to believe that no contribution was expected from her. Soon after the child was taken into appellees’ home, appellee Joann Neil told appellant that “You owe me. If you take a notion to take out on the truck and leave with your boyfriend, call us and bring him to us.” On another occasion, appellees returned a $30 contribution to appellant because they thought appellant needed the money to attend her brother’s funeral. Whether appellees expected or requested contributions from appellant is not the determining factor. A parent has the obligation to support a minor child, and no request is necessary. Ark. Stat. Ann. § 57-633 (Repl. 1971). It was also appellant’s legal obligation independent of statute. Brown v. Brown, 233 Ark. 422, 345 S.W.2d 27 (1961).
Appellees caused appellant to be arrested in April, 1980, for taking the child, and appellant testified that she was apprehensive about visiting the child because of appellees’ attitude. However, appellant was never denied permission to visit with her son at any time during the 51-month period. In any event, in April of 1980 more than a year had already passed without significant contribution by appellant for the care and support of her son. “Failed significantly” certainly does not mean “failed totally.” It only means that the failure to communicate or support must be significant, as contrasted with an insignificant failure. It denotes a failure that is meaningful or important. Pender v. McKee, supra.
Appellant testified that she did not communicate with her son during the period from April, 1980 to May, 1981 because her attorney had told her that all communication between the parties should be made through the attorneys. The trial judge rejected this assertion, stating that it was hard for him to believe that an interested mother would not try to get in touch with her child for a year. We agree. There was evidence that appellant had the custody of her other three children during a portion of 1981, and there is evidence that she was employed and could have made some contributions toward the support of Justin.
Appellant contends that the phrase “in the custody of another,” as used in Ark. Stat. Ann. § 56-207 (a) (2), supra, means lawful custody. Appellant is correct in her contention that there was no valid court order awarding custody of the child to appellees, but appellant cites no authority for the proposition that there can be no lawful custody without a court order. We are not persuaded by her argument. The evidence indicates that the child was in the custody of appellees for many months with the consent of appellant, and that appellant formally withdrew that consent only shortly before appellees filed their petition for adoption. Appellees had custody of the child lawfully, in the sense that the custody was not unlawful.
Rule 52 (a) of the Arkansas Rules of Civil Procedure provides that findings of fact by a trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial judge to judge the credibility of the witnesses. Under this rule and under the evidence in this case, the findings of the trial judge are not clearly against the preponderance of the evidence.
Judgment affirmed.
Glaze, J., dissents. | [
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Andree Layton Roaf, Judge.
Appellant Kevin Linn was convicted of second-degree battery and sentenced to fifteen years’ imprisonment. On appeal, Linn argues (1) that the trial court erred in declining to direct a verdict because the State did not prove physical injury associated with physical trauma, and (2) that he should be granted a new trial because he was denied adequate assistance of counsel in his first trial. We affirm.
The victim, Deputy Sheriff McKinley Scott, testified at trial that on February 15, 2001, he worked in the U-Unit of the Pulaski County Jail and was responsible for Linn’s supervision. During Scott’s shift, Linn was handcuffed during his scheduled cell break in a sub-day area until he freed one hand and began to bang his cuffs against the cell’s glass window. After hearing the noise, Scott refastened the handcuff through the open space in the door. He then moved Linn to the front of the room, told him that his break was over, and prepared to return Linn to his cell. Suddenly, Linn grabbed Scott’s keys, which were in his left hand. While they struggled for the keys, Linn pulled the key ring and Scott’s left hand to his mouth and bit the deputy’s thumb. According to Deputy Sheriff Kala Cherry who was assisting Scott, Scott screamed and immediately dropped the keys. A distress call was made, and the responding officers were eventually able to restrain Linn after putting him in the restraint chair. One of the responding officers testified that he saw blood on Scott’s hand where Linn had bitten him.
Scott testified that the bite wound produced teeth marks around his left thumb knuckle and that his thumb was swollen and sore. He was taken to the emergency room, where Dr. Darren Flamik treated him and gave him a tetanus shot. Dr. Flamik testified that the skin was broken around Scott’s thumb by the bite, in an abrasive-type wound, and that it looked like a tooth had caught the skin and had torn it. He advised Scott to watch for infection, due to the fact that a human bite is one of the worst types of bites in terms of the high incidence of infection. Also, due to the nature of the wound, Scott was told that he needed to be routinely tested for HIV and other diseases for up to one year. Scott testified that, more than one year after the incident, his thumb still had a visible mark from the bite.
After the State rested its case, Linn made a motion for a directed verdict, arguing that there was not enough evidence of a physical injury. The court denied the motion, and the defense rested without presenting any evidence. The jury then convicted Linn of second-degree battery and sentenced him to fifteen years’ imprisonment.
Linn first argues that the trial court erred in declining to direct a verdict because the State did not prove that the victim suffered a physical injury. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id. Substantial evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id.
Arkansas Code Annotated section 5-13-202(a)(4)(A) (Supp. 2001) provides that a person commits battery in the second degree if he “intentionally or knowingly, without legal justification, causes physical injury to one he knows to be ... an employee of a correctional facility while such [employee] is acting in the line of duty[.]” “Physical injury” is “the impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling or visible marks associated with physical traumaf.]” Ark. Code Ann. § 5-1-102(14) (Supp. 2001). In determining whether a physical injury exists, a jury may consider the severity of the attack and the sensitivity of the area of the body to which the injury was inflicted. Farrelly, supra. A jury may also rely on its common knowledge, experiences, and observations in life in making such a determination. Id.
Linn asserts that the requirement of physical injury under the statute is not satisfied by just any bruising, swelling, or visible marks, but rather only those bruising, swelling, or visible marks that are associated with physical trauma. He argues that the word “trauma” carries a connotation of severity and thus that the minor scrape on Scott’s hand in this case does not meet the definition of physical injury. However, we find that the bite wound in this case satisfies the requirement of physical injury.
“Trauma” has been defined as “an injury (as a wound) to living tissue caused by an extrinsic agent,” Webster’s Ninth New Collegiate Dictionary 1256 (1991), and as “a bodily injury, wound, or shock.” Webster’s New World Dictionary 1423 (3d ed. 1994). These definitions do not require the severity suggested by Linn. Also, the definition of physical injury was amended in 1999 to make it easier for the State to prove physical injury by including the additional language of “infliction of bruising, swelling, or visible marks associated with physical trauma.” Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001). The court in Conner held that scratches and abrasions, as well as bruises that did not show up in the photographs, caused when the victim was dragged through and outside her house, were encompassed by the amended statutory definition of physical injury. Id.
In this case, the evidence showed that Deputy Scott was involved in a struggle with Linn for the keys to the jail when Linn grabbed his hand and bit it, causing Scott to immediately scream and drop the keys. The bite left teeth marks on Scott’s thumb and caused it to bleed. Scott testified that he was in pain, that his thumb was swollen, and that he went to the emergency room. Dr. Flamik testified that the bite tore the skin and that he had to give Scott a tetanus shot. Dr. Flamik further testified that there was a high risk of infection and that Scott would have to be periodically tested for HIV and other diseases for one year after the incident. Scott also stated that he still has a visible mark on his hand from the bite by Linn. This evidence is sufficient to show that Scott suffered swelling or other visible marks associated with physical trauma under section 5-1-102(14).
In addition, the State contends that Linn’s conviction may be affirmed on an alternative basis because the evidence was also sufficient to show that Scott sustained a physical injury caused by the infliction of substantial pain, which is another part of the definition of physical injury. However, we need not address this contention in light of our finding that there was substantial evidence to prove that the victim suffered a physical injury due to swelling or other visible marks associated with physical trauma, and the definition of physical injury is in the disjunctive. Thus, substantial evidence supports Linn’s conviction for second-degree battery.
•Linn next argues that he should be granted a new trial because he was denied “meaningful” and “adequate assistance” of counsel due to “a near-total lack of communication between him and his trial counsel” prior to the trial. He asserts that he did not receive adequate assistance sufficient to rise to the level of “counsel” as guaranteed by the. United States and Arkansas Constitutions.
The State contends that Linn’s argument is not preserved for appellate review because it was not raised or developed in the trial court. Appellate courts do not consider claims of ineffectiveness of counsel on direct appeal unless the trial court has previously considered the issue during the trial or in a motion for a new trial, and the facts surrounding the claim were fully developed in the trial court. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998).
Linn did not object on the basis of ineffective assistance of counsel during the trial, nor did he raise the issue in a motion for a new trial. He did make a motion for a continuance to the trial court prior to the start of the trial, on the basis that he had not had enough time to consult with his counsel and to discuss his defense, which was denied by the court. He did not, however, raise the issue he now raises on appeal, which is that he was denied his constitutional right to counsel based on the lack of communication prior to trial. A party cannot change the grounds for an objection or argument on appeal, but is bound by the scope and nature of the arguments made at trial. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Because Linn did not raise the argument he now makes on appeal to the trial court, it is not preserved for our review, and therefore, we do not address Linn’s claim that he was denied adequate assistance of counsel.
Affirmed.
Pittman and Robbins, JJ., agree. | [
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Sam Bird, Judge.
James McKinney appeals the denial of his workers’ compensation claim for an injury to his left knee. The injury, sustained in the workplace on December 14, 2001, required medical treatment and ultimately resulted in surgery. The Workers’ Compensation Commission affirmed and adopted the decision of the administrative law judge, which denied his claim on the following basis:
[T]he claimant was not performing employment services at the time he chose to jump over the tube sheeting to retrieve his soda so that he could go on his smoke break. This jump and landing which injured the claimant’s left knee did not occur at a time when the claimant was advancing the respondent’s interests or performing employment activities.
McKinney contends that the Commission erred in determining that he was not performing employment services at the time of his injury. We affirm the decision of the Commission.
McKinney testified that he was a union employee working as a sheet-metal fabricator under a full-time contract of hire pursuant to a union contract with appellee Trane Company. He testified that on the date of the injury he was working in the coil shop, and that a co-worker came to get him to go on his last break about five or six minutes before the break. He walked to the break table to get his cigarettes and turned around to go outside, but he decided instead to go back to get a soda he had left on the break table. He took the most direct route by leaping over tube sheet buckets instead of going all the way around, and he landed on the floor on a pile of aluminum fins that he had not seen before leaping. His leg slipped, and his knee was injured. He testified that the setup of the department where the buckets were located had ■been changed from the time that he had been there previously, which was probably more than a month earlier. On the day after his injury, the company posted a “lost-time injury notice” stating that there should be no jumping or running in the facility.
McKinney testified that he was pinning coils until his co-worker came to get him for break, at which time he removed his apron, gloves, and safety glasses, putting his equipment on the table. He said that if he had gotten his soda and had not fallen, he would have gone outside to smoke on his break. He said that although he would not have been pinning coils on break, he would have been under a duty to report anything askew in the workplace had he observed it during that time. He said that the break gave employees an opportunity to go to the restroom, to smoke, or to refresh themselves with a drink. He explained that this was a scheduled ten-minute break under the union contract of employment, and that almost everyone in the plant was on break at the same time.
A compensable injury is defined, in part, 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 injury “inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4) (B) (iii). In Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we held that the claim was not compensable because employment services were not being performed when Harding tripped over a rolled-up carpet on her way to a designated smoking area in the workplace. We rejected her argument that the break advanced her employer’s interest by allowing her to relax and to work more efficiently. We observed that an employee’s injury sustained en route to a break area would have been in the course of employment under prior law and the personal-comfort doctrine, but that Act 796 of 1993 excluded from the definition of “compensable injury” any injury inflicted upon an employee while the worker was not performing employment services.
In Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002), a truck driver was injured while returning to his truck after using the restroom during a break. The supreme court, stating that it had not directly addressed the personal-comfort doctrine since the enactment of Act 796, refused to automatically accept or reject the doctrine. Instead, the court said that the critical issue was whether the employer’s interests were being advanced directly or indirectly by the claimant at the time of the injury. The Pifer court wrote the following:
Since 1993, we have twice been called upon to construe the statutory language found in sections 11-9-102(4) (A) (i) and 11-9— 102(4)(B)(iii). See White v. Geogia-Pacific Corp., supra, and Olsten Kimberly Quality Care, supra. We have held that 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. at 478, 6 S.W.3d at 100. 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.” White v. Georgia-Pacific Corp., supra; Olsten Kimberley, supra. The test 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 indirecdy.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 and Olsten Kimberly, supra.
347 Ark. at 856-57, 69 S.W.3d at 3-4. Pifer’s claim was held to be compensable on the finding that the restroom break was a necessary function that directly or indirectly advanced the employer’s interests.
McKinney, arguing that a claim is not precluded merely because an employee was engaged in an act of a personal nature at the time of injury, contends that the Commission erred in analyzing his claim under Harding v. City of Texarkana, supra. He points instead to the “critical issue” set forth in Pifer as to whether the employer’s interests were being advanced directly or indirectly by the employee at the time of the injury. McKinney proposes that the performance of a contract of employment is “by definition” performance of employment services because the contract, including in this case the paid break as a condition of contract, directly benefits his employer. The respondents contend that adoption of McKinney’s argument would extend workers’ compensation coverage to other activity allowed under an employment contract, such as paid vacations. Further, respondents argue that this case is distinguishable from those in which workplace injuries were sustained while employment services were being performed. We agree with the respondents.
In White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), which was quoted extensively and with approval by the Pifer court, a claimant on break was injured while on his way to smoke in an area where he could keep an eye on equipment in his work station and could immediately return if necessary. The White court held that the claim, although not compensable under the personal-comfort doctrine, was compensable because employment services were being performed at the time of the injury. The supreme court wrote:
The court of appeals has held that when an employee is doing something that is generally required by his or her employer, the claimant is providing employment services. See Ray v. University of Arkansas, 66 Ark.App. 177, 990 S.W.2d 558 (1999); Shults v. Pulaski County Special Sch. Dist., 63 Ark.App. 171, 976 S.W.2d 339 (1998).
In the present matter, Georgia-Pacific argues that White was on a personal break and not performing any employment services; thus, his injury is not compensable. This argument ignores the fact that someone had to monitor the dryers, whether it be White or a relief worker. Because there was no relief worker provided, White was forced to remain near his immediate work area in order to monitor those machines. If one of the dryers needed to be loaded or his supervisor needed him for some reason, White would have been forced to return to his forklift immediately. Georgia-Pacific’s argument also ignores the fact that White’s supervisor instructed him to take a break “when he could.”
We believe the present situation is analogous to the facts presented in Ray, 66 Ark. App. 177, 990 S.W.2d 558. In Ray, appellant was employed by the University of Arkansas as a food-service worker in a cafeteria. She was entitled to two unpaid thirty-minute breaks and two paid fifteen-minute breaks each day. During one of her paid breaks, appellant slipped and fell as she was getting a snack from the cafeteria for her own personal consumption. The Commission denied appellant’s claim for disability benefits after determining that she was not performing employment services at the time of her injury. The court of appeals reversed the Commission’s decision, noting that [she] was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Based on those facts, the court of appeals held that the employer gleaned benefit from appellant being present and required to aid students on her break. Likewise, in this matter Georgia-Pacific also gleaned benefit from White remaining near his work station in order to monitor the progress of the dryers and immediately return to work if necessary.
339 Ark. at 478-79, 6 S.W.3d at 100-01.
McKinney argues that the activities and situation of this case are similar to those constituting “employment services” in White v. Georgia-Pacific Corp., supra, and Ray v. University of Arkansas, supra. He points to his testimony that he felt an obligation to report or take care of anything askew that he might observe during his break, and that he returned from break-time activities more refreshed and better able to complete his work. We do not find such an analogy. The claimant in Ray was required to aid students on her break, and the claimant in White was forced to remain near his immediate work area in order to monitor machines and immediately return to work if necessary: in each case the employer gleaned benefit from the worker performing, or standing ready to perform, specific activities while on break.
McKinney, on his way to his smoke break, was involved in nothing generally required by his employer and was doing nothing to carry out the employer’s purpose; thus, the employer gleaned no benefit from his activities on break. See Pifer v. Single Source Transp., supra. We reject McKinney’s argument that his left-knee injury was compensable because it occurred during a paid break taken pursuant to a union-negotiated contract. Thus, we affirm the Commission’s finding that the jump and landing that caused the injury did not occur at a time when the claimant was performing employment services.
Affirmed.
Griffen and Crabtree, JJ., agree.
Similarly, in Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002), the supreme court held that the claimant’s restroom break was a necessary function and directly or indirectly advanced the interests of her employer. | [
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Wendell L. Griffen, Judge.
Mary Rodriguez appeals from an order terminating her parental rights with regard to her two daughters. She argues that her due-process rights were violated because the case plan did not specify the actions required to be taken by her to eliminate or to correct the conditions that caused her children to be removed from her home. She further argues that the circuit court erred when it admitted a psychological report because the report contained hearsay. We reverse because the statutorily-required case plan was never admitted as part of the record, and because we agree that the circuit court erred in admitting the psychological report.
Appellant’s two daughters were removed from her custody after appellee, the Arkansas Department of Human Services, filed an emergency petition for custody. Appellee alleged that appellant home-schooled her children, but was not providing a proper education; that the house was infested with fleas, mice, and other animals, and was “piled with trash”; and that one child suffered from an ear infection because appellant refused to take her to the doctor. After numerous dependency-neglect hearings and a termination hearing, appellant’s parental rights were terminated.
During the February 12, 2002 review hearing, appellee objected to the admission of a written psychological profile that was performed by Dr. Paul L. DeYoub, on the ground that the report contained hearsay and did not explain the bases for his conclusions. Appellant also objected to appellee’s case plan on the ground that the plan did not specify the actions that she was required to take to eliminate or correct the conditions that caused the children’s removal. The circuit court overruled her objections.
During the termination hearing that was held on October 29, 2002, appellee presented no additional witnesses. Appellant presented one witness, a caseworker, who testified concerning the reunification services provided by appellee. The court thereafter terminated appellant’s parental rights.
Appellant does not challenge the sufficiency of the evidence used to terminate her parental rights. She simply argues that her due-process rights were violated because the case plan was not specific and that Dr. DeYoub’s report contained inadmissible hearsay. Grounds for termination must be proved by clear and convincing evidence, or evidence that will produce in the fact finder a firm conviction as to the allegation sought to be established. See Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). We will not reverse a finding of termination unless it is clearly erroneous. See Ark. R. Civ. P. 52(a); Johnson v. Arkansas Dep’t of Human. Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. See Gregg v. Arkansas Dep’t of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997).
I. Due Process
Appellant’s first argument is that she was denied due process of law because the appellee failed to comply with Arkansas Code Annotated § 9-27-402(c)(5)(A) (Repl. 2002), which provides that when a juvenile is receiving services in an out-of-home placement, the case plan must include at a minimum, “[t]he specific actions to be taken by the parent, guardian, or custodian of the juvenile to eliminate or correct the identified problems or conditions and the period during which the actions are to be taken.” Appellant maintains that her due-process rights were violated because the case plan did not provide the specific steps that she would be required to take in order to-be reunified with her children.
The existence of the case plan is not in dispute. There was testimony from appellant and a caseworker that the case plan specified that appellant was to allow the children to attend school, to insure that the children received proper medical care, and to maintain suitable housing. Further, Dr. DeYoub noted in his report that there was a case plan and that appellant refused to sign it.
However, we reverse because the trial court erred in determining that appellant’s due-process rights afforded by the statutorily-required case plan had not been violated, even though the case plan was not introduced into evidence. On appeal, we cannot determine whether appellant’s due-process rights have been violated because appellee failed to introduce the case plan as part of the record below. Therefore, the case plan could not be introduced by appellant as part of the record on appeal. We do not consider matters outside of the record. See Boswell, Tucker & Brewster v. Shirron, 324 Ark. 276, 921 S.W.2d 580 (1996). Therefore, we reverse and remand as to appellant’s first point.
II. Hearsay
Appellant’s second argument is that the trial court improperly admitted a court-ordered psychological evaluation report. The report, prepared by Dr. DeYoub, was introduced at the February 12, 2002 review hearing. Because proceedings and orders pertaining to termination are a continuation of a dependency-neglect case, the circuit court may consider the dependency-neglect proceedings when ruling on the issue of termination. See Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
Dr. DeYoub’s report contained information based on interviews with appellant, her daughters, and others, several of whom did not testify at the termination hearing. During the review hearing, appellant’s counsel conceded that Dr. DeYoub was qualified to conduct the evaluation. However, at the beginning of the termination proceeding, appellant objected to the admission of the report on the basis that it contained certain information that was hearsay and that Dr. DeYoub did not explain the bases for many of his conclusions.
The proceedings turned to the subject of whether appellant had complied with the case plan, then the trial judge returned to the issue of the psychological report, stating, “I’ve been reading this psychological evaluation from Dr. DeYoub, and I think he has hit the nail right on the head.” The judge then quoted verbatim from several parts of the report, noting that Dr. DeYoub concluded in his report that appellant had a “personality disorder” in that she was obsessive-compulsive, paranoid, and passive-aggressive; that she was bright, difficult, demanding, obsessive, and uses rationalization and intellectualization as a defense; and that appellant “has problems getting along with people,” and is impaired in “social, occupational and other important areas of functioning.”
When appellant personally objected to the report on the basis of hearsay, the judge instructed her, “Ma’am — ma’am, when I’ve seen it right here with my very own eyes, don’t call it hearsay, because I’ve seen it and my eyes don’t lie.” The judge also stated that Dr. DeYoub “put in writing what I have been thinking for about the past eight months.” Thereafter, appellee moved to admit DeYoub’s report; the judge at that time admitted the report, and appellant again objected.
The error with regard to the report is twofold. First, as appellant asserts, it was inadmissible hearsay. A hearsay statement is a statement, other than one made by the declarant while testifying at the trial or hearing, that is offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). Here, Dr. DeYoub did not testify, but his court-ordered report contained information based on interviews with appellant, her daughters, and others. Because Dr. DeYoub did not testify, it is impossible to determine from the report which of Dr. DeYoub’s conclusions were based on his direct observations of appellant, and which were based on the statements of other persons.
Relatedly, it is impossible to determine which conclusions relied upon by the court were based on hearsay, or even double-hearsay, let alone determine if those statements might still be admissible under one of the exceptions to the hearsay rule, such as, for example, that found in Rule 803(4) of the Arkansas Rules of Evidence. Therefore, it was error for the circuit court to admit Dr. DeYoub’s report. See New Empire Ins. Co. v. Taylor, 235 Ark 758, 352 S.W.2d 4 (1962) (holding the report of doctor who was not present to testify, and whose deposition had not been taken, was properly excluded in action by insured against insurer on accident policy).
Second, the trial judge relied upon Dr. DeYoub’s report to make judgmental statements and to reach conclusions concerning appellant before the report was admitted into evidence. Thus, she improperly treated the report as evidence before it became part of the official record of the case. Accordingly, we hold that the circuit court committed reversible error in admitting Dr. DeYoub’s report.
Reversed and remanded.
Robbins and Neal, JJ., agree.
Pursuant to Arkansas Supreme Court Rule 1-2, we attempted to certify this case to the Arkansas Supreme Court because the case appears to involve two issues of first impression. The first issue is: does a trial court commit reversible error when it relies upon the results of a court-ordered psychological examination before the results are introduced into evidence, and where the psychologist does not testify?The second issue is: what is the proper disposition on appeal where reversal is urged based upon the failure to comply with a statute mandating a case plan in parental-rights-termination cases, but the case plan is not introduced into evidence and thus, is not part of the record on appealFThe Supreme Court denied our request for certification.
Appellant also attempts to raise the issue of authentication of the report for the first time on appeal. Generally, we do not consider arguments raised for the first time on appeal. See Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996). Therefore, we do not address appellant’s argument regarding authentication. | [
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Sam Bird, Judge.
In this unbriefed pro se appeal, Milton Missouri contends that the Board of Review erred when it denied him unemployment benefits on the finding that he voluntarily left last work without good cause connected with the work. Because we hold that reasonable minds could not come to the Board’s conclusion, we reverse the decision and remand for an award of benefits.
The Board’s decision, which adopted and affirmed the decision of the Appeal Tribunal, cited Ark. Code Ann. § 11-10-513 and Ark. Code Ann. § 11-10-514. Under Ark. Code Ann. § ll-10-513(a)(l) (Supp. 2003), 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. Section 11-10-514 (Repl. 2002) states that an individual shall be disqualified for benefits if he or she is discharged from last work for misconduct in connection with the work.
The decision of the Board included these findings of fact:
The claimant was a resident at a resident center and was provided transportation to and from work while several from the center were working for the employer. All the residents of the center left the employer except the claimant. He was no longer provided transportation to work. The claimant moved to Hensley, Arkansas and rode the city buses to and from work during the week. The claimant could not work overtime because his work was done before city buses start running. The claimant could not work on Saturday due to the bus schedules. The claimant quit.
The Board found that appellant should be denied benefits under Ark. Code Ann. § ll-10-513(a).
The Board of Review’s findings of fact are conclusive if they are supported by substantial evidence. Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003). 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. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Appellant testified on his own behalf at the hearing. When asked if he had quit his work, he responded, “Well, no, not in a way.” He stated that he moved home to Hensley after the rehabilitation center quit providing transportation to his job at Lamb and Associates in Maumelle, Arkansas, where he was a laborer. He stated that after he moved back home, he began riding CAT (Central Arkansas Transit) buses from Hensley to his place of employment, but that because the buses did not run in the early morning hours on weekdays and did not run at all on Saturdays, he did not have transportation that met the employer’s early-morning and Saturday overtime schedules.
Appellant testified that because the employer’s assistant plant manager, Greg Fason, knew that he did not have transportation in the early mornings on weekdays or on Saturdays, Fason would assign another worker in appellant’s place when overtime work was scheduled for his shift. Appellant said that one Friday when Fason was not at work, the employer’s plant manager, Jason Kidder, told him that, because he was not able to get to work when he was needed, he would have to make a decision on what he could do, but that there was not much he could do because he could not get a ride. The testimony continued:
Claimant: So I asked him, well, could I work this last day. He told me yeah, so I went to work and he called me hack to his office and told me that I couldn’t work ’cause I was terminated.
H. Officer: Because you were terminated?
Claimant: Yes, sir.
H. Officer: Why would you be terminated?
Claimant: Because I wasn’t able to get there on, transportation on Saturday. See, sometime on Saturday, when I was scheduled to work the day, when they would work overtime on the time that I was scheduled to be there they’d put someone in my place but this Saturday, I don’t know, they just told me that if I couldn’t be there on Saturdays when I was scheduled to work then I just wasn’t able to, you know, keep the job, so I had been doing that for two or three years, they would put someone in my place but, all of a sudden, I just couldn’t get on the bus ’cause the bus don’t run on Saturday out there, and I didn’t have no other means of transportation to get there ... and that was our biggest problem. I live about 40, 50 miles outside a ride, I mean, outside where my company was located at, and the only time I could get there was on the bus.
The bus couldn’t get me there at 7:00 in the morning and sometime we worked overtime, it’d be 4:00 in the morning so a lot of times they’d put someone in my place for those two hours and then on Saturday, put someone out there, period.
So, if I had to work on Saturday, I didn’t have no transportation to get out there.
That was the main thing to it, I guess he said I had to either quit or he had to let mego because when he needed me if I couldn’t be there, you know, he set up his operation, like he said, and he can’t set up the operation if I couldn’t be there, but I didn’t have no other way to get there. The bus don’t run on Saturdays so it’s just out of the question....
(Emphasis added.)
Jason Kidder, the plant manager, testifying on behalf of the employer, stated that appellant had worked for the company a couple of years, that the problem with appellant’s job was transportation, and that appellant’s employment would have continued if he “would have decided” that he could get to work. Kidder testified that the company had worked with appellant “every chance we could get,” but that he was “given the option of having a job or move on” after the following event:
He was scheduled on a Saturday, did not present to me on Friday prior to that he couldn’t be here, you know, so I brought crews in on Saturday. I didn’t feel it was my responsibility to go ask Milton if he was gonna be here or not... and brought my crews in on Saturday and I was short handed. He was part of the three-men crew, and I only had two. When I’m in here working on Saturday I’m paying premium time, as far as overtime, and it’s very important that we run as efficiently as possible.
And this, you know, this time Milton not here [sic], didn’t call in to explain his whereabouts or anything.
After the initial presentation by each party, each was allowed to question the other’s testimony or to testify in rebuttal. Appellant stated, in pertinent part:
Well, usually on a Saturday we had got to the point where, like his assistant, Greg, you wasn’t even asking about that ’cause you know I didn’t have no ride on Saturday, you would just go on and put someone in my place. You know, you (inaudible) then it got to the point where they knew I didn’t have no way to get there on Saturday so Greg would just usually ask somebody else, or, you know, and Greg would say, "Man, just go ahead. I know you can’t make it on Saturdays no way.” Other than that I should have called in or got to the point that I woulda made sure I (inaudible) but we had been doing (inaudible), Greg Fason, so long that we had got to knowing that I couldn’t be there on Saturday so they would automatically get someone put in my place. This particular Saturday I don’t know why they come to me like I would have called in on Friday or I, you know, gotta gofind somebody else when usually that, you know, Greg would put someone in my place automatically, and so I don’t know how they, why they came to be like that on that particular Saturday because usually they would get someone else to put in my place that had transportation to get to the company, like they would do when Fd have to be there at four o’clock in the morning.
(Emphasis added.)
On rebuttal, Kidder testified that he, rather than Greg Fason, was working that Saturday, and that it was his opinion as plant manager that it was not his responsibility “to bring that up.” He testified that he had always told employees that if they could not find a qualified person to work overtime he would not risk productivity, and that employees were responsible for their overtime regardless of whether or not they had transportation.
The Board set forth the following reasoning as the basis of its conclusion that appellant voluntarily left last work without good cause connected with the work:
The claimant quit his job due to not having any transportation. The claimant did not quit due to any condition of the work that would impel the average, able-bodied, otherwise qualified individual to give up the job.
The Board recognized in its decision that appellant rode public buses to get to his job in Maumelle after his residential center had stopped furnishing transportation and he had moved to Hensley. It is clear to us that appellant’s job continued for some time after his move despite his inability to get to the plant for overtime work because of the bus schedule, and that on these occasions another worker was regularly assigned to work in appellant’s place. It is also clear that on a day when the plant manager rather than his assistant was supervising appellant’s shift, appellant was told that he would not be able to keep his job unless he could make accommodations regarding overtime work.
We hold that reasonable minds could not find that appellant quit his work because of the lack of transportation. We hold, rather, that appellant was discharged when the plant manager suddenly decided to discontinue the employer’s practice of providing a substitute worker during hours that appellant could not be present for overtime work. We reverse the Board’s decision that appellant is disqualified for unemployment benefits under Ark. Code Ann. § ll-10-513(a) for leaving his work “voluntarily and without good cause connected with the work.”
Reversed and remanded for an award of benefits.
Hart and Vaught, JJ., agree. | [
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Terry Crabtree, Judge.
Appellants Michael and Lynda Hickman contracted with appellee Kralicek Realty and Construction Company to construct a residence on their property in Sebastian County, Arkansas. The price was to be $376,359.48, which included a “builder’s fee” of $27,878.48, consisting of, among other things, the cost of supervision, overhead, and builder’s fee. Appellants were permitted to choose their own subcontractors for certain items and pay for these expenses directly. When the balance owed was not paid, appellee filed suit seeking a materialman’s Hen for the sum of $97,634.08 and, if not satisfied, for foreclosure of the Hen. Appellants answered, admitting the existence of the contract but denying the remainder of the allegations of the complaint. AppeHants later filed a counterclaim against appellee and pleaded that appellee breached the contract by not informing appellants that the cost of the residence would exceed $376,359.48 and that appellee breached the implied warranty of habitabifity in fading to provide a working septic system for which appellants would spend in excess of $30,000 to repair. In their counterclaim, appellants admitted that, by their calculations, they owed appellee approximately $21,000. Appellee denied the allegations contained in the counterclaim.
Following a bench trial, the trial court ruled from the bench, finding that the contract was a cost-plus contract; that there was a valid materialman’s lien; that appellee was entitled to recover $94,520.92, representing the balance of appellee’s total expenditures and the builder’s fee; that appellants were entitled to an offset of$l,500 for minor construction problems such as paint, the walls, and brick coloration; that appellants were entitled to another $1,500 offset for unaccounted-for material; that appellee breached the implied warranty to supply the residence with a working septic system, granting appellants a credit of $19,675.34; and that appel- lee was entitled to recover costs of $170 and interest from the date of filing its materialman’s lien to the date of trial in the amount of $9,188-18. An amended judgment was entered on December 18, 2002, changing the date from which the interest was calculated to the date of the completion of the construction. This increased the amount of interest awarded to $10,488.07 and the total judgment, after setoffs and credits, in appellee’s favor to $82,507.65. The judgment also ordered an immediate sale of the property. This appeal and cross-appeal followed. Appellants deposited $82,778.03 in an account with Superior Federal, and the trial court approved that deposit as a supersedeas bond.
Appellants argue three points on appeal: that the trial court erred in allowing appellee to amend its pleadings to conform to the proof to allege a breach of contract; that the trial court erred in allowing appellee a lien for sums that included appellee’s profits; and that the trial court erred in holding that appellee’s lien was valid when the lien was based on an ambiguous contract. Appellee argues on cross-appeal that the trial court erred in finding that it breached the implied warranty to provide a working septic system and that the trial court erred in failing to award appellee attorney’s fees.
Equity cases such as lien foreclosure cases are reviewed de novo on appeal. Cannon Remodeling & Painting, Inc. v. The Marketing Co., 79 Ark. App. 432, 90 S.W.3d 5 (2002). We do not reverse a trial court’s findings of fact unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.
As their first point, appellants argue that the trial court erred in allowing the amendment to conform the pleadings to the proof during trial after an objection was made. At the close of its case, appellee made a motion to conform the pleadings to the proof to include a breach-of-contract claim. Appellants objected to the amendment, but the trial court overruled the objection. On appeal, appellants argue that this was error because they were denied a fair chance to defend on a breach-of-contract claim.
Arkansas Rule of Civil Procedure 15 governs the amendment of pleadings. Rule 15(b) states in part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. 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. The court may grant a continuance to enable the objecting party to meet such evidence.
Rule 15 vests broad discretion in the trial court to permit amendment to the pleadings, and the exercise of that discretion by the trial court will be sustained unless it is manifestly abused; and one seeking reversal on that ground must show the manifest abuse of discretion. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). In the present case, the trial court overruled appellants’ objection and stated that it would proceed on appellee’s breach-of-contract claim and appellants’ counterclaim and later determine whether the lien was valid. The trial court also indicated that it viewed the complaint as one requesting judgment for a debt and a lien, which it also asked to be foreclosed. We cannot say that the trial court abused its discretion in allowing the amendment to conform to the proof. First, it appears that the trial court decided the case as a lien claim, not a breach of contract case. Second, appellants did not move for a continuance to meet the new theory. Where neither a continuance was requested nor a demonstration of any prejudice resulting from an amendment was shown, the amendment should be allowed. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). We cannot say that the trial court abused its discretion in permitting the amendment.
For their second point, appellants argue that the trial court erred in allowing appellee a lien for sums that included appellee’s profits. Appellee argues that the builder’s fee covered the work of a person supervising the subcontractors. Diane Hamilton, appel- lee’s bookkeeper, testified that the actual builder’s cost was $222,926.66 and that the builder’s fee was $27,878.48, resulting in a total of $250,805.14. Appellants paid appellee a total of $156,284.22, leaving a balance owed of $94,520.92. She testified that the builder’s fee covered the supervision of the project and other services of the office. Elmer Kralicek testified that the builder’s fee covered workers’ compensation insurance, general liability insurance, project supervision, overhead, and profit. He testified that appellant Lynda Hickman wanted a fixed bid on the builder’s fee, instead of a fee based on a percentage of the cost, because she realized that she would exceed the contract allowance on some items and did not want to be penalized by paying appellee a larger fee.
The Arkansas Supreme Court has held that the mechanics’ and materialmens’ lien statute, Ark. Code Ann. §§ 18-44-101 through 135 (1987 & Supp. 2003), gives a lien to the person who performs the labor and not to the person who hires labor performed and pays for it. Middleton v. Watkins Hardware Co., 196 Ark. 133, 116 S.W.2d 1043 (1938); see also Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000). The supreme court has construed the materialmens’ lien statute as not extending to the contractor’s profits or bonus. Withrow v. Wright, 215 Ark. 654, 222 S.W.2d 809 (1949); Cook v. Moore, 152 Ark. 590, 239 S.W. 750 (1922); Royal Theater Co. v. Collins, 102 Ark. 539, 144 S.W. 919 (1912). Section 18-44-101(a) was amended in 1995 and now provides in part:
Every contractor, subcontractor, or material supplier ... who supplies labor, services, material, fixtures... in the construction or repair of an improvement to real estate ... by virtue of a contract with the owner . . . upon complying with the provisions of this subchapter, shall have ... a lien upon the improvement and on up to one (1) acre of land upon which the improvement is situated. . . .
(Emphasis added.)
As amended in 1995, the statute now specifically includes a contractor’s services as an item covered by a materialmen’s lien. Only one reported case has considered the scope of the amended statute. In Simmons First Bank, supra, the supreme court considered a request for a lien for both the services of a contractor’s office personnel and the contractor himself under the amended statute. There, the supreme court assumed without deciding that the amended statute provided for office support personnel and supervision services within its reach. The supreme court affirmed the trial court’s denial of a lien for these items on the basis that the abstract was deficient on the time records of the office personnel and that the trial court was not clearly erroneous in finding that the time the contractor spent on the job was speculative.
The trial court found that the contract was a cost-plus contract and allowed appellee credit for its builder’s fee, before offsetting the award with setoffs and the credit for appellants’ counterclaim. This court has held that the lien provided by section 18-44-101 does not extend to profits on this type of contract, only to the costs of labor and material. Wells v. Griffin, 266 Ark. 763, 586 S.W.2d 239 (Ark. App. 1979). Here, the trial court allowed appellee the full amount of its claim, which included the builder’s fee without segregating the builder’s fee or any profits. We reverse and remand for a determination of the cost of the services, labor, and materials that appellee actually furnished and used in the house and disallow appellee a lien for its profits.
In their third point, appellants argue that the trial court erred in holding that appellee’s lien was valid because the lien was based on an ambiguous contract. At trial, the parties stipulated that the contract was ambiguous and that parol evidence could be admitted to explain the ambiguity. Appellants argue that, because the contract is ambiguous and any ambiguity is construed against the drafter (in this case, appellee), the trial court erred in finding that appellee had a valid lien. The basis of appellants’ argument is that, according to Lynda Hickman’s testimony, appellants have paid $383,208.63 for the house and, therefore, if the contract was a fixed-price contract, then appellee is not entitled to a lien because appellee is not due any further payment.
Where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. Brown & Hackney v. Daubs, 139 Ark. 53, 213 S.W. 4 (1919). The parties stipulated that the contract was ambiguous. Here, the trial court, after considering the parol evidence, including testimony that the contract had features of both a cost-plus contract as well as a fixed-price contract, found that the only conclusion possible was that the contract was a cost-plus contract. The rule that, where there is any doubt or ambiguity about the meaning of a contract, an ambiguity in the contract will be resolved against the party who prepared the contract is not to be applied until and unless doubt exists after the court has given consideration to the parol evidence admitted to explain and aid in the interpretation of ambiguities in the contract. Jefferson Square, Inc. v. Hart Shoes, Inc., 239 Ark. 129, 388 S.W.2d 902 (1965). The trial court’s findings do not indicate that the trial court entertained any doubt as to the meaning of the contract after considering the parol evidence. Therefore, there is no need to construe the contract against appellee. If the contract was ambiguous, as the parties stipulated, then its meaning would be a question of fact for the trial court to determine. Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000); Vaccaro v. Smith, 29 Ark. App. 175, 779 S.W.2d 193 (1989). An agreement, whether written or oral, is not rendered unenforceable because its terms are vague or uncertain. See, e.g., Swafford v. Sealtest Foods, 252 Ark. 1182, 483 S.W.2d 202 (1972). We cannot say that the trial court’s finding that this was a cost-plus contract was clearly erroneous.
Appellee raises two points on cross-appeal: that the trial court erred in finding that appellee breached an implied warranty to provide a working septic system and that the trial court erred in not granting appellee its attorney’s fees.
For its first point, appellee argues that the trial court erred in finding that appellee breached an implied warranty to provide a working septic system. Appellee argues that, in a cost-plus contract, a builder is not liable for unforeseeable costs associated with the contract. We agree and hold that the trial court erred in allowing an offset for the breach of the implied warranty in this case because such a finding is inconsistent with the trial court’s finding that this was a cost-plus contract.
There was testimony that Lynda Hickman, not appellee, assumed responsibility for the septic system by hiring A1 Prieur to conduct a percolation test and hiring a subcontractor to install the system. A second subcontractor was hired to install a more elaborate system after it was determined that the first subcontractor was unable to properly install such a system. Because this is a cost-plus contract, appellants were the ones obligated to pay all unforeseen costs over appellee’s bid incurred in installing the septic system. See Vaccaro v. Smith, supra; Midwest Envtl. Consulting & Remediation Servs., Inc. v. Peoples Bank, 251 Ill. App. 3d 256, 620 N.E.2d 469 (1993). Further, because appellants knew during construction that the system was defective, they could not recover for breach of implied warranty. See Bankston v. McKenzie, 287 Ark. 350, 698 S.W.2d 799 (1985). We reverse and remand with directions to disallow the offset for $19,675.34 for the septic system.
As its second point on cross-appeal, appellee argues that the trial court erred in failing to award it attorney’s fees. The trial court denied fees to either party because both parties had prevailed in part on their claims. Appellee cites Ark. Code Ann. § 16-22-308 (1999), the general statute for fees in a breach-of-contract case, in support of its argument. Appellants respond that the trial court did not abuse its discretion and cite Transportation Properties, Inc. v. Central Glass & Mirror, 38 Ark. App. 60, 827 S.W.2d 667 (1992), for the proposition that attorney’s fees are not recoverable in actions to foreclose a materialman’s lien. We find, however, that Transportation Properties, Inc., is not controlling because in this case appellee presented a claim for breach of contract. The trial court here denied fees to either party because both parties had prevailed on their claims. Because we have reversed the claim on which appellants prevailed, on remand, the trial court may reconsider its decision with regard to fees.
Affirmed in part; reversed and remanded in part on direct appeal.
Reversed and remanded on cross-appeal.
Vaught and Baker, JJ., agree.
The complaint also named as a defendant Superior Federal Bank, the holder of the mortgage on the property. Superior Federal was dismissed by appellee’s taking a non-suit.
Appellants also moved for a directed verdict on the validity of the materialman’s lien claim.The trial court denied the motion. Appellants do not challenge the denial of the motion for directed verdict on appeal.
In Shaw v. Rackensack Apartment Corp., 174 Ark. 492, 295 S.W. 966 (1927), the court distinguished between cost-plus contracts and fixed-price contracts and allowed a lien to include profits in a fixed-price contract. IVeils followed Shaw as to one of the Hen claimants who had a fixed-price contract.
Appellee, on its breach-oficontract claim, can recover judgment for the full amount of its builder’s fee. However, the Hen does not extend to appellee’s profits. See Withrow v. Wright, 215 Ark. 654, 222 S.W.2d 809 (1949).
The testimony was disputed as to whether Elmer Kralicek recommended that appellants use Prieur for the percolation test.
We express no opinion on the applicability of Ark. Code Ann. § 18-44-128 (Supp. 2003), since appellee did not claim below and has not contended in this appeal that it is entitled to fees under this statute. However, on remand, the trial court is free to consider this statute in deciding whether or not a fee is warranted. | [
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John B. Robbins, Judge.
Appellant Frederick Daniels was convicted by a jury of second-offense driving while intoxicated. He was sentenced to 104 days in jail and fined $400.00. Mr. Daniels appeals from his DWI conviction, arguing that the trial court erred in admitting evidence that he failed a portable breath test. Mr. Daniels further argues that the trial court erred in admitting the result of the breathalyzer test taken at the police station. W e agree with both of appellant’s arguments, and we reverse his DWI conviction.
Prior to trial, Mr. Daniels filed a motion in limine asking the trial court to suppress evidence of the breathalyzer test result, which was .10. A pretrial hearing was held on appellant’s motion, and at the hearing Mr. Daniels argued that the test result was inadmissible because there was not full compliance with Ark. Code Ann. § 5-65-204(e) (Supp. 2003), which provides:
(e)(1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(2) The law enforcement officer shall advise the person in writing of this right and that if the person chooses to have an additional test and the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test.
(3) The refusal or failure of a law enforcement officer to advise a person of this right and to permit and assist the person to obtain a test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
At the hearing, Mr. Daniels acknowledged that he was advised in writing that he could have another test at his own expense, and that he declined any additional test. However, he testified that he was not advised that he would be reimbursed for the additional test if found not guilty, and that had he been given this advice he would have taken an additional test. At the conclusion of the hearing the trial court denied appellant’s motion to suppress the evidence, stating, “There may have been a technical failure here, but I don’t consider it to be a substantial failure to comply with the statute, such that would in all cases require the court to refuse to let the test results in.”
At the trial, Officer Matthew Williams testified for the State. He stated that on October 14, 2001, he stopped Mr. Daniels for speeding. Officer Williams stated that, after he stopped the car, Mr. Daniels crawled over his wife in the passenger’s seat and exited from the passenger’s side of the vehicle. When Officer Williams made contact, he smelled an odor of intoxicants on Mr. Daniels, and noticed that Mr. Daniels was swaying, had bloodshot eyes, and his speech was slurred. Mr. Daniels admitted to Officer Williams that he had drunk several beers. According to Officer Williams, Mr. Daniels “had all six clues on the HGN test.” Officer Williams attempted to perform other field sobriety tests, but did not do so because Mr. Daniels told him he had a leg injury.
Over appellant’s objection, Officer Williams was permitted to testify that Mr. Daniels failed a portable breath test. Officer Williams further testified that the result of the breathalyzer taken at the station was .10.
Mr. Daniels and his wife testified on his behalf. Both of them testified that he had been drinking beer, but was not drunk, on the night of his arrest.
Mr. Daniels’s first argument for reversal is that the trial Court erred in admitting evidence that he failed a portable breath test. He acknowledges that it may not be error to permit an officer to testify that he used a portable breath test in his investigation. However, Mr. Daniels asserts that testimony that he failed the breath test raised the unfair inference that the results exceeded the legal limit.
Mr. Daniels also argues that the result of the breathalyzer test administered at the police station should have been suppressed. He cites Ark. Code Ann. § 5-65-203(b)(2) (Supp. 2003), which provides:
If the person tested requests that additional tests be made, as authorized in § 5-65-204(e), the cost of the additional tests shall be borne by the person tested, unless the person is found not guilty, in which case the arresting law enforcement agency shall reimburse the person for the cost of the additional tests.
Arkansas Code Annotated section 5-65-204(e)(2) (Supp. 2003) provides that the officer shall advise the person in writing of his right to an additional test, and further advise that if the person chooses to have an additional test and is found not guilty, he will be reimbursed for the cost of the additional test. Because the police failed to inform him that he would be reimbursed for the cost of an additional test upon being found not guilty, Mr. Daniels contends that the result of the test taken at the direction of the law enforcement officer was inadmissible under the clear provisions of Ark. Code Ann. § 5-65-204(e)(3).
We agree that the trial court erred in allowing the State to introduce evidence that Mr. Daniels failed the portable breath test. A chemical analysis that has not been certified by the Department of Health is not admissible as evidence of driving while intoxicated. Ark. Code Ann. § 5-65-206(c) & (d) (Supp. 2003); see also Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). Portable breathalyzer tests have not been certified by the Department of Health. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Thus, the ruling of the trial court admitting evidence of the portable breathalyzer test result was erroneous. See id.
We further hold that the trial court erred in admitting the .10 result of the breathalyzer test administered at the police station. In 2001, our legislature amended Ark. Code Ann. § 5-65-204(e). The amended version of the statute explicitly provides that the officer shall advise the person “that if the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test,” and that failure to advise a person of this right “shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.” Ark. Code Ann. § 5-65-204(d)(2) & (3) (Supp. 2003).
The trial court ruled, and the State argues on appeal, that the breathalyzer result was admissible because there was substantial compliance with the applicable statute. Substantial compliance with the statutory provision about the advice that must be given is all that is required. Lampkin v. State, 81 Ark. App. 434, 105 S.W.3d 363 (2003). In the instant case, the officer complied with part of the statute by advising Mr. Daniels that he could have an additional test at his own expense, and by offéring to assist him in obtaining one. However, it is undisputed that there was no compliance at all with requirement that appellant be advised that he would be reimbursed for the cost of the test if found not guilty. Thus, we reject the substantial-compliance argument now being raised by the State.
If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003). The supreme court construes criminal statutes strictly, resolving any doubts in favor of the defendant. Id. The provisions of Ark. Code Ann. § 5-65-204(e) (Supp. 2003) are clear, and because there was a failure of compliance, we are constrained to reverse the trial court’s admission of the breathalyzer test result.
Finally, we address the State’s contention that, even if admission of the portable breath test was error, such error was harmless in light of the overwhelming evidence of appellant’s guilt. For this proposition, the State relies on Massengale v. State, supra. The State asserts that there were other factors indicative of appellant’s guilt, including the .10 breathalyzer result.
We do not agree that admission of the portable breath test result amounted to harmless error. In Massengale v. State, supra, the supreme court held that admission of an unsatisfactory portable breathalyzer test was harmless in light of other overwhelming admissible evidence, which included Mr. Massengale’s refusal to submit to a certified breathalyzer test. In the case at bar, Mr. Daniels submitted to the certified test, but we now hold that the result should not have been admitted. Arkansas Code Annotated § 5-65-103 (Supp. 2003) criminalizes driving while intoxicated, and provides:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
Pursuant to our resolution of the evidentiary issues presented in this appeal, the State failed to offer any competent evidence to prove a violation of subsection (b) of the above statute. While the State did introduce competent evidence ofMr. Daniels’s intoxication, we hold that this evidence was not so overwhelming as to render the trial court’s errors harmless.
Reversed and remanded.
Vaught and Crabtree, JJ., agree. | [
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BIRD, Judge.
On October 9, 1990, James and Jeannie Pentz (Pentz) entered into a contract to purchase a convenience store from Al and Chris Romine (Romine) for $325,000. The contract required Pentz to make a down payment of $4,000 and monthly payments of $3,300, including interest, until the balance of the purchase price was paid. The contract contained a provision stating that the property was not to be “sold, mortgaged, assigned, or in any way encumbered or hypothecated without the prior written consent of the seller.” In 1996, Pentz found a buyer for the store, Marable-Stone, Inc. (MSI), who offered to pay Pentz $290,000 more than Pentz had agreed to pay Romine for the property. Pentz and MSI agreed to a lease-purchase plan by which MSI was to pay Pentz a $50,000 down payment, followed by monthly lease payments of $3,446 for 179 months. At the end of the 179-month term, MSI would have an option to purchase the property upon payment of an additional $3,500.
Romine refused to consent to the Pentzes’ lease of the property to MSI and threatened to sue MSI if it leased the property from Pentz without Romine’s permission. Pentz discontinued his monthly payments to Romine and brought suit against Romine, alleging that Romine tortiously interfered with his contractual relations with MSI and that Romine had wrongfully withheld consent to the lease-purchase agreement with MSI. In the same action, Pentz also sued MSI for specific performance of the lease-purchase agreement. Romine counterclaimed, seeking foreclosure on the property. Pentz then voluntarily nonsuited his complaint against Romine. The parties litigated the Pentzes’ complaint against MSI for specific performance and Romine’s counterclaim for foreclosure.
The trial court dismissed the Pentzes’ claim against MSI for specific performance, finding that the lease-purchase agreement lacked essential elements of a contract. The court also ruled that Pentz had breached the contract with Romine by failing to make any payments since April 12, 1996, and by failing to pay real-property taxes and maintain insurance coverage on the property, and ordered the property sold. Following the Pentzes’ unsuccessful appeal, see Pentz v. Romine, 62 Ark. App. 12, 966 S.W.2d 934 (1998), Pentz filed the present action against Romine for breach of contract, alleging that Romine was aware that MSI would be a responsible tenant but, nevertheless, objected to the lease-purchase arrangement and threatened to sue MSI if they entered into the lease-purchase; and that Romine acted in bad faith because the real reason consent was withheld was to enable Romine to regain the store and sell to MSI.
Romine filed a motion to dismiss, contending that the suit was barred by res judicata because the breach of contract cause of action was a compulsory counterclaim to the prior foreclosure suit and was not raised in that suit. The court granted Romine’s motion to dismiss, finding that the Pentzes’ nonsuited complaint in the first action did not state a cause of action for breach of contract; thus, the present breach of contract claim was barred by res judicata because it was a compulsory counterclaim to the foreclosure suit.
Sufficiency of the Complaint
The dispositive issue of this case is whether the non-suited complaint in the first action asserted a cause of action for breach of contract. A nonsuited complaint may be refiled within the time permitted by the statute of limitations or one year, whichever is longer. See Ark. Code Ann. § 16-56-126 (1987); Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). Pentz filed his present complaint within the time allowed by the statute of limitations. When a complaint is filed subsequent to a nonsuit of the same complaint, it is well established under Arkansas law that, even though the prior complaint may have been a compulsory counterclaim to a claim brought within the original suit, it is not barred by res judicata. Our supreme court has clearly held that the nonsuiting of a complaint or a counterclaim prevents the application of res judicata due to the absolute right of a party to nonsuit that is granted under Ark. R. Civ. P. 41. See Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991) (holding that a nonsuited malpractice claim, which would be a compulsory counterclaim to the claim for attorney’s fees which was presented as a counterclaim, could be filed again without res judicata consequences); Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000) (applying the same law to nonsuited counterclaims). Therefore, if the nonsuited complaint asserted a breach of contract cause of action, then under Linn, the present complaint is not barred by res judicata.
Pentz argues that his nonsuited complaint against Romine should be liberally construed so as to assert a breach-of-contract action. It is well recognized that pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of the obligations. Bethel Baptist Church v. Church Mut. Ins. Co., 54 Ark. App. 262, 924 S.W.2d 494 (1996). The Pentzes’ nonsuited complaint clearly asserted a breach-of-contract cause of action against MSI when the complaint stated that MSI “failed and refused to specifically perform their contractual obligations with the plaintiffs.” However, as against Romine, even construing the complaint liberally, there was no allegation of a breach of contract. The complaint alleged that the actions of Romine constituted tortious interference with contractual relations. At no point in the complaint did Pentz allege that Romine had a contractual obligation to give consent to the lease and that the refusal of consent constituted a breach of that obligation.
Even though we interpret pleadings liberally, the pleadings must advise the adverse party of its obligation and allege a breach of the obligation. See id. The nonsuited complaint does not meet this test. The complaint clearly alleged tortious interference with a contract. That Romine “wrongfully withheld consent” is most logically interpreted as an allegation of the means by which Romine allegedly interfered with the contract between Pentz and MSI. Thus, there was no notice to Romine that by withholding consent, a contractual obligation was breached. Furthermore, there is nothing in the Pentz-Romine contract that imposed any obligation on Romine not to withhold consent; rather, the contract prohibited transfer of the property by Pentz without Romine’s consent. Therefore, a liberal interpretation of the pleadings cannot encompass a breach-of-contract claim against Romine because no allegations in the complaint provided sufficient notice to Romine of a contractual obligation and a breach of such obligation.
Compulsory Counterclaim
Arkansas Rule of Civil Procedure 13(a) states that:
[a] pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . .
In Linn v. NationsBank, supra, the predecessor-in-interest to NationsBank contracted to provide construction financing loans to the Linns. After construction was complete, a dispute arose over the terms of the permanent financing and the Linns discontinued making interest payments on the construction loan. The bank filed a foreclosure action and the Linns counterclaimed with breach of contract and other claims. The foreclosure was granted, as well as the Linns’ motion to nonsuit their counterclaims. The Linns then filed suit again, alleging the same causes of action as originally asserted in their counterclaim, and additionally including breach-of-good-faith and breach-of-fiduciary-duty causes of action, which were not raised in the original suit.
The court dismissed the breach-of-good-faith and breach-of-fiduciary-duty causes of action because it found that these newly brought causes of action were compulsory counterclaims to the foreclosure action and thus barred by res judicata. In discussing compulsory counterclaims, the court stated that “the purpose for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances.” Id. The court found that the newly raised breach-of-good-faith and breach-of-fiduciary-duty causes of action were compulsory counterclaims because “[the claims] arise directly from the financing transactions and a logical relationship exists between the foreclosure, the counterclaim, and the subsequent complaint.” Id.
The present breach-of-contract claim was a compulsory counterclaim to the foreclosure action. The foreclosure action arose from the failure of Pentz to meet his contractual obligation to pay Romine the agreed payments on the real estate. An allegation that Romine breached that same contract would be a compulsory counterclaim because, as Rule 13 articulates, the alleged breach arose out of the same transaction or occurrence and would not require the presence of third parties over which the court could not obtain jurisdiction. A logical relationship existed between the foreclosure action and the alleged breach-of-contract claim, for both claims arose from an alleged breach of the same sales contract.
Res Judicata
Because the breach-of-contract claim was not pled in the foreclosure action, it is now barred by the claim-preclusion element of res judicata. Claim preclusion forecloses relitigation in a subsequent suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action; and (5) both suits involved the same parties or their privies. Id. Additionally, claim preclusion bars not only the relitigation of issues that were actually litigated in the first suit but also those that could have been litigated, but were not. Id. A party is obligated to assert compulsory counterclaims or be precluded through res judicata from raising them in a subsequent action. Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987); Olmstead v. Rosedale Bldg. & Supply, 229 Ark. 61, 313 S.W.2d 235 (1958). When the case at bar is based on the same events and subject matter as the previous case, the trial court is correct to find the present case is barred by res judicata. See Arkansas La. Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993). One of the main purposes of the doctrine of res judicata is to put an end to litigation by precluding a party who has had the opportunity for one fair trial from drawing the same controversy into issue a second time before the same or different court. Bankston v. McKenzie, 288 Ark. 65, 702 S.W.2d 14 (1986).
The court had proper jurisdiction over the foreclosure action, and it resulted in a judgment on the merits. There is no assertion that the action was not defended in good faith. As discussed previously, the breach-of-contract claim presendy asserted by Pentz involved the same cause of action that should have been raised as a counterclaim in the previous suit, but was not, thus constituting a waived compulsory counterclaim. The present suit and the foreclosure action involved both Romine and Pentz, the same parties as in the prior suit. Therefore, the claim-preclusion element of res judicata forecloses relitigation of the Pentzes’ breach-of-contract claim in the present suit.
Summary
The nonsuited complaint did not allege a breach-of-contract cause of action. The breach-of-contract cause of action asserted in the present suit arose out of the same contract from which the foreclosure action arose in the nonsuited lawsuit, and a logical relationship existed between the foreclosure action and the Pentzes’ breach-of-contract cause of action. Thus, the Pentzes’ breach-of-contract cause of action was a compulsory counterclaim to Romine’s foreclosure action. Therefore, because the compulsory counterclaim was not raised in the previous foreclosure action, Pentz is barred from raising it in a subsequent suit; accordingly, we affirm the trial court’s dismissal of the case on the ground of res judicata.
Affirmed.
Griffen and Crabtree, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
In investigating a number of thefts, deputies of the Pope County Sheriff’s Office were told that the thieves had traded much of the stolen merchandise to the appellant for marijuana. The officers obtained a search warrant based on the affidavit of one of the admitted thieves, searched appellant’s home, and found numerous items that were listed in the warrant. During the search they noticed other items they remembered had been reported as stolen. They then obtained another warrant and seized these additional items. Appellant was arrested on February 9, 1981, and on October 26, 1982, was convicted of theft by receiving.
On appeal it is argued that the first search warrant was illegally obtained because the affidavit was not sworn to under oath. The affidavit states on its face that it was subscribed and sworn to before Municipal Judge Richard Peel, and the judge testified that he questioned the witness, Terry Pratt, about the content of the affidavit, asked if the statements therein were true, and had Pratt sign in his presence. He admitted, however, that he probably did not require the witness to raise his right hand and state orally that the statements in the affidavit were “the truth, the whole truth, and nothing but the truth, so help me God.” We do not think this was necessary.
In Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924), the appellant was convicted of making a false affidavit. The trial court had refused to instruct the jury in regard to the manner of administering oaths as set out in what is now Ark. Stat. Ann. §§ 40-101 & 102 (Repl. 1962). Those sections provide that one may swear by uplifted hand or by laying a hand on and kissing the Gospels, but the court held that these were not the only methods by which oaths could be administered. The court said:
So here we think if appellant signed the affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing the affidavit as a method of making affirmation, the j ury was warranted in finding that appellant was sworn. Fortenheim v. Claflin, Allen & Co., 47 Ark. 53.
Cox v. State was quoted with approval in A and B v.C and D, 239 Ark. 406, 390 S.W.2d 116 (1965). In addition, Ark. Stat. Ann. § 41-2601 (3) (Repl. 1977), reads as follows:
“Oath” means swearing, affirming and every other mode authorized by law of attesting to the truth of that which is stated. Written statements shall be treated as if made under oath if:
(b) the statement recites that it was made under oath, and the declarant was aware of such recitation at the time he signed the statement and intended that the statement should be considered a sworn statement;
Pratt admitted he signed the affidavit in the presence of the municipal judge, and the affidavit states “I, Terry Pratt, being duly sworn on oath, do solemnly swear... ’’Although it is the state’s burden to establish that the warrant was issued in compliance with the law, Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), when we review the trial court’s ruling we make an independent determination based upon a totality of the circumstances, and do not reverse the trial court’s finding unless it is clearly against the preponderance of the evidence. Grant v. State, 267 Ark. 50, 57, 589 S.W.2d 11 (1979). While a more formal procedure of administering the oath might be more appropriate, considering the evidence and law set out above, we find no reversible error in the trial court’s ruling as far as the making of the affidavit under oath is concerned.
Likewise, we find no reversible error, individually or collectively, in the other attacks made upon the search warrant. We do not agree that the affidavit merely stated conclusions; and in view of the fact that the warrant described appellant’s house as the Charles “Tubby” Wilson residence, Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977), and the more particularized description in the affidavit, Baxter v. State, 262 Ark. 303, 311, 556 S.W.2d 428 (1977), we do not agree that the description of the premises to be searched was inadequate.
Appellant says there was no finding of probable cause to issue the warrant, but the warrant states on its face that the magistrate found probable cause. Moreover, it has been held that the magistrate’s actual issuance of the search warrant established his finding of probable cause even more positively than the insertion of a conclusory finding to that effect would have, Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977).
It is also argued that we should invalidate the warrant because there was no return on the face of it. The return, however, was attached to the warrant and we know no rule or reason that would prevent the return being made on a separate, attached document. Appellant also says the officer did not swear to the contents of the return, but his signature appears under the statement, “I swear that this inventory is a true and detailed account of all the property taken by me” and it is signed by the municipal judge under the line that states, “Subscribed and sworn to before me . . . . ” Again, there was no formal oath-taking and the return probably was not signed in the judge’s presence, but substantial compliance with the requirement of A.R.Cr.P. Rule 13.4(b) that a “verified” return be made was all that was necessary, Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977), and we cannot say that the trial court erred in holding against appellant on this point.
Appellant next says the testimony of Pratt differed at the suppression hearing from what was in his affidavit. In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court said:
[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
The holding in Franks v. Delaware was applied by the Arkansas Supreme Court in Brown v. State, 264 Ark. 248, 570 S.W.2d 251 (1978). In the instant case, Pratt’s testimony at the suppression hearing was certainly ambiguous and contradictory. In his affidavit he said the property described was stolen by him and personally delivered to the appellant’s home and was still there the last time he was there. At the suppression hearing, he agreed with both prosecuting attorney and defense counsel and vacillated between confirming and rejecting the facts set out in his affidavit. We must defer to the superior position of the trial court to pass upon the credibility of witnesses, Grant v. State, supra, therefore, it was up to that court to decide which version of Pratt’s testimony should be believed. Applying Franks v. Delaware to this situation, we think the appellant has failed to establish by a preponderance of the evidence that the affidavit contained a false statement knowingly and intentionally made or made with reckless disregard for the truth.
Appellant also says the affidavit signed by Pratt was prepared for the signature of Pratt’s accomplice in the theft of the stolen property. There were actually two affidavits prepared — one for each man to sign — and the warrant was prepared to be based upon the affidavits of both of them. Judge Peel testified, however, that he removed the other name from the warrant and that it was based solely on the affidavit signed by Pratt. The United States Supreme Court has said that affidavits for search warrants must be tested in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102 (1965). We find no error in the issuance of the warrant based upon the affidavit signed by Pratt.
The second point urged for reversal is that the trial court erred in refusing to dismiss the information because the defendant was not'brought to trial within 18 months as required by A.R.Cr.P. Rule 28.1 (c), Ark. Stat. Ann. Vol. 4A (Supp. 1983). The information charging appellant was filed on February 6, 1981, but appellant was not arrested until February 9, 1981, and under A.R.Cr.P. Rule 28.2 (a), the 18 months started running on the day the charge was filed. He was tried on October 26, 1982, so the time from the date he was charged to date of trial is less than 21 months. Under A.R.Cr.P. Rule 28.3 certain periods are excluded in computing the time for trial. Thus, if as much as 3 months was excludable, appellant was brought to trial within the 18-month period.
The state has the burden of proving good cause for any delay in the trial or that the delay was legally justified. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). Several reasons are argued by the state to show good cause for the delay in this case, but we need consider only one of them.
From the record the trial court could have found that the appellant, who was on bond, disappeared prior to November 25, 1981. His case was set for trial on November 16, 1981, and his attorney testified that he wrote appellant on October 28, 1981, advising him of the trial date, but appellant did not respond to the letter. Approximately two days before trial date, the attorney was advised by appellant’s wife that she did not know where the appellant was. The case was then passed to November 25, 1981. On that date the appellant did not appear and his attorney informed the court that he could not be located. The suppression hearing was held that day and the trial was passed. In February of 1982, appellant’s bond was forfeited. Eventually, it was learned that appellant was in the State of Washington and extradition documents were executed in July of 1982. The deputy prosecuting attorney testified that appellant fought extradition and was finally brought back to Arkansas on September 28, 1982.
The period of delay resulting from the absence of a defendant is excludable under A.R.Cr.P. Rule 28.3 (e). See also, Williams v. State, supra; and Faulk v. State, 261 Ark. 543, 551 S.W.2d 194 (1977), appeal dismissed, 434 U.S. 804 (1977). From November 25, 1981, to September 28, 1982, is over 10 months. Clearly, the trial which was held within 21 months of the date on which he was charged, was held within the required 18 months when appellant’s 10-month absence is excluded.
As his final argument for reversal, appellant contends that the trial court erred in failing to direct a verdict in his favor with reference to a stereo and two speakers and some bedroom furniture. A directed verdict is proper only when no fact issue exists, and on appeal we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the jury’s verdict. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978); Balentine v. State, 259 Ark. 590, 535 S.W.2d 221 (1976).
The possession of recently stolen property, if not satisfactorily explained to the jury, is sufficient to sustain a conviction of theft by receiving. Patterson v. State, 253 Ark. 393, 486 S.W.2d 19 (1972); Riley v. State, 267 Ark. 916, 593 S.W.2d 45 (Ark. App. 1979). There was testimony from the admitted burglars that among the things they had stolen and taken to appellant were a stereo and two speakers, and that he had given them marijuana in exchange for some of the merchandise they took him. A man from whom a stereo and two speakers had been stolen testified that the items found at appellant’s house looked like the ones stolen from him. From these circumstances, the jury could have found that the appellant had good reason to believe that the stereo and speakers were stolen. Fioranelli v. State, 270 Ark. 470, 605 S.W.2d 13 (1980).
Appellant says he received the bedroom furniture from a couple in exchange for a car he had for sale and asserts he had no reason to suspect it was stolen. He also questions its identification. The bedroom furniture consisted of a vanity-type dresser with stool, cedar chest, and a chest of drawers. It was antique with a distinctive pattern. Officer Taylor testified that he had seen the matching headboard when the rest of the set was first reported stolen and he recognized the same pattern on the furniture in appellant’s home. He also testified that he was somewhat of an antique buff and had never seen the same pattern in any antique store. A witness identified the furniture from photographs taken by the police as being identical to certain furniture stolen from his deceased aunt’s home shortly after her death. He was the administrator of her estate and was familiar with the furniture. We think the identification of this furniture was adequate to establish that it had been stolen from the home of the witness’s aunt. The appellant’s possession was circumstantial evidence but that does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which a fact may be inferred, Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982), and the jury was not required to believe the appellant’s explanation that he traded a car for the furniture.
The stereo, speakers, and furniture were only a portion of the items which appellant was charged with receiving in violation of the law. Only one information was filed as to all the items. We find the case was properly submitted to the j ury on all the items set out in the information and that there is substantial evidence to support the jury’s verdict.
Affirmed.
Cooper and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
In this Workers’ Compensation case, appellants’ arguments for reversal center around whether they controverted appellee’s claim. The Commission affirmed the administrative law judge’s decision that appellants, commencing October 15, 1981, controverted appellee’s claim for temporary total disability benefits, but it reversed that part of the law judge’s finding that the controversion had ceased upon appellant’s reinstatement of benefits. We affirm the Commission’s holdings on both points.
First, appellants contend there is no substantial evidence to support controversion. Our review of the record reveals just the opposite. In reviewing the evidence, we are guided by the principle announced in Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976), that the determination whether a claim was controverted is a question of fact for the Commission. See also Hamrick v. Colson Company, 271 Ark. 740, 610 S.W.2d 281 (1981). The Commission’s decision on controversion will not be disturbed if it is supported by substantial evidence. Aluminum Company of America v. Henning, supra. Here, appellee sustained an injury on January 9, 1980, and accepting the injury as compensable, appellants promptly paid appellee temporary total disability benefits. Dr. Dubose Murray initially treated appellee’s injury, finding he suffered from a compression fracture of his dorsal spine. Because Murray failed to communicate with appellants, they referred appel-lee to Dr. Richard Logue. After examining appellee on October 10, 1980, Logue concluded appellee had recovered from his injury and that, with a vigorous exercise program, he could return to work in four to six weeks.
Dissatisfied with Dr. Logue’s evaluation, appellee saw other physicians, one of whom was Dr. Dale Kincheloe. Dr. Kincheloe first saw appellee on June 8,1981, but it is unclear when appellants first learned that Kincheloe was treating appellee. Nonetheless, appellants admittedly paid Kinche-loe’s bills for his treatment of appellee, and they conceded that they received a short letter dated October 1, 1981, from Kincheloe, reflecting that he had seen appellee since June 8, 1981, and that appellee would be unable to work for three months. Prior to receiving Kincheloe’s October 1 letter, appellants had terminated appellee’s benefits on July 10, 1981, because on that date appellee declined to keep an appointment for a second evaluation by Dr. Logue. On October 15, 1981, appellee filed his claim, alleging his benefits had been controverted.
Appellants argue that they did not consider Dr. Kinche-loe’s letter of October 1, 1981, a medical report; therefore they found it unnecessary to reinstate benefits. Admittedly brief, Kincheloe’s letter did place appellants on notice that he was treating appellee and considered him unable to work. Although furnished this information, appellants not only declined to resume benefits to appellee, they also made no further inquiry or investigation into the matter. Even so, they chose, quite anomalously, to pay Kincheloe’s bills for his treatment of appellee’s injury. Based on these facts, the Commission held appellants controverted benefits when they failed to reinstate them before appellee filed his claim. We believe the evidence supports such a holding.
Appellants’ second contention is couched in terms suggesting that in reaching her decision, the administrative law judge erroneously considered facts which emerged after the December 15, 1981, hearing. Specifically, the law judge initially determined that the controversion of benefits ended on December 15, because it was at the hearing that the appellants voluntarily reinstated benefits. However, appel-lee did not receive these accumulated benefits until January 7, 1982, because appellants purportedly did not mail them until January 4, 1982. Based upon these events that transpired after December 15, the law judge, without a hearing or formal submission of evidence, extended the period of controversion to January 4,1982. Appellants argue they were prejudiced by the law judge’s supplemental decision to controvert benefits until January 4, and the Commission arbitrarily refused to consider this issue of prejudice on appeal. We disagree.
The Commission obviously disagreed with the judge’s findings that controversion ended on January 4, or for that matter December 15. In doing so, it held that all temporary total disability benefits were controverted. Thus, none of the events that occurred after the December 15 hearing in any way influenced the Commission’s decision.
Because we review the Commission’s findings and decision, not the law judge’s, we simply fail to see how the appellants were prejudiced under the circumstances of this case. As discussed earlier, the Commission’s finding that appellants controverted benefits is supported by substantial evidence. After making that finding, the Commission’s decision to controvert all temporary total benefits was correct. Cf. Siegrist v. K. C. Penny Co., 271 Ark. 409, 609 S.W.2d 87 (Ark. App. 1980). Accordingly, we affirm.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant, Roy Ewing Shirley, Jr., was placed on probation for committing the offense of first-degree sexual abuse. On February 6, 2003, appellant appeared before the court and pled guilty to violating the conditions of his probation. By a judgment and commitment order dated February 11, 2003, the trial court imposed a five-year sentence upon the probation revocation. Later on that same date, the court requested appellant’s appearance in court. In an effort to ensure appellant’s payment of the cost of treatment that had been required as a condition of appellant’s probation, the trial court increased appellant’s sentence upon revocation to ten years in prison, of which five years were suspended. An amended judgment to that effect was entered that same day. The appellant now appeals arguing that the trial court did not have jurisdiction to alter the first sentence that had been imposed upon revocation. The State concedes error, and we agree that the trial court did not have the authority to amend the initial judgment.
Technically, this appeal arises from a guilty plea. The general rule is that there is no right to appeal from a plea of guilt. Hampton v. State, 48 Ark. App. 93, 890 S.W.2d 279 (1995). However, this rule is not without exceptions. Id. The denial of a motion to suppress can be appealed under a conditional plea of guilt made pursuant to Ark. R. Crim. P. 24.3. There can also be an appeal after a guilty plea when the appeal is from the denial of a postjudgment motion. See Hodge v. State, 320 Ark. 31, 984 S.W.2d 927 (1995); Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990). Also, when the issues of guilt and sentencing have been bifurcated, an appeal is permitted for the review of errors alleged to have occurred at the sentencing hearing. Hitt v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). There can be no appeal, however, where the appeal is from a sentencing procedure that was an “integral part of the acceptance of the plea of guilty.” State v. Sherman, 303 Ark. 284, 285, 796 S.W.2d 339 (1990). See also Hampton v. State, supra; Henagen v. State, 302 Ark. 599, 791 S.W.2d 371 (1990). Cf. Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999).
In the recent decision of Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), the court applied the reasoning of Hitt v. State, supra, to permit an appeal after a guilty plea had been entered. There, the appellant pled guilty to three felony offenses, and the court pronounced sentence in open court of five years in prison for each offense to be served concurrently. Eight days later, the trial court issued an order sua sponte directing the appellant to appear in court for resentencing. At the resentencing hearing, the court ordered the five-year terms to be served consecutively. Despite the guilty plea, the appeal was allowed on the ground that the sentencing hearing took place “separate and apart from the guilty plea.” Bradford at 401, 94 S.W.3d at 908. Like Bradford, the appellant in the instant case was sentenced at a proceeding separate and apart from the guilty plea. Therefore, we conclude that an appeal is proper.
As a general rule, a trial court may not revise a valid sentence after execution of the sentence has begun. Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995). A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). In this case, the trial court entered a judgment and commitment order sentencing the appellant to five years in prison. Having done so, the trial court lacked the authority to modify the judgment. See Hodge v. State, supra. Therefore, we affirm as modified to reinstate the five-year sentence imposed in the judgment entered on February 11, 2003. Id.
Appellant has also posed the question of whether this case runs afoul of the prohibition against being twice placed in jeopardy. We db not address this argument because it was not raised below. Id. Even so, we note that such an argument was rejected in United States v. DiFrancesco, 449 U.S. 117 (1980). There, the Court remarked that the prohibition against multiple trials is the controlling constitutional principle of double jeopardy and that sentencing does not carry the finality that attaches to an acquittal, which prohibits retrial:
... our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, not the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.
Id. at 132. The Court further observed that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Id. at 135.
Affirmed as modified.
Bird and Griffen, JJ., agree. | [
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Wendell L. Griffen, Judge.
Jimmy Lewis appeals from the order of the Arkansas Board of Review in which the Board denied him unemployment benefits, finding that he voluntarily left his job without good cause. Appellant argues that he left his job for good cause because his employer, Ace Hardware Corporation (Ace), discriminated against him in regularly reassigning him to a lesser-paying position that could be filled by other employees with equal or less seniority. We agree and reverse and remand to the Board for an award of benefits.
Appellant began working for Ace in 1984. Ace’s employees are awarded incentive pay for completing orders in less time than Ace allows for the orders to be completed. -For example, if Ace allows forty minutes to fill an order and the employee fills the order in twenty minutes, the employee earns twenty minutes of incentive pay. For every sixty minutes of incentive pay earned, an employee receives an extra hour’s pay at the rate of his base hourly wage.
Jobs at Ace are awarded on a seniority system, which means that employees who have been employed the longest may bid first on the most desirable positions. In the warehouse operations unit where appellee worked, the jobs were generally divided between two departments: the break-order department and the full-case department. Both departments involved material handling, but the full-case department involved filling heavier orders that weigh as much as 5,000 pounds. Employees seek break-order positions at Ace, in part, because those positions involve lifting no more than fifty pounds at one time. In addition, break-order employees who complete their work before the work-day is finished have the option to leave early, without pay. Appellant worked primarily as an order-filler in the break-order department. However, periodically, he was reassigned to work in the full-case department.
Appellant and Ace dispute whether break-order workers tend to earn more incentive pay. Ace presented testimony explaining that the time given to fill various types of orders and full-case orders is determined by engineers who time the work of both departments and set time-completion limits that take into consideration the difficulty of the order to be filled. Appellant’s position is that, despite the engineers’ determinations, it is well known among the employees and is true in his personal experience that an employee can fill a greater number of lighter orders during the course of a day than he can heavier orders because there is less heavy lifting in the break-order position; therefore, appellant asserts, based on his experience, a worker can earn more incentive pay in the break-order department than in the full-case department. He 'maintains this is another reason why employees bid for break-order positions.
Appellant left his employment in April 2003, after complaining to various levels of management for at least five years regarding the manner in which Ace reassigned him from his break-order position to the full-case department. Appellant and Ace agree that Ace had a large turnover in the full-case department and that whenever Ace needed additional staff in the full-case department, Ace reassigned only appellant and one other male break-order filler to the full-case department. Because appellant had more seniority than the other male, he was reassigned less often.
Typically, when appellant was reassigned to the full-case department, he was assigned to work a few hours, late in the day, to complete the department’s work for that day, but he had been reassigned to work two to three days in a given week. When appellant was reassigned to the full-case department, Ace typically replaced him in the break-order department with a female employee who had much less seniority. Ace admitted that there were two females in the break-order department with the same seniority as appellant, but they were never assigned to the full-case department. Because Ace generally trained new employees for the full-case department, it did not train existing employees to work in that department. However, the full-case department suffered from a high-turnover rate because employees frequently bid out of that department. Appellant offered to train other workers to perform full-case duties and to fill in for other workers while Ace trained them, but Ace declined his offer.
During the course of his last five years of employment, appellant complained regularly about his reassignments to the full-case department. He complained to his immediate supervisor and the operations manager ten to fifteen times each, and also complained to the warehouse manager and the general manager, the highest level of management. Generally, the supervisors agreed with appellant that it was not “right” to reassign him, but that no one else was immediately available to work in the full-case department, and that it would take them approximately two weeks to hire additional employees to work in that department. Then, the process would begin again, because Ace would hire other employees to work in the full-case department, who would then bid to another department.
Approximately seven to ten days before appellant left his employment, he complained to the general manager, who responded that Ace would need one or two weeks to get appellant out of the full-case department. Approximately one and one-half weeks after that, Ace assigned appellant to do full-case work for two hours at the end of a work day. At the start of the next work day, Ace assigned appellant to full-case work for the entire day. Appellant testified it was at this point that he determined, “that was enough.” He testified that he finally understood that Ace was never going to correct the problem. When asked why he did not wait until the end of the two-week period mentioned by the general manager, he stated, “It was the same old story.”
Appellant quit and applied for unemployment benefits on the ground that Ace’s discrimination adversely affecting his mental and physical health. Ace controverted appellant’s entitlement to unemployment benefits, and a hearing was held before the Appeals Tribunal. The Tribunal found that appellant had legitimate complaints that Ace refused to address. It observed that a position in the break-order department is a more coveted position than a position in the full-case department. The Tribunal further noted that appellant’s direct supervisor, Gary Kilby, stated that appellant’s concerns were not addressed because other employees would have to be trained and that it was easier to have appellant do the work. The Tribunal also noted that Kilby admitted that appellant could have easily trained his fellow employees. Although appellant was required by Ace’s personnel handbook to file a grievance with human resources but did not, the Tribunal found that appellant made a reasonable effort to resolve his disputes because he complained to every level of management.
Ace appealed to the Arkansas Board of Review. The Board reversed the Tribunal, essentially finding that Ace was allowed to use its discretion in the reassignment of its employees. The Board found that although the break-order work was less strenuous, the work of both departments was similar and appellant was well-trained to work in the full-case department. The Board noted that the evidence was in dispute regarding the extent to which the reassignments adversely affected appellant’s incentive-pay earnings.
The Board was not persuaded by appellant’s argument that Ace’s reassignment procedure was discriminatory. It noted that Ace had managerial discretion to reassign employees on a temporary basis to meet staffing needs. Further, the Board noted that appellant did not allege a contractual term under which an employee’s seniority would limit managerial discretion. Because the evidence was that women would have to call for assistance in lifting heavy items, the Board found that to assign women in the full-case department would have compounded Ace’s staffing problems in that department. Therefore, the Board found that this was a legitimate, nondiscriminatory business reason not to assign women to the full-case department. Finally, the Board found that appellant’s claims that his problems at work were affecting his health were unconvincing. This appeal followed.
We will affirm the Board’s decision on a question of fact if it is supported by substantial evidence. Magee v. Director, 80 Ark. App. 162, 92 S.W.3d 703 (2002). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Gunter v. Director, 82 Ark. App. 346, 107 S.W.3d 902 (2003).
An individual shall be disqualified for unemployment benefits if he or she left his or her last work voluntarily and without good cause connected with the work. Ark. Code Ann. § 11-10-513(a)(1) (Supp. 2003). Good cause is a cause that would reasonably impel an average, able-bodied, qualified worker to give up his or her employment. Garrett v. Director, 58 Ark. App. 7, 944 S.W.2d 865 (1997). Good cause 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 (2003). In addition, in order to receive unemployment benefits, an employee must make reasonable efforts to preserve his or her job rights. Ark. Code Ann. § 11-10 — 513(b).
We hold that the Board erred in finding that appellant did not leave his work for good cause. The Board concluded that Ace had a legitimate, business-related reason for not training women to work in the full-case department, in that if women were required to call for assistance to lift the heavier objects, that would compound Ace’s staffing problems. However, Ace made no such assertion. By Ace’s own admission, the only reason that it failed to train other workers was because appellant was already trained and it was easier to reassign him. Appellant testified that some orders in the full-case department weighed as much as 5,000 pounds. Thus, presumably even men who are reassigned to the full-case department will be required to call for the assistance of a forklift to handle such heavy material.
While an employer has managerial discretion, it may not use that discretion in a discriminatory manner. Even if we agree that Ace had a legitimate, business-related reason for not training women to work in the full-case department, it advanced no such reason for not training other men to work in that department. We cannot ignore that Ace’s staffing problems were self-created and that its reassignment policy seems to violate its own rules regarding seniority upon which its employees rely.
Appellant left his job when he realized that Ace was never going to permanently address the underlying situation that caused his reassignment to the full-case department: in spite of the fact that employees regularly bid out of the full-case department, causing staffing shortages in that department, Ace refused to train other existing workers to fill those shortages. An element in determining good cause is whether the employee took appropriate steps to prevent mistreatment from continuing. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App.1980). Appellant had worked for Ace for nearly twenty years. After five years of complaining to all levels of management about being reassigned to a position that, in his experience, caused him to lose pay, after offering to assist with training other employees, and after having management violate its own seniority rules and take virtually no action to provide a permanent remedy, appellant quit. We agree with appellant that his circumstances would reasonably impel an average, able-bodied, qualified worker to give up his or her employment.
Reversed and remanded for an order to award benefits.
Gladwin and Roaf, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from a jury verdict of $10,000 in appellees’ action for breach of an implied warranty of fitness and habitability on appellees’ home. The appellant builder raises three issues.
Appellant first contends appellees did not give adequate notice of all of the claimed defects. We considered this same issue in Pickler v. Fisher, 7 Ark. App. 125, 644 S.W.2d 644 (1983), and we find that case dispositive here. The Picklers constructed a home which they sold to the Fishers. The Fishers first complained orally to the Picklers about alleged defects in the home; they next sent a letter setting out eight specific defects; they then filed an action listing nineteen defects in the complaint. At trial, over the Picklers’ objections, the Fishers presented proof on thirty-six defects. The jury gave a verdict for the Fishers. The Picklers contended on appeal to this Court that in an action based upon an implied warranty on the sale of new housing, the purchaser is required to give timely notice of each and every claimed defect and that failure to do so results in a waiver of any defects not contained in a timely written notice. We said:
We do declare that in such cases the buyer is not required to list each and every objection that he would rely on as constituting the breach. Notification in such cases need only be with sufficient clarity to apprise the vendor-builder that a breach of implied warranty is being asserted and to give him sufficient opportunity to inspect the premises and to correct the defects. The sufficiency of the notice and whether it was given within a reasonable time are ordinarily questions for a jury to determine.
Id. at 129, 644 S.W.2d at 646.
In the case at bar, the appellees testified that they personally apprised the appellant that defects existed from the time they moved into the house in July, 1979, until the appellant stopped taking or returning their phone calls. By letter dated January 4, 1980, appellees’ attorney set out the appellees’ complaints about defects in the siding on the house. Appellant admittedly did not respond to that letter. Appellees filed a complaint on May 8, 1981, in which they listed nine specific defects “plus other numerous defects or damages resulting from said defects.” Whether the appel-lees’ notice to appellant was sufficient and was given within a reasonable time were questions for the jury to determine. The jury decided those questions against the appellant, and we find substantial evidence to support the jury’s decision.
Appellant’s second point for reversal concerns the testimony of appellees’ expert witness, Fred Hop. Appellant alleges the trial court erred in not striking Hop’s testimony in its entirety because Hop did not testify with certainty either about which work constituted a breach or to the amount of damages.
At trial, appellant cross-examined Hop extensively regarding his value testimony, and he continues to disagree with Hop’s assessment of costs here. As appellee points out in his argument, the jury did not accept Hop’s total assessment of the damages since it awarded an amount different from that given by Hop. Of course, it is the province of the jury to pass on the weight of the evidence, and when the sufficiency of the evidence is challenged on appeal, we will not disturb the finding of the jury if there is any substantial evidence to support it. Guerin Contractors, Inc. v. Reaves, 270 Ark. 710, 606 S.W.2d 143 (Ark. App. 1980). In Taylor v. Green Memorial Baptist Church, 5 Ark. App. 101, 633 S.W.2d 48 (1982), we also stated that when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages are difficult to ascertain. From our review of the record, we believe Hop’s testimony was sufficient with respect to defects and repair costs to enable the jury to establish the amount of damages.
Appellant’s counsel initially objected to the qualifications of Hop as an expert because he had not constructed houses of the type in question. After appellant’s counsel was permitted to voir dire Hop, the judge ruled that Hop was qualified, finding that the weight and credibility of his testimony would be left to the jury to determine. In this appeal, appellant does not challenge the judge’s ruling on Hop’s qualifications. Thus, once the trial court determined Hop qualified as an expert, he was entitled to testify in the form of an opinion or otherwise. Unif. R. Evid. 702; Hay v. Scott, 276 Ark. 46, 631 S.W.2d 841 (1982). Furthermore, as an expert, Hop was permitted to testify in terms of opinion or inference, giving his reasons without prior disclosure of underlying facts or data; he was required, however, to disclose the underlying facts or data on cross-examination. That is exactly what occurred at trial. Hop testified at length to the numerous, specific defects he found in the construction of appellant’s house, and he stated how each defect should be repaired, assigning an estimated cost for the repair.
In his third point, appellant, citing Arkansas Rule of Civil Procedure 26(e), asserts that appellee knowingly concealed certain defects and costs information by failing to amend his prior responses to interrogatories propounded by appellant. In examining the record, we fail to find where appellant raised any issue concerning a knowing concealment by appellee, and we do not consider assignments of error raised for the first time on appeal. McIlroy Bank & Trust v. Seven Day Builders of Arkansas, Inc., 1 Ark. App. 121, 613 S.W.2d 837 (1981). At one point in the trial, appellant’s counsel did object to Hop’s testifying “into areas that have not been raised in the complaint nor in the interrogatories propounded.” Specifically, Hop testified that appellant improperly installed an interior door located inside the garage. Appellant objected that there was nothing in the pleadings about a door in the garage and he was “not prepared to defend against this sort of thing.” Appellant’s objection, as posed, actually relates to his first contention and our conclusion is the same — appellees were not required to list each and every defect and the sufficiency and timeliness in apprising appellant of the defects were questions to be decided by the jury.
Affirmed.
Mayfield, C.J., and Cooper, J., agree. | [
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Lawson Cloninger, Judge.
In this workers’ compensation case, appellant, Don Chism, was injured on December 8, 1979, in the shop of appellee, Grady W. Jones, where appellant had worked as a mechanic for seventeen years. The injury required surgery on appellant’s back. Two doctors rated appellant’s anatomical disability at 20%. A chiropractor rated the anatomical disability at 50%. Permanent partial disability benefits in the amount of 20% were awarded by the Administrative Law Judge, and the full Commission adopted the law judge’s opinion. Appellant now brings this appeal, contending that he is totally and permanently disabled.
Appellant urges two points for reversal: that the Commission erred (1) in finding that appellant had refused all efforts toward rehabilitation, and (2) by refusing consideration of wage loss disability. We find merit in both of appellant’s contentions and we reverse and remand.
The law judge found that appellant “ . . . has flatly turned down all efforts at vocational rehabilitation..., ” and that finding was adopted by the full Commission as its own. A decision of the Workers’ Compensation Commission will be affirmed if there is any substantial evidence to support it, but whether the evidence is substantial in nature is a question of law. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W.2d 82 (1963).
There is no substantial evidence to support the finding of the Commission that appellant had turned down all efforts toward rehabilitation. The only evidence on the issue was given by appellant and Dr. Kirk Parry. Appellant did testify that he did not believe he could do any type of work because of his pain, but that if he could find something he could do he would be willing to go back to work. When appellant was asked on cross examination if he wanted to undergo vocational training, he replied, “If anyone thinks they can help me to get back to where I can have gainful employment, I am willing todo whatever.” At that point the law judge conducting the hearing questioned appellant as follows:
Mr. Emerson:
Mr. Chism, what I think he’s trying to do is, and let me ask you this, are you willing to cooperate and try?
Witness:
Yes, sir.
Mr. Emerson:
Or do you feel like you’ve got too much pain that you’re not willing to cooperate and try?
Witness:
With the pain that I have, I don’t believe I can do any good, but if they are willing to undergo some kind of training program, I’ll go through with it.
At another point in his testimony appellant responded as follows:
Q. My question to you again, Mr. Chism, do you want to undergo any training program or would you rather not at this time? I’m asking you if you want to or not; I’m not asking why.
A. Yes, I would undergo anything that I could get gainful employment out of; I’d be willing to go with it.
The conclusion must be reached that appellant never refused rehabilitation in his testimony at the hearing.
In October, 1981, while appellant was a patient in the Pain Control Program at Central Baptist Hospital, Little Rock, he was referred to Dr. Parry, a counseling psychologist. The purpose of the referral was to help appellant decide on future vocational possibilities. Dr. Parry summarized his report as follows:
Mr. Chism was negative about the Pain Control Program, feeling he hadn’t made much progress in pain management. He was rigidly fixed on the idea that flight training with the goal of commercial crop dusting is the only vocational avenue that made sense for him, considering physical limits, interest factors, and salary levels. Testing suggested that might not be unwarranted from an ability standpoint, but the patient was rather closed to other practical factors that were pointed out. He was informed that he could undergo further evaluation/counseling as an outpatient here or elsewhere in the future if it became necessary to look into other vocational rehabilitation alternatives.
Both Dr. Parry and Dr. Warren Boop, the admitting physician for appellant under the Pain Program, felt that appellant’s desire for a flying training program was unrealistic in view of appellant’s education and experience. However, appellant was not placed in any vocational rehabilitation program and no future interview with Dr. Parry was scheduled. There was no substantial evidence in the report of Dr. Parry that appellant had flatly refused rehabilitation.
The findings of the law judge, adopted by the full Commission, were concluded by the following observation:
Any consideration of wage loss disability is negated by the claimant’s attitude toward Vocational Rehabilitation, and he is certainly far from being totally disabled.
The import of the Commission’s conclusion appears to be that any consideration of wage loss disability is precluded by the claimant’s attitude toward rehabilitation. Certainly, whether appellant can be retrained is one of the factors to be considered in a determination of his wage loss disability. Smelser v. S. H. & J. Drilling Corp., 267 Ark. 996, 593 S.W.2d 61 (Ark. App. 1980). It is not the only factor.
Many factors are to be considered in a determination of wage loss disability. In Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), the Arkansas Supreme Court held that the Commission was in error when it considered only medical evidence. The court ruled that consideration should have been given, along with the medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss. This court recognized the Glass v. Edens principle in Rapley v. Lindsey Construction Co., 5 Ark. App. 31, 631 S.W.2d 844 (1982).
In this case, one of the “other matters” to be considered would be whether appellant can be retrained for other employment. The fact that he has only a seventh grade education, is largely a self-taught mechanic, has been employed for seventeen years only in the field of mechanics, and the degree of pain he endures as a result of the compensable injury are also factors which should be considered along with the medical evidence and his capability for retraining.
Even if appellant had refused to participate in a rehabilitation program, which we have found he has not, that fact alone would not necessarily preclude the Commission from determining appellant’s wage loss disability to be in excess of his anatomical disability rating.
The decision of the Commission is reversed and the cause remanded to the Commission with instructions to afford appellant an opportunity to participate in a rehabilitation program, and to consider appellant’s wage loss disability in a manner consistent with this opinion.
Reversed and remanded.
Cracraft and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
In November, 1981, appellant Eddie Dean Smith, Jr., entered a plea of guilty to theft of property and received a ten-year suspended sentence. On June 18, 1982, appellant was charged with two counts of burglary of residential homes. On November 2, 1982, the State filed a petition to revoke the suspended sentence, alleging that appellant had violated the terms of his suspended sentence by committing burglary. After a revocation hearing, the trial court revoked the suspension. On appeal, appellant contends: (1) he was found guilty of criminal offenses without a trial by jury and without the proper burden of proof in violation of the Sixth and Fourteenth Amendments; and (2) the revocation of his suspended sentence was an abuse of discretion.
To revoke a suspended sentence the State must prove by a preponderance of the evidence that the defendant violated a condition of his suspension. We will not reverse a decision of the trial court to revoke a suspended sentence unless we find it clearly against the preponderance of the evidence. Brewery. State, 274 Ark. 38, 621 S.W.2d 698 (1981); Peppers v. State, 3 Ark. App. 166, 623 S.W.2d 544 (1981). Our study of the record reveals the trial court’s decision is not clearly against the preponderance of the evidence. Therefore, we affirm.
At the revocation hearing, two police officers testified that their investigation of the burglaries of two homes resulted in the arrest of Thomas Cobb. Cobb, an alleged accomplice in the crimes, implicated the appellant in the crimes and made a written statement to the police. The officers testified that the appellant also gave them a statement in which he admitted that he entered the two homes in question and took certain items which were reported missing. Between the time the statements were given and the hearing, the officers’ investigative file containing the statements disappeared; thus, the statements could not be introduced into evidence.
Thomas Cobb testified at the hearing that his statement implicating appellant in the crime resulted from police threats and coercion. Appellant testified that he did not commit the burglaries for which he was charged. He denied having been questioned at all by the two officers who testified at the hearing. Instead, he named two other officers in the detective division whom he claims questioned him. He admitted having been given a copy of a statement by his attorney, but denied having made the statement.
Appellant’s first contention is two-fold: (1) he was constitutionally entitled to and denied a jury trial, and (2) the burden of proof was wrongfully reduced from “beyond a reasonable doubt” to “a preponderance.” Because this argument has been decided by our Supreme Court, we can dispose of this point quickly. In support of his argument, appellant cites only § 5.3 of the American Bar Association’s “Standards Relating to Probation,” which states:
“[A] revocation proceeding based solely upon the commission of another crime ordinarily should not be initiated prior to the disposition of that charge.”
Relying on § 5.3, appellant argues that the two burglary charges were still pending when the State relied on them to revoke his suspended sentence; therefore, the trial court could not hear the revocation matter until the burglary charges were decided. However in Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977), the Arkansas Supreme Court, in referring to § 5.3 above, noted:
“It is significant . . . that this standard has not been adopted in Arkansas, in spite of the fact that it was specifically pointed out in 1971 that Arkansas law, as expounded in Gross v. State, 240 Ark. 926, 403 S.W.2d 75, was contrary to the standard.”
Ellerson, 261 Ark. at 531, 549 S.W.2d at 498.
One year later the Court stated, “We find no merit to appellant’s contention that he was denied a right of a jury trial. Arkansas has not adopted the American Bar Association’s ‘Standards Relating to Probation’ § 5.3.” Hughes v. State, 264 Ark. 723, 728, 574 S.W.2d 888, 891 (1978).
For his second point, appellant argues that revocation of his suspended sentence was an abuse of the trial court’s discretion and was not based upon fact. Appellant relies upon United States v. Jackson, 450 A.2d 419 (D.C. Ct. App. 1982), for steps a trial court must take in conducting a hearing when a statement has been lost or destroyed. Of course, the Jackson case is not binding precedent on this Court; but even if it were, the holding in Jackson is simply not applicable to the facts at bar. In brief, the Jackson case involved federal discovery under the Jencks Act, 18 U.S.C.A. § 3500 (d), (e) (2), and there Jackson relied upon procedures applicable to lost or destroyed “statements” as defined by the Act.
Appellant’s contention that the trial court abused its discretion in revoking the suspended sentence is based largely upon his disagreement with the findings made by the court in weighing and evaluating the evidence. It was the court’s responsibility to resolve the conflicts and to determine the credibility of the witnesses. The court was not required to give greater weight to the testimony of the appellant than it gave to that of the police officers. Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). When a question turns on the credibility of witnesses, this court will defer to the superior position of the trial court. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).
We find that the trial court neither violated appellant’s constitutional rights nor abused its discretion in revoking appellant’s suspended sentence.
We affirm.
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John B. Robbins, Judge.
Appellee Amanda Burroughs and Larry Kendall have two children out of wedlock: James, d/o/b 5-10-97 and Hannah, d/o/b 7-6-98. Until 2003, Mrs. Burroughs had custody of both children and Mr. Kendall was paying court-ordered child support. On October 20, 2003, an agreed order was entered that provided for joint custody, with Mr. Kendall having primary physical custody and Mrs. Burroughs having liberal and reasonable visitation. The agreed order awarded no child support. On March 10, 2006, appellant Office of Child Support Enforcement (OCSE) filed a motion to set child support against Mrs. Burroughs. In her response to the motion, Mrs. Burroughs asserted, “The motion for support should be denied in that the current status is joint custody with limitations on the [appellee’s] time with the children. The [appellee] would never have agreed to joint custody and giving up child support had she in turn been ordered to pay child support.” After a hearing, the trial court entered an order denying OCSE’s motion for child support on the basis that OCSE failed to show a material change of circumstances sufficient to modify the prior agreed order that provided no child support. OCSE now appeals from that order, arguing that the trial court clearly erred in faffing to find a material change in circumstances. We agree, and we reverse and remand.
The only witness to testify at the hearing was Mr. Kendall. There was also some discussion between the parties’ attorneys and the trial court, wherein it was established that Mrs. Burroughs had remarried in June 2005 and is currently employed at Hardee’s earning $213 per week. Mrs. Burroughs’ counsel represented at the hearing that the October 20, 2003, agreed order was technically not an order of joint custody because Mr. Kendall was awarded primary physical custody. However, Mrs. Burroughs’ counsel contended that no child support should be awarded because there had been no material change in circumstances since the prior order.
Mr. Kendall testified:
I am the father of Hannah and James. They are in my custody. In the order when I agreed to the joint custody arrangement and no support, it was because Amanda was going to be moving to Texas and would be without a job. And because she had been unstable at that point in time. I am asking for support because since that time she has married, got a steady job and I’m receiving no help and the kids are getting more expensive as far as buying clothes for and taking care of.
Amanda never did move to Texas. I wasn’t going to ask for support while she was in Texas because I figured with her driving back and forth, it would just help out on gas to hopefully be able to see the kids on every other weekend. She is now employed at Hardee’s,West Main. As far as I know, she hasn’t left there. She was employed there when we went into the agreed order of custody which gave me primary physical custody of James and Hannah. That was the one in which I said no child support. She was working at Hardee’s at that time.
OCSE’s argument on appeal is that the trial court erred in failing to award child support because there has been a material change in circumstances since the October 2003 agreed order was entered. Specifically, OCSE points to Mr. Kendall’s testimony where he stated that the agreed order was based on Mrs. Burroughs’ anticipated move to Texas, where she would be unemployed and forced to incur travel expenses to exercise visitation. Because these events did not occur and Mrs. Burroughs has remarried and remained gainfully employed in Arkansas, OCSE maintains there has been a material change in circumstances and child support should be awarded pursuant to the chart. OCSE cites McKinney v. McKinney, 94 Ark. App. 100, 226 S.W.3d 37 (2006), for the proposition that when support is based on an expectation of circumstances, and the expected circumstances change, there can be a material change of circumstances. In that case we affirmed a reduction in child support where, although the father was unemployed and receiving no income both at the time of divorce and when he petitioned for a reduction, at the time of divorce he had been approved for monthly unemployment benefits of $1000 per month, and those benefits subsequently began to be received but expired prior to the filing of his petition.
Arkansas Code Annotated section 9-14-107(c) (Supp. 2005) provides:
(c) An inconsistency between the existent child support award and the amount of child support that results from application of the family support chart shall constitute a material change of circumstances sufficient to petition the court for modification of child support according to the family support chart after appropriate deductions unless:
(1) The inconsistency does not meet a reasonable quantitative standard established by the State of Arkansas in accordance with subsection (a) of this section; or
(2) The inconsistency is due to the fact that the amount of the current child support award resulted from a rebuttal of the guideline amount and there has not been a change of circumstances that resulted in the rebuttal of the guideline amount.
Subsection (a) of the statute provides:
A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a material change in circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart after appropriate deductions.
OCSE asserts that the October 2003 agreed order that provided no support was the result of a rebuttal of the guideline under subsection (c)(2) above. However, because there has been a material change since then (i.e. appellee’s failure to relocate to Texas), and this anticipated circumstance was the reason the chart amount was initially rebutted, OCSE contends that child support should now be awarded against Mrs. Burroughs.
It is axiomatic that a material change in circumstances must be shown before a trial court can modify an order for child support, and a trial court’s finding in this regard is subject to a clearly erroneous standard of review. See Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005). We hold that the trial court clearly erred in denying OCSE’s petition for child support on the basis that there had been no material change in circumstances.
In the October 2003 order that provided for no child support, there were no specific written findings that the chart amount was inappropriate as is required by law. See Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003). Because Mrs. Burroughs was employed at that time, child support of zero was clearly a deviation from the chart, and neither party appealed from that order. More than two years later, Mr. Kendall testified that he agreed to no child support at that time because he thought Mrs. Burroughs would be moving to Texas and would be without ajob.
There was a statutory change of circumstances in this case under section 9-14-107(c) because when applying the chart to appellee’s income the result is obviously something greater than zero. Mr. Kendall could not forever waive his children’s right to child support, and there is no legal basis why Mrs. Burroughs should not now be ordered to pay support for her children, who are in Mr. Kendall’s primary custody. From the October 2003 order, it is not clear why there was a deviation from the chart amount. Perhaps it was due to Mrs. Burroughs’ anticipated move to Texas. But whatever the case, Mrs. Burroughs did not move to Texas and there appears to be no existing justification for deviating from the chart and continuing to allow Mrs. Burroughs to avoid supporting her children. Neither of the two exceptions set forth in section 9-14-107(c) are applicable to this case. Because there has been a material change in circumstances and the trial court clearly erred in finding otherwise, we reverse and remand for the trial court to set an appropriate amount of child support.
Reversed and remanded.
Gladwin, Griffen, Glover, and Vaught, JJ., agree.
Baker, J., dissents. | [
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Lawson Cloninger, Judge.
Appellant, Drexel Williams, d/b/a Riverview Dairy, and Amel Haley entered into a lease agreement in 1973, whereby Haley was to operate a dairy business, including land, cattle and equipment owned by Williams. On July 24, 1980, Williams filed a complaint against Haley in the Circuit Court of Fulton County, Arkansas, alleging that Haley, without authority from Williams, sold 63 head of cattle belonging to Williams. At the same time, Williams filed an affidavit and bond for replevin asking for delivery of the cattle.
On July 30,1980, Williams filed a complaint in replevin in the Circuit Court of Fulton County against Mario Davis, one of the appellees here, alleging that Davis was in possession of the 63 head of cattle and unlawfully detained them. Mario Davis then filed a third party complaint against appellees, Robert Threlkeld and Sammy Gresham, d/b/a T & G Cattle Company, alleging that Threlkeld and Gresham had sold the cattle in question to Davis and had warranted title to the animals.
An order was entered in Fulton Circuit Court on August 26, 1980, which provided that the cattle remain in the possession of Davis pending further hearing. The court also ordered Threlkeld and Gresham to deposit $25,000 as a bond to satisfy any judgment entered against them in favor of Williams or Davis.
The cases were transferred from Fulton County Circuit Court to Fulton County Chancery Court on October 26, 1981. On June 3, 1982, testimony was taken on the consolidated cases, and at a point in the hearing before Williams had completed the presentation of his evidence, the court allowed a continuance in order for the parties to attempt to reach a settlement.
On September 29,1982, the attorney for Davis, Threlkeld and Gresham moved to dismiss Williams’ action against them on the basis of an alleged settlement as to them. The trial court entered an order of dismissal, stating:
I am going to grant the motion to dismiss on the basis that the case was settled and I’m doing that to some extent because I think the complaints . . . are of marginal merit.
It is from this judgment that appellant, Drexel Williams, brings this appeal. At the hearing on the motion to dismiss there was no formal taking of testimony. The entire record relating to a settlement consists of statements made by the attorneys for the parties. The authority of the attorneys to effect a settlement is not questioned in this case, and the reception of the statements by the attorneys as a basis for the court’s decision is not made an issue.
The question on this appeal is whether the trial court was in error in dismissing appellant’s complaint on the basis of what the court found to be a compromise settlement. We hold that the finding by the trial court that there was a settlement is clearly against a preponderance of the evidence and we reverse. Appellant also argues that the trial court erred in treating the motion of appellees as a motion for summary judgment, but in view of our ruling on appellant’s first point we do not find it necessary to reach the second.
The rule in Arkansas with respect to compromises and settlement agreements is stated in the case of Burke v. Downing Co., 198 Ark. 405, 129 S.W.2d 946 (1939). There it was held that the law favors amicable settlement of controversies and it is the duty of courts to encourage rather than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims. Such agreements are binding without regard to which party gets the best of the bargain or whether all the gain is in fact on one side and all the sacrifice on the other. However, a settlement is contractual in nature and to have legal validity, it must possess the essential elements of any other contract. See 15 (a) C.J.S. § 1; Compromise and Settlement (1967); Corbin on Contracts § 1278 (1951); Folsom v. Butte County Association of Governments, 652 P.2d 437 (Cal. 1982).
In the instant case there is simply no evidence that any agreement or “meeting of the minds” took place between the parties. In fact, the only written document which alleges any agreement whatsoever in the record is in the motion to dismiss itself. No testimony was taken at trial on the issue and appellant’s attorney repeatedly denied that any settlement took place. Since there is no competent evidence in the record of any agreement reached between the parties and in light of the above stated rule that general principles of contract law apply to settlements and compromises, it is the opinion of this court that the trial judge’s decision that this case was settled is clearly against the preponderance of the evidence.
Hence, we reverse and remand to the trial court.
Cracraft and Glaze, JJ., agree. | [
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OLLY NEAL, Judge.
Appellant and appellee were divorced pursuant to a decree entered September 11, 1998. In connection therewith, the chancellor divided the parties’ property, awarded tort damages to appellee, and ordered appellant to pay a portion of appellee’s attorney fees and expert witness fees. We affirm with modifications.
Appellant is an architect whose highly specialized practice involves the design of church buildings. His firm is incorporated under the name of Keith Miller Architects & Associates, Inc. The primary issue on appeal is whether the chancellor, in making a division of marital property, erred in her valuation of the corporation. She found that the corporation had a value of $600,000 and ordered appellant to pay appellee half that amount. Payments were to be made in the sum of $30,000 per year for ten years. To secure the payment schedule, appellee was given a lien “on any business entities currently or subsequently owned by [appellant] in the next ten (10) years, or until the debt obligations to [appellee] are fulfilled.”
Appellant’s first argument is that the evidence did not support a valuation of $600,000. Chancery cases are reviewed de novo on appeal. See Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). However, we do not reverse a chancellor’s findings of fact unless they are clearly erroneous. See id. At the time a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such division to be inequitable. Ark. Code Ann. § 9-12-315 (Repl. 1998). In this case, appellant does not challenge the inclusion of the business as marital property or the chancellor’s decision to award one-half of its value to appellee. His argument is confined to the propriety of the chancellor’s valuation. A chancellor’s finding regarding the valuation of a business will not be overturned unless it is clearly erroneous. Nicholson v. Nicholson, 11 Ark. App. 299, 669 S.W.2d 514 (1984).
To establish the value of Keith Miller Architects & Associates, Inc., appellee presented the testimony of CPA Rachel Kramer Fletcher, a certified valuation analyst. Fletcher placed a value of $974,000 on the adjusted net assets of the business and estimated a “rule-oKthumb” value of $1,040,000. She determined that the company’s primary assets were a $500,000 blueprint inventory and accounts receivable of $349,532. The remaining assets consisted of cash, loans to shareholders, unbilled contracts, physical property, and land. Fletcher began her analysis by referring to the corporation’s 1996 income-tax return. The return, which was prepared on a cash basis, reflected approximately $108,000 in assets including the cash, the loans to shareholders, the land, and the physical property, less depreciation. However, to arrive at the value of the business, she inserted normalizing entries for items not included in cash-basis accounting. These included the accounts receivable in the amount of $349,532, the $500,000 blueprint inventory, and unbilled contracts in the amount of $66,000. Further, she altered the corporation’s depreciation deduction to reflect the straight-line method rather than the accelerated method used for tax purposes. These calculations resulted in adjusted net assets of $974,000. Then, using an industry-approved rule-of-thumb method for valuation of architecture and engineering firms, she arrived at $1,040,000 as the ultimate value of the company.
Appellant presented no expert witness of his own, but he questioned Fletcher’s valuation methods. His primary concern was the $500,000 she assigned as the value of the corporation’s blueprints. There was evidence at trial that the company had between 50 and 200 blueprints on hand and had, in the past, resold the designs contained therein to new clients. Using appellant’s contract prices, Fletcher calculated that 50 blueprints would have a value of $10,000 each, for a total of $500,000. Appellant denied his ability to resell the blueprints, but appellee, who had worked in the business, and Tim Dowty, appellant’s intern, confirmed that it had been done. Appellant did admit that the blueprints in his office were insured for $250,000. The remainder of Fletcher’s valuation, including the accounts receivable, the unbilled contracts (which were two works in progress), and the value of the company’s physical assets, were gleaned from the corporation’s own financial records.
In his argument on appeal, appellant relies on Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995), which stands for the proposition that the goodwill of a business is not a divisible item of marital property if it has no value independent of the presence or reputation of a particular individual. However, no goodwill was included in Fletcher’s valuation. Her valuation was based upon the blueprints, the accounts receivable, and other tangible assets of the business. In any event, the chancellor did not blindly rely upon Fletcher’s testimony to establish the value of the corporation. At the close of the evidence, she expressed doubt that the corporation was worth as much as Fletcher had testified. In particular, she was skeptical of the “arbitrary” value that Fletcher placed on the blueprints, although she conceded that they probably had some worth. In her final decree, she valued the business at $600,000, meaning that she deducted approximately $400,000 from Fletcher’s valuation.
Given the chancellor’s careful consideration of the evidence, especially with the testimony of only one expert to rely upon, we cannot say that the value she placed on the business was clearly erroneous. She obviously deducted a substantial amount from Fletcher’s evaluation based upon her doubt regarding the value of the blueprints. The other items included in the valuation had a basis in the evidence and in recognized accounting methods. Additionally, she took into consideration evidence that appellant had been receiving a very good income from the business that enabled him to afford numerous cars and a yacht. In light of the foregoing, we find no error on this point.
Appellant argues next that the chancellor did not have the right to place a lien on his current and future businesses to secure payment of the $300,000. We disagree. First, the chancellor in a divorce case has the power to impose a lien to secure an amount owed pursuant to a property division. See Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989). Secondly, the lien was justified in this case based upon testimony that appellant had once discussed either filing bankruptcy or scaling down his business in the event of a divorce and based upon evidence of appellant’s rather extravagant spending habits. A chancellor may fashion any reasonable remedy justified by the proof. See Jones u Ray, 54 Ark. App. 336, 925 S.W.2d 805 (1996).
The next set of arguments concerns the chancellor’s award of tort damages to appellee. Appellee testified that, during an argument with appellant in February 1997, he hit her and injured her. As a result, she sought chiropractic treatment and underwent psychological counseling. The chancellor awarded her $15,000 for future medical expenses, to be reduced by $6,000 she owed appel lant on another matter. Appellant contends first that the tort claim should have been heard in circuit court. However, appellant did not move to transfer the case to circuit court until midway through trial, despite the fact that appellee’s amended complaint had sought damages for physical abuse and appellee’s counsel had mentioned the tort claim in opening statements. By the time the motion was made, several witnesses had already testified. Failure to make a timely motion to transfer a case from equity to law waives the right to make the motion unless the equity court is wholly incompetent to grant the relief sought. See McCune v. Brown, 8 Ark. App. 51, 648 S.W.2d 811 (1983). The chancery court in this case was not wholly incompetent to hear the tort claim. A court of equity, once it acquires jurisdiction of a case, may hear a tort claim under the clean-up doctrine. See Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).
Appellant also argues that the tort claim was barred by the one-year statute of limitations on assault and battery cases contained in Arkansas Code Annotated section 16-56-104(2) (1987). However, the incident that gave rise to the claim happened in February 1997, and appellee’s amended complaint seeking damages for physical injury was filed in October 1997, less than one year later.
Finally on this point, appellant argues that the award of $15,000 in damages was excessive. We disagree. First, we note that appellee, her sister Janet Friday, and appellant’s intern Tim Dowty all testified as to the severity of appellee’s injuries that resulted from the beating. Secondly, the award was apparently based upon the testimony of appellee’s therapist Linda Davis. Davis testified that appellee would need counseling in varying degrees of frequency for a five-year period to cope with the post-traumatic stress that resulted from the beating. Based upon Davis’s hourly rate of $137, the award of $15,000 was reasonable in light of her recommendations.
Next, we turn to the chancellor’s order to appellant to pay $4,000 of appellee’s attorney fees and $4,000 of appellee’s expert witness fee. Regarding the attorney fees, courts have the inherent power to award attorney fees in a domestic relations proceeding. See Tortorich v. Tortorich, supra. A trial court has considerable discretion in the allowance of attorney fees in a divorce case, and, absent an abuse of that discretion, the fixing of the amount of fees will not be disturbed on appeal. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We find no abuse of discretion here. The chancellor considered the written arguments of the parties concerning an award of attorney fees. Appellee contended that she had been forced to expend fees to seek arrearages from appellant on alimony and medical bills, to seek a contempt citation, and to seek a motion to compel in connection with appellant’s failure to respond to discovery requests. Based upon these contentions, and the apparent credence given to them by the chancellor, we cannot say that an abuse of discretion occurred.
Regarding the expert witness fees, appellant contends that they do not fall within the type of costs that a court is allowed to award in the absence of a statute. See generally Ark. R. Civ. P. 54(d)(2). We agree. Expert witness fees are not recoverable costs. See Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995); State Farm Mut. Ins. Co. v. Brown, 48 Ark. App. 136, 892 S.W.2d 519 (1995). Because recovery of such fees is not authorized by statute or rule, the trial court erred in its award. See Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994). We note that, in two domestic relations cases, we have implied that such costs are recoverable. See Tortorich v. Tortorich, supra; Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988). However, those cases did not directly address the issue, as the Sunbelt and Brown cases did.
Based upon the foregoing, we modify the court’s decree by deducting the $4,000 awarded as payment of appellee’s expert witness fee. In all other respects, the decree is affirmed.
Affirmed as modified.
JENNINGS and Griffen, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Gerland Lee Gass appeals from his conviction of the crime of conspiracy to deliver a controlled substance for which he was sentenced to a term of thirty years in the Department of Correction and a fine of $15,000. We find no error and affirm the conviction.
At approximately 9:15 p.m. on August 2, 1984, L. C. Sandefer was travelling from Batesville to the Sulphur Rock community when he encountered a Lincoln Continental occupied by two men and being driven in an erratic manner. The Lincoln was being driven very slowly and crossed over the yellow line several times. He observed that the brake lights on the Lincoln came on several times for no apparent reason. By driving his truck very close to the rear bumper of the Lincoln he was able to ascertain that the car was licensed in Georgia and bore the license plate number GLK-310. Because of the behavior of the driver, Sandefer reported to the sheriffs office that the driver was probably intoxicated and ought to be checked out.
The next morning, David Aldridge, a deputy sheriff received a telephone call from an individual who stated that he and a companion, while driving along the highway, had seen a bank bag lying in a ditch by the side of the road. The officer went to the scene and obtained the bank bag. He described it as a zipper-type bag with a lock on the end of it and bearing the notation of “Hamilton County” and the name of a bank. The officer stated that he had no idea where Hamilton County was at that time, took the bag to the sheriffs office, and cut it open to determine what it contained. Inside he found a freezer bag containing a white powdery substance which was field tested and found to be cocaine. The persons finding the bag stated that they had found it at approximately 7:00 a.m. and delivered it to Officer Aldridge within an hour.
Charles Rutledge, an officer of the sheriffs department, stated that after learning the bag contained cocaine, he had the persons who found it take him to the location at which it was found. The bag was found in the area in which Sandefer had reported seeing the Lincoln the night before. Bryan Everett reported to the sheriffs office that on the morning of August 5, 1984, he and Sandefer observed the same Lincoln Continental on three occasions in the area where the bag had been found. He further reported that he again saw the same vehicle that after noon parked on the side of the road and observed two people in the ditch who acted as if they “were looking for something.” The sheriff’s office then directed all of its officers to locate the Lincoln bearing the Georgia license number and apprehend its occupants. Later that afternoon the officers located the car, stopped it, and took its occupants into custody. An individual named Wofford was driving and the appellant was the only passenger. At the time of the stop the officers noticed mud on the trousers and shoes of both of the occupants and a “white powdery” substance on the appellant’s shirt. No warrant had been issued for the arrest.
At the jail, the parties were required to disrobe and change into prison uniforms. Wofford emptied his pockets and the content disclosed two keys to Room 405 of the Powell Motel and a large sum of cash. A third key, bearing the inscription “No. ARC07,” was also discovered at that time. Wofford stated that they key was to a motel room in Mississippi where he had spent the night and had forgotten to return the key. It was later determined that this key fit the bag containing the cocaine. The powdery substance on appellant’s shirt was determined to be cocaine. In the pocket of appellant’s shirt was found a piece of paper bearing the name of Joseph McKinney and a Mountain View, Arkansas, telephone number.
Acting on what they then knew, the officers sought and obtained a warrant authorizing the search of the motel room and the Lincoln for controlled substances, weapons, and drug paraphernalia. Pursuant to the warrant the vehicle was searched and nothing was discovered. The officers found a number of weapons and other items in the motel room, but no cocaine or anything else linking the appellant to the conspiracy. None of the items seized in the motel room were introduced at trial. The officers remained in the motel room for a period of time during which several incoming telephone calls for the appellant and Wofford were received and electronically recorded. These recordings were not used in the trial and did not lead to any other evidence of the appellant’s guilt.
While in the motel room, one of the officers called Joseph McKinney at the telephone number found in appellant’s shirt pocket, located his whereabouts, and subsequently took him into custody. McKinney testified with immunity at the trial as to his involvement with the appellant, Wofford, and others in a conspiracy to sell the 2.2 pounds of cocaine found in the money bag. McKinney also testified that he had received a telephone call from the appellant informing him that one of the co-conspirators had thrown the “stuff’ out of the window while their vehicle was being chased by the police and the appellant asked him to go with them to Batesville to recover it.
On appeal the appellant does not contend that the evidence was insufficient to establish the conspiracy charge, but only that the evidence established that he had withdrawn from the conspiracy before the arrest and that the trial court erred in not suppressing much of the State’s evidence which established the existence of the conspiracy.
The appellant asserts that the bank bag found in the ditch was either abandoned property or found property. He contends that if it be considered abandoned property he could not be convicted of conspiracy because, by throwing away the object of the conspiracy, he had renounced the criminal purpose. In the alternative, he contends that if it be considered found property, the opening of the locked container constituted an illegal search and seizure and that all evidence of it or flowing from it should have been suppressed as “fruits of the poisonous tree.” We do not agree.
Ark. Stat. Ann. § 41-710 (Repl. 1977) provides that renunciation of the criminal purpose is an affirmative defense to a prosecution for criminal conspiracy if a conspirator (1) thwarts the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, or (2) terminates his participation in it and gives timely warning to the police or makes a substantial effort to prevent the commission of the offense under circumstances manifesting a complete renunciation of the conspiracy. The appellant’s argument presupposes that he was the person that discarded the bag and that he did so in an effort to thwart the conspiracy or terminate his participation in it. There is not a scintilla of evidence on which a finding that any of these requirements had been met could be based. Joseph McKinney, one of the co-conspirators, testified that the appellant was not the one who discarded the bag. He stated that the appellant told him that he had “sent a guy up here with the stuff and on getting to Batesville the guy had been chased or followed out of town and thrown the stuff out of the car.” He further testified that on the date of the arrest the appellant and a companion came to his house and asked him to go to Batesville with them to look for the “stuff that was throwed out of the car. . . . They said they had to go back to Batesville and look for the stuff, that they had to find it.” Unless a conspirator produces affirmative evidence of withdrawal, his participation in the conspiracy is presumed to continue until the last overt act by any of the conspirators. United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976). Our review of the record discloses no affirmative evidence of appellant’s withdrawal. To the contrary, the evidence shows that until shortly before his arrest he and at least one other co-conspirator were seeking to regain possession of the cocaine in order to continue their criminal purpose.
Appellant next contends that the trial court erred in not suppressing evidence of the cocaine found in the locked container. He argues that the evidence was obtained as a result of an illegal warrantless search and seizure. We find no merit in this contention. Appellant’s pretrial motion to suppress evidence made no mention of the content of the container or request that evidence of it be suppressed. That motion raised questions concerning the circumstances surrounding the stop and arrest and the legality of the warrant issued for the search of the Lincoln and motel room. At the commencement of the trial, appellant orally moved for suppression of evidence obtained from the search of the bag, but offered no evidence in support of that motion.
The trial court correctly ruled that appellant had no standing to challenge the legality of the search because he never asserted a proprietary or possessory interest in the container or its content, or that he was at or near the scene when it was seized, and possession of the cocaine at the time of the seizure is not an essential element of the crime of criminal conspiracy to deliver a controlled substance. Brown v. United States, 411 U.S. 223 (1973); United States v. West, 557 F.2d 151 (8th Cir. 1977). In Brown, the appellant was accused of criminal conspiracy to transport stolen goods in interstate commerce. The object of the conspiracy was seized during a search of a co-conspirator’s premises pursuant to a defective warrant. At the time of the search, the appellant was in custody in a different state. The appellant did not assert a proprietary or possessory interest in the seized contraband. The conspiracy statute under which he was charged was similar to our own and possession of the contraband was not an essential element of the offense. There the Court said:
In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.
Brown, 411 U.S. at 229. Brown also declared that the proper manner of asserting the proprietary interest or otherwise establishing standing to challenge the legality of a search is at a pretrial hearing at which the claims can be made without danger of self-incrimination and that one who fails to do so has no standing to make the challenge.
Appellant’s reliance on United States v. Chadwick, 433 U.S. 1 (1977) and Arkansas v. Sanders, 442 U.S. 753 (1979) and their progeny is misplaced. Those cases are distinguishable from the instant one in several material respects. In those cases, the seizure was made at a time when the appellants were in actual or constructive possession of the container in question and were at or near the scene when the seizure was made. Also, in both Chadwick and Sanders, the appellants were charged with possession of a controlled substance and proof of possession of the contraband was an essential element of the offense. Furthermore, the accused in both of those cases asserted and established a possessory or proprietary right in the container and standing to challenge the seizure and subsequent warrantless search at a proper pretrial hearing. Here the appellant did not do so.
The appellant next contends that the trial court erred in not suppressing all evidence obtained at or as a result of the felony stop and arrest of the appellant and his companion because the stop and arrest were without probable cause and illegal. He argues that evidence seized or obtained as a result of the arrest was “fruit of the poisonous tree. ” He contends that the suppressed evidence should include the evidence of cocaine on appellant’s shirt, the address and telephone number of McKinney found in his shirt pocket leading the officers to McKinney’s damaging evidence of the conspiracy, and the keys to the money bag and the motel room found on the person of his co-defendant, Wofford.
A.R.Cr.P. Rule 4.1 (a) (i) provides that a law enforcement officer may arrest a person without a warrant if he has reasonable cause to believe that person has committed a felony. Rule 4.1(d) provides that a warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause. Reasonable cause exists where facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Gaylor v. State, 284 Ark. 215, 681 S. W.2d 348 (1984). The test of probable cause for the stopping of an automobile rests upon the collective information of the police officers and not upon the information of the officer actually stopping the vehicle. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980).
Probable cause is simply a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused has committed a felony. The quantum of proof required to support a conviction is not required. Our courts have committed themselves to the reasonable, common-sense approach to these determinations and arrests are to be appraised from the viewpoint of prudent and cautious police officers at the time the arrest is made. Constitutional standards permit common-sense, honest judgment by police officers in their probable cause determinations. Reed v. State, 9 Ark. App. 164, 656 S.W.2d 249 (1983).
On appeal, all presumptions are favorable to the trial court’s ruling on the legality of an arrest and the burden of demonstrating errors rests on the appellant. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). When we indulge these presumptions and consider the totality of the circumstances leading up to the warrantless arrest, we conclude that there was sufficient evidence to sustain the finding of probable cause for the arrest. We further conclude that as the custodial arrests of the appellant and his companion were based on reasonable cause, the limited search of their persons incident to the arrests required no additional justification. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982). The court was therefore correct in denying the motion to suppress the evidence flowing from the seizure of appellant’s shirt and the paper containing the name and telephone number of McKinney found in its pocket. We likewise conclude that the warrantless arrest of Wofford was upon probable cause and lawful, and the motel keys and key to the lock on the bank bag found on his person were lawfully seized. In any event, the appellant would have no standing to assert Fourth Amendment rights as to any violation of the rights of Wofford. United States v. Bell, 651 F.2d 1255 (8th Cir. 1981); United States v. Baucom, 611 F.2d 253 (8th Cir. 1979).
Appellant finally contends that the trial court should have suppressed all evidence obtained as a result of the warrant issued for the search of the motel room under the fruit of the poisonous tree doctrine. He contends that the search warrant was obtained as a result of illegally seized evidence and the officers’ “misrepresentations and reckless disregard for the facts” when seeking the warrant. Appellant concedes that there is a presumption of validity with respect to the affidavit supporting the search warrant and that the attack upon it must be by allegations of deliberate falsehood or reckless disregard for the truth, accompanied by proof of those facts. Notwithstanding this, the appellant has not favored us with an abstract of the affidavit which he seeks to attack. We do not know what information was sworn to before the magistrate. That which appellant contends reflects a reckless disregard for the facts is nothing more than a few minor inconsistencies in the testimony of the police officers at the trial on the merits. Furthermore, none of the articles seized in that search were introduced into evidence at the trial.
Appellant’s allegation that the officers acted beyond the scope of the warrant because they electronically taped some telephone conversations while in the motel room is also without merit. Although the officers did listen to incoming telephone calls, the appellant does not point out to us that the content of any of them was used as evidence in the trial. While in the room, the officers did call McKinney at the number found in appellant’s shirt pocket at the time the search incident to the arrest was made. The mere fact that the officer made the telephone call while in the motel room, however, could not be violative of any Fourth Amendment guarantee. Although that conversation was recorded, the recording was not used at the trial, as McKinney testified in person. Since nothing discovered as a result of the search pursuant to the warrant was introduced at trial, no prejudice could have resulted even had the search been unlawful.
We affirm.
Glaze and Cooper, JJ., agree. | [
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Lawson Cloninger, Judge.
This is an appeal from orders of the Arkansas Public Service Commission dated October 25,1983, and April 10, 1985, in Commission Docket No. 83-010-U.
On January 17, 1983, Walnut Hill Telephone Company filed with the Commission an application requesting authority to increase its existing rates for intrastate telephone services. The total increase in annual revenues requested in the Company’s application was $596,913.00, later reduced to $580,886.00 by amended application.
Pursuant to Ark. Stat. Ann. § 73-217(b) (Supp. 1985), the Company petitioned for an interim rate increase, which the Commission initially denied. On April 27,1983, the Commission approved an interim increase of $145,321.00 in annual revenues. The case proceeded to full hearing on the merits before the Commission. The parties stipulated that Walnut Hill’s rate base was $6,021,879.00. The Commission awarded the Company an overall rate of return on that rate base of 11.68%. One unique aspect of the method employed to derive that return is that, instead of utilizing the Company’s actual capital structure, which is 13.8% common equity and just over 85% long-term debt, the PSC used a hypothetical capital structure suggested by the Company consisting of 51 % long-term debt, 41 % common equity, and the remainder in preferred stock and customer deposits. Utilizing the upper end of the PSC staff’s common equity cost calculation and the Company’s hypothetical capital structure, Walnut Hill’s overall rate of return was derived as follows:
Capital Component Capitalization Weighted Ratio Cost Cost
Long-term Debt 51.00% 11.14% 5.68%
Preferred Stock 7.90% 6.00% .47%
Common Equity 41.00% 13.30% 5.45%
Customer Deposits .10% 6.00% .01%
Totals 100.00% 11.68%
The Company’s required earnings on its rate base were calculated to be $703,355.00. Based upon the Commission’s calculation of test year net operating income of $646,596.00, the Commission found that the Company had a gross revenue deficiency of $112,540.00 and an overall revenue requirement of $1,639,949.00.
On October 25, 1983, the Commission issued Order No. 9 denying the Company’s requested increase of $580,886.00 and rejecting the PSC staffs recommendation of an increase of $74,331.00, but approving an annual rate increase of $112,540.00. Following a rehearing, the Commission issued Order No. 18 affirming the findings of Order No. 9. Walnut Hill brings this appeal from Orders 9 and 18.
Our review of this matter is limited and is governed by Ark. Stat. Ann. § 73-229.1 (Repl. 1979), which states:
The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not be extended further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
Therefore, this court can only determine whether: (1) the Commission’s findings as to the facts are supported by substantial evidence; (2) the Commission has regularly pursued its authority; and (3) the order or decision under review violated any right of the petitioner under the laws or constitutions of the United States or the State of Arkansas. Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 593 S.W.2d 434 (1980). In reviewing an order of the Public Service Commission, the court may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion; however, it is for the court to say whether there has been an abuse of discretion, even though considerable judicial restraint should be observed in finding such abuse. Russellville Water Co. v. Arkansas Public Service Commission, 270 Ark. 584, 606 S.W.2d 552 (1980). This court on appeal is not concerned with the methodology used by the Commission in arriving at the result as long as its finding is based on substantial evidence. General Telephone Co. v. Arkansas Public Service Commission, 272 Ark. 440, 616 S.W.2d 1 (1981). The court must determine whether the Commission’s order violates appellant’s constitutional rights by fixing a rate which is so low as to amount to confiscation of its property. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978); City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W.2d 474 (1952). The result reached in utility rate cases, not the method employed, controls; and judicial inquiry is concluded if the decision is supported by substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory. Southwestern Bell, supra; Arkansas Public Service Commission v. Lincoln-Desha Telephone Co., 271 Ark. 346, 609 S.W.2d 20 (1980).
In Smyth v. Ames, 169 U.S. 466 (1898), the United States Supreme Court established the minimum due process requirements for state regulation of utility rates. In that decision the Court stated that a state’s utility commission must first determine the fair value of the property being used by the utility for the convenience of the public. The Court held that after determining a percentage “fair return” on the rate base the commission must calculate a rate schedule that will allow the company to realize revenues sufficient to earn that fair return. However, Smyth gave little guidance to state utility commissions on the difficult question of what factors should be considered in computing the rate base or, important to the case before us, in establishing a fair return.
In 1923, the Supreme Court enumerated a number of factors regulatory commissions should consider in determining a rate of return. In general, the Court found that a utility was entitled to a return “equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties . . . .” Bluefield Water Works & Improvement Co. v. Public Service Commission of West Virginia, 262 U.S. 679, 692 (1923). These guidelines were refined in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944). Significantly, the standard of regional or geographical comparisons set out in Bluefield was omitted, and the Court stated that comparisons should be made with other companies having corresponding risks. In so doing, the Court stated:
From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock, [citation omitted] By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital, [citation omitted] The conditions under which more or less might be allowed are not important here. Nor is it important to this case to determine the various permissible ways in which any rate base on which the return is computed might be arrived at. For we are of the view that the end result in this case cannot be condemned under the Act as unjust and unreasonable from the investor or company viewpoint.
Hope, supra, at 603.
On January 28,1982, Walnut Hill entered into a Telephone Loan Contract with the Rural Electrification Administration (“REA”) and the Rural Telephone Bank (“RTB”), the latter being a federal agency providing financing for rural telephone companies under the direction of the REA. The loan contract enabled Walnut Hill to refinance existing indebtedness, which carried with it interest rates in excess of twenty percent, at more reasonable rates in the eleven percent range. The loans also have enabled the Company to commence or complete much-needed improvements in service.
One specific provision of the loan contract has given rise to the controversy addressed by the first point of appellant’s brief, specifically section 4.16, which reads as follows:
Obligation to Seek Recommended Tariff. The Borrower shall, as soon as possible after the construction of any major portion of the facilities financed by the Loan is completed, or sooner, if requested by the Administrator, (a) seek and use its diligent best efforts to obtain all necessary regulatory body approvals for a tariff which (1) will provide for all one-party service, (2) does not include mileage or zone charges, and (3) is designed to produce net income or margins before interest at least equal to 150 per centum of the interest requirements on all of the Borrower’s outstanding and proposed loans, and (b) to place such tariff into effect as soon as permitted by applicable laws and regulations.
Walnut Hill contends, for its first point for reversal, that subsection (a)(3) requires that the Commission set rates sufficient to produce a times interest earned ratio (“TIER”) of at least 1.5. Simply put, a TIER is an indicator of a borrower’s ability to meet interest expenses. A TIER is a measure of interest coverage reflective of how many times interest obligations are covered by funds available to pay that interest. Therefore, a company with a TIER of 1.0 theoretically has earnings sufficient to meet its interest expenses and nothing more. It follows that the higher a company’s TIER, the better able it is to meet its obligations. Walnut Hill requested that the Commission set rates sufficient to produce a TIER of 1.75, and contends that the Commission was bound by the aforementioned provision of the loan contract between Walnut Hill and the REA to set rates sufficient to produce a TIER of at least 1.5. The Commission refused to set rates designed to accomplish any specific TIER and rejected the argument that the Commission was legally bound to set rates because of the terms of section 4.16 of the loan contract.
Both the Company and the Commission agree that use of a TIER as a rate-making device is virtually unprecedented in the case of an investor-owned utility. The testimony tended to show, and our research indicates, that use of a TIER by which rates may be set is most common in the cases of cooperative associations, which are by definition owned by their rate-payers and to whose benefit any excess revenues recovered through rates would accrue. It is notable that the parties agree that rates producing a TIER of 1.5 for Walnut Hill would yield a return on equity to Company stockholders of 51.5%. The record reflects that a TIER is simply one aspect of a utility company’s financial health and does not take into account all aspects of a company’s costs of delivering utility service to its customers. Use of a TIER as a ratemaking tool is not a common practice in cases of investor-owned utilities, and any method used to set rates should account for all aspects of a public utility’s costs of delivering utility service to its customers. The Public Service Commission has wide discretion in choosing its approach to rate regulation, and the PSC is not bound to any particular formula. Southwestern Bell, supra. We cannot say that the Commission’s refusal to set rates based on a TIER, or designed to yield a TIER of at least 1.5 as requested by the Company, was arbitrary, unreasonable, or unsupported by substantial evidence.
Walnut Hill also contends that the Commission is preempted in this matter by both federal and state law. We do not agree.
In support of its position that the PSC is bound to set rates based on the contract between the Company and the REA, Walnut Hill relies on Ark. Stat. Ann. § 73-202.2 (Supp. 1985), which provides in pertinent part as follows:
Jurisdiction of the said Commission shall not extend to loans made or guaranteed by the Rural Electrification Administration of the United States Department of Agriculture, the Federal Financing Bank, or such other agency or instrumentality as may be established by the United States Government for these purposes. . . .
Walnut Hill cites the following language from 7 U.S.C. § 948(b)(4) (1976) in further support of its position:
Loans shall not be made under this section unless the Governor [the administrator of REA] of the telephone bank finds and certifies that in his judgment ... the borrower has the capability of producing net income or margins before interest at least equal to 150 per centum of the outstanding interest requirements on all of its outstanding and proposed loans, or such higher per centum as may be fixed from time to time by the Telephone Bank Board. . . .
A fair reading of Section 4.16 of the loan contract is that Walnut Hill simply obligated itself to seek rates designed to achieve a TIER of 1.5. The evidence shows that, in the view of the REA, the Company had fulfilled its obligation. We cannot say that the Commission was in any manner attempting to exercise jurisdiction over the loan agreement in question. Instead, the record is clear that the PSC was not dictating the terms, conditions, or performance of any party to the contract. We cannot read Ark. Stat. Ann. § 73-202.2 (Supp. 1985) as broadly as urged by Walnut Hill; were the Company’s view of 73-202.2 correct, any utility could, by simply contracting with the REA, divest the PSC of control over utility rates.
Neither are we persuaded that 7 U.S.C. § 948(b)(4) mandates that the PSC set rates based upon a contract between an Arkansas utility and an agency of the federal government. The language of the Act speaks of the RTB’s assessment of the borrower’s ability to achieve a 1.5 TIER. In refusing to utilize a TIER as a method by which to set rates, the t^umnnssion was not interfering with Walnut Hill’s relationship with the Federal agency. Bryan Howerton, a spokesman for the governor or administrator of the REA, testified that, in the view of that agency, Walnut Hill had fulfilled its contractual obligation to the agency. While the governor of the Telephone Bank may not advance funds at some time in the future to Walnut Hill, the record does not demonstrate that he will not because of a perceived inability on the part of the Company to achieve an acceptable TIER. The evidence does not demonstrate that the Company’s access to REA funds will be foreclosed unless the Commission sets rates specifically designed to achieve a TIER of at least 1.5. Moreover, we do not see that the Commission’s refusal to set rates specifically designed to allow the Company to achieve a TIER of 1.5 renders the Company incapable of achieving that TIER.
Walnut Hill’s second point for reversal is that the rate of return authorized by the PSC is unreasonable, confiscatory, arbitrary, and not based upon substantial evidence or sufficient findings of fact. Specifically, the Company objects to the return on the equity component of the overall rate of return as being too low and not reflective of Walnut Hill’s peculiar circumstances. The Company argues that, if a TIER is deemed inappropriate as a means by which its rates should be set, the application of a more traditional rate-making formula by the Commission would also be inappropriate.
The Commission adopted the rate of return methodology proposed by staff, which is known as the weighted cost of capital approach. In this methodology, the various components of a company’s capital structure (here, long-term debt, preferred stock, common equity, and customer deposits) are weighted as to their costs with respect to their relative proportions in the total capital structure and then added together to obtain an overall cost figure for the entire capital structure. The Company’s actual capital structure is not in dispute. Both the staff and the Company agree on the cost of all elements of the capital structure except the common equity component. The Commission set the return on equity at 13.3%, the high end of a range suggested by staff witness Joseph Chrisman.
Chrisman arrived at his return on common equity recommendation by use of what is known as the “discounted cash flow” (“DCF”) model, which attempts to derive an allowable return on equity based upon an estimate of investors’ expectations. The DCF formula involves a mathematical computation which takes into account current dividends per share, current market price per share, and the expected growth rate in dividends per share; the result is a percentage figure representing the required return on equity for the particular utility under consideration.
The DCF formula depends on market information for its application. This presents a problem with companies such as Walnut Hill, whose stock is not market-traded. Common regulatory practice in situations such as this is to utilize information from other market-traded companies engaging in the same type of utility business as a model or proxy. It is the execution of this practice in these circumstances about which Walnut Hill complains.
The staff witness utilized eight large, market-traded companies, none of which provide telephone utility service in Arkansas. Utilizing information from financial publications, the staff witness suggested that the Commission allow Walnut Hill a return on equity of 13.1%, which was the midpoint of a range derived from the eight market-traded companies’ returns of 12.92% to 13.3%. The PSC made a finding of fact that Walnut Hill is “more risky than some but less risky than none” of the proxy companies and, based on that determination, set Walnut Hill’s return on equity at the top end of the range derived from the calculation.
The Company contends that the adoption by the PSC of the top end of the staff’s suggested return on equity range is not justified, pointing out that there are wide disparities between Walnut Hill and the eight market-traded companies from which witness Chrisman derived his return on equity component. The Company contends that the common equity cost component should be 17.25%, as suggested by its witness, Dr. Kenneth Hubbell. Use of this figure instead of the 13.3% figure employed by the Commission would result in a calculation of Walnut Hill’s overall rate of return to be 13.23% rather than the 11.68% allowed by the Commission. Company witness Hubbell, however, presented very little data justifying his suggested return on equity, but instead stated simply that his figure was based on his perception of Walnut Hill’s risk position.
Walnut Hill forcefully argues that other Arkansas companies similarly situated to Walnut Hill should be utilized in determining Walnut Hill’s return on equity, and it presented in its post-hearing brief to the Commission a list of eight small investor-owned utilities in Arkansas which are quite similar in many respects to Walnut Hill. However, there is no evidence that these companies’ stocks are market-traded or that there are any market data available for them. Likewise, there is no evidence in the record as to which particular methodology was utilized in determining those companies’ returns on equity or whether those figures listed by Walnut Hill were simply calculated or were actually awarded by the PSC. For these reasons alone, the Commission did not err in declining to utilize the evidence offered by Walnut Hill to determine the Company’s rate of return. The methodology as utilized in this case is appropriate under the circumstances, and we cannot say that the result it yields is confiscatory, because the orders provided for rates designed to produce sufficient revenues to cover debt service, meet legitimate operating expenses, and provide a return on the shareholders’ investment.
Following the principles set forth in the Smyth, Bluefield, and Hope decisions, the primary objective in ratemaking is to set rates so that the utility will be able to meet its legitimate operating expenses as well as to pay creditors and provide dividends to shareholders. The utility’s return should be sufficient to maintain its financial integrity so that it might attract new capital. Hope, supra. There is substantial evidence in the record before us that this primary objective was met in this case.
In its third point, the Company correctly directs our attention to the fact that the Commission utilized an erroneous intrastate income tax expense in calculating the revenue requirement. The Commission concedes that an erroneous calculation was utilized, and the Commission agrees that the correct tax expense calculation is that urged by the Company. We therefore modify, pursuant to Ark. Stat. Ann. § 73-229.1(b) (Supp. 1985), the revenue requirement calculation as follows to include an allowance for the correct income tax expense:
Description Corrected Amounts
Total Rate Base $6,021,879
Operating Revenues 1,527,409
Operating Expenses 894,180
Net Operating Income $ 633,229
11.68% Required Return on Rate Base
Required Earnings on Rate Base 703,355
Earnings Deficiency 70,126
Gross Revenue Conversion Factor 1.98275
Gross Revenue Deficiency 139,042
Revenue Requirement 1,666,451
The Arkansas Public Service Commission shall permit Walnut Hill Telephone Company to file tariffs reflecting rates designed to produce revenues of $1,666,451.00.
Finally, the Company urges that, because a hypothetical capital structure was utilized, a “synchronizing” hypothetical income tax expense adjustment should be made. As noted previously, the Commission adopted a hypothetical capital structure for calculating revenues for Walnut Hill. The use of a hypothetical capital structure was found by the Commission to be reasonable “[i]n order to blunt the revenue impact of the Company’s massive borrowing.” The practical effect of this action is to generate a portion of the overall rate of return by imputing a larger common equity component (which is higher in cost than debt) into the weighted cost of capital calculation. In turn, this raises the overall cost of capital (and hence the overall rate of return) from 11.39%, utilizing the actual capital structure, to 11.68% with the hypothetical structure. As stated by the Commission, one reason for this action was to “provide incentive for the Company to restructure its capital sources to increase the amount of equity.”
The record reflects that a hypothetical capital structure is normally utilized in instances where a company has a relatively low ratio of debt to equity, with a hypothetical interest expense being included in the revenue requirement calculation. Since debt is generally lower in cost than equity and carries with it the benefit of lowering income tax expense (because interest expense is deductible), this action arbitrarily lowers the amount of income tax expense which must be borne by ratepayers. The actual tax still must be paid by the company; however, it is not recognized as a recoverable expense. Here, the reverse is true: a hypothetical capital structure was utilized to benefit the Company by artificially increasing the amount of revenues recoverable from consumers by overstatement of the equity component of the Company’s capital structure. The hypothetical overstatement of the equity component results in the hypothetical understatement of the debt component of the capital structure. The resulting hypothetical understatement of interest expense would increase the hypothetical tax liability of the Company. The problem arises with regard to the amount of income tax expense to be included in the revenue requirement calculation.
The question is whether a hypothetical lower interest expense should be imputed to Walnut Hill, resulting in a higher hypothetical tax liability, which is in turn included in the revenue requirement recoverable from ratepayers. We think not. The PSC can adjust virtually any expense in setting rates which are just and reasonable for both a utility and its customers. The use of a hypothetical capital structure should not foreclose the Commission’s duty to utilize whatever reasonable figures, actual or hypothetical, it deems necessary in appropriately exercising its discretion. The PSC is free, within the ambit of its statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. Southwestern Bell, supra, at 567, citing Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575 (1942). This is especially appropriate where, as here, the hypothetical capital structure was used as a tool by which additional revenues could be generated for the benefit of the Company. Walnut Hill’s actual low income tax expense, which results from its high interest expense, was properly utilized as a known component of the revenue requirement calculation and is supported by substantial evidence.
The decision of the Commission is modified with respect to utilization of the correct income tax expense in calculating the revenue requirement of the Company, as noted above, and the orders appealed are in all other respects affirmed.
Affirmed as modified.
Glaze, J., concurring.
Corbin, J., not participating.
Howerton testified that the governor of the RTB and the administrator of the REA are the same person.
The DCF model is mathematically expressed as follows: K = (D/P) + g, where “K” is the investors’ required rate of return (cost of equity), “D” is the expected dividend, “P” is the current market price of the stock, and “g” equals investors’ long-term growth expectation.
The companies were: Bell Canada, Cincinnati Bell, Continental Telephone, GTE, Mid-Continent Telephone, Rochester Telephone, Southern New England Telephone, and United Telecommunications. | [
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Lawson Cloninger, Judge.
Appellants raise three points for reversal in this appeal from the trial court’s dismissal of their complaint against appellee St. Paul Surplus Lines Insurance Company. We find none of their arguments persuasive, and we accordingly affirm the summary judgment granted below.
Appellants contracted with appellee insurance company to insure business property consisting of buildings and their contents at four different locations. The single premium payment was $7,392. A “Schedule of Locations” attached to the policy sets forth the value of each building insured and its contents; the combined figures amount to $528,000.
While the policy was in force, the building, machinery, and other contents situated at “location #2” in Marshall, Arkansas, were completely destroyed by fire. The schedule valued the building at $80,000 and the contents at $140,000; appellee carrier paid appellants the combined amount of $220,000.
Appellants filed an action seeking the difference between the total policy coverage of $528,000 and the $220,000 paid, as well as damages and interest. Appellees replied that the “Schedule of Locations” limited appellants’ recovery to the value assigned the property at each site. Both parties filed motions for summary judgment, and the circuit court held that the schedule imposed a recovery limit of $220,000 for the property in question. This appeal followed.
In the first of their alternative arguments for reversal, appellants contend that the trial court erred in not finding the insurance policy to be “entire” under McQueeny v. Phoenix Ins. Co., 52 Ark. 257, 12 S.W. 498 (1889). Put another way, appellants are saying that the judge erred in determining that insurance on “location #2” was limited to $220,000. They quote the following sentence from McQueeny, supra-. “If the consideration is single the contract is entire, whatever the number or variety of the items embraced in its subject.” 52 Ark. at 259-260. Hence, they insist, the fact that they made a single premium payment of $7,392 entitles them to recover the amount of their actual loss sustained at the one location up to the total policy amount of $528,000.
We believe that appellants have taken the language of McQueeny out of context. The court in that case was addressing the issue of divisibility with respect to the breach of a part of an insurance contract. Divisibility is discussed in Couch on Insurance 2d, § 17.1, as follows: The Arkansas Supreme Court said in Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 202, 37 S.W. 959 (1896):
The question of divisibility or severability of insurance, this is whether the contract of insurance is entire or severable, is of great importance in determining the effect of a breach of the contract as to a part of the subject matter of the insurance, since, if the contract is entire, all of the protection will be lost if there is a breach as to any part of risk, whereas, if the contract is severable, it will be avoided only as to the part directly affected by or connected with the breach. (Emphasis added).
The fact that separate amounts of insurance were apportioned to separate items or classes of property did not make the policy divisible. The contract and risk being indivisible, the contract is entire, and any breach which renders it void as to a part of the property affects it in the same manner as to the remainder.
Omitted from appellants’ brief was the following statement by the court in McQueeny, supra: “It is more reasonable, we think, to hold that the sole effect of the apportionment of the amount of insurance to the different subjects insured is to limit the extent of the insurer’s risk, upon each item, to the amount named.” 52 Ark. at 261. It is clear from a reading of both of the cited cases that divisibility and apportionment are distinct and essentially unrelated concepts; an insurance contract may be entire although the amount for which it is issued is apportioned to different items. There is no error on the trial court’s part in finding the insurance coverage on “location #2” limited to the $220,000 apportioned in the schedule.
For their second point in the alternative, appellants argue that the trial court erred in not finding the insurance contract to be ambiguous, and therefore erred in not ruling in favor of the insured. Appellants cite Aetna Cas. & Sur. Co. v. Stover, 327 F.2d 288 (8th Cir. 1964), for the principle that when a policy provision is subject to more than one reasonable interpretation, the interpretation favoring the insured is adopted. Appellants assert that the ambiguity in the instant case derives from the fact that, while on the declaration page of the policy the “Description and Location of Property Covered” contains the phrase “See Schedule Attached,” the “Amount of Insurance” on the same page simply states the total of $528,000, with no qualification by reference to the “Schedule of Locations.”
We are unable to detect any ambiguity in the example provided by appellants. The reference to the schedule under the “Description” incorporates the apportioned amounts of coverage as a part of the listing of the items of property. In the construction of an insurance contract, different clauses must be read together and the instrument construed so that, if possible, all of its parts harmonize. Pate v. United States Fid. & Guar. Co., 14 Ark. App. 133 (1985). The intention of the parties is to be gathered not from particular words and phrases but from the context of the agreement as a whole. Id. The purpose of appellants was to obtain coverage for their business property at each of the four locations. It is not logical to believe the parties anticipated the simultaneous destruction of property at all locations; the carrier clearly set forth the limitations of coverage at each site. The trial court’s holding thus merely gave effect to the intent of the parties.
Appellants’ final argument in the alternative is that the trial court erred in granting summary judgment for appellee insurance company because a genuine issue of material fact existed concerning the purpose for which the schedule was included in the policy and the intent of the parties regarding it. This question, however, was not addressed below. Instead, both parties moved for summary judgment, requesting that the court determine as a legal matter whether the “Schedule of Locations” delineated the policy limits at the location in question. No issue of fact remained to be resolved.
Affirmed
Corbin and Mayfield, JJ., agree. | [
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Tom Glaze, Judge.
Appellant, Wildwood Contractors, appeals a judgment from the Union County Circuit Court against it in favor of appellee, Thompson-Holloway Real Estate Agency, for $982.00, which represents additional insurance premiums for coverage written by appellee for appellant through the Hartford Insurance Company. The amount was determined as a result of an audit of actual business activity of appellant for a one-year period in order to “true up” premiums with actual risk incurred by the insurance company during the audit year. The audit was conducted not by appellee or its employees, but rather by the Hartford Insurance Company, which wrote appellant’s insurance through appellee. The case was tried to the court without a jury, and the only witness was Robert H. Archer, a partner in the appellee insurance agency, who presented an exhibit consisting of the disputed audit. The audit was admitted into evidence over appellant’s objection. Based upon the audit, the trial court found for appellee and entered judgment, finding that the audit constituted a record of regularly conducted business activity which fell within the hearsay exception provided in Unif. R. Evid. 803(6).
For reversal, appellant contends that the trial court erred in admitting the results of the audit as a business record within the hearsay exception provided in Unif. R. Evid. 803(6). The rule provides that records of a regularly conducted business activity are not excluded by the hearsay rule from evidence “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”
Rule 803(6) articulates, inter alia, the types of records falling within the business records exception. As stated in Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979), there are seven factors which must be present in order for a business record to be admissible under the rule: the evidence must be (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act occurred, (4) by a person with knowledge, or from information transmitted by such a person, (5) kept in the course of a regularly conducted business, (6) which has a regular practice of recording such information, (7) all as shown by the testimony of the custodian or other qualified witness. Id. at 728, 589 S.W.2d at 598-599.
While this case presents several close questions as to whether the audit in question falls within the “business records” exception to the hearsay rule, we cannot say from our review of the evidence that the trial court abused its discretion in admitting the audit into evidence. The audit in question certainly qualifies as a “record” of “acts or events” consisting of business activity during a specific calendar year. In order to be admissible under Rule 803(6), the audit report must be made at or near the time of the examination of the records upon which it is based, and not necessarily when the activity shown in the audited records was performed. Pfeffer v. S. Texas Laborers’ Pension Trust Fund, 679 S.W.2d 691, 694 (Tex. App. 1 Dist. 1984). Here, the audit was conducted within a reasonable time.
Archer testified that the record was compiled from information transmitted by some person with knowledge who worked for appellant. Finally, audits such as the one here, according to the evidence, are a regularly conducted business activity and are utilized as a regular practice by the insurance underwriter to square actual risk incurred with anticipated risk, and the audits are relied upon to adjust premiums.
It is the fact that regularly kept business records are relied upon for business decisions that makes them trustworthy enough to be admissible as an exception to the hearsay rule. See E. Cleary, McCormick On Evidence, Section 306 (3d Ed. 1984). A trial judge has wide discretion to determine whether a business record lacks trustworthiness. See United States v. Page, 544 F.2d 982, 987 (8th Cir. 1976).
Finally, appellant strongly contends that Archer was not qualified to sponsor the audit because he could not of his own personal knowledge vouch for the results of the audit or even as to the manner in which it was conducted. However, the business records exception does not mandate that the custodian be able to explain the record-keeping procedures in question. United States v. Henneberry, 719 F.2d 941, 948 (8th Cir. 1983). It is not necessary that the sponsoring witness have knowledge of the actual creation of the document in question; the personal knowledge of the sponsoring witness regarding preparation of the business record goes to the weight rather than the admissibility of the evidence. See Page, supra. The trial judge has the discretion to determine the qualifications of witnesses and the admissibility of evidence. Smith v. Chicot-Lipe Insurance Agency, 11 Ark. App. 49, 51, 665 S.W.2d 907, 908 (1984). See also Cates, supra.
Based upon our review of the evidence, we cannot say that the trial court abused its discretion in finding that the audit in question fell within the requirements of Unif. R. Evid. 803(6) as a business record exception to the hearsay rule and was therefore admissible. The decision of the trial court is affirmed.
Affirmed.
Cooper and Cloninger, JJ., agree.
According to Archer, the audit was conducted and the report prepared within 90 to 120 days of February 11,1984, which was the end of the period for which insurance was provided.
In fact, the parties had utilized such audits on at least three previous occasions, resulting in additional premiums being paid by appellant in two of those years and appellant receiving a refund for one of those years. | [
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Lawson Cloninger, Judge.
Appellee, Clara Jones, was granted a decree of divorce from appellant, Billy J. Jones, on December 13,1984, by the Pope County Chancery Court. At the conclusion of the trial, the chancellor ordered the parties’ real property sold and the proceeds divided equally. He found an individual retirement account and pension plan in appellee’s name to be marital property, but awarded appellee the entire interest in them, stating as his reasons the eight factors specified in Ark. Stat. Ann. Section 34-1214(A)(l) (Supp. 1983), emphasizing that it was appellee who contributed to their acquisition and cited appellant’s ability to support himself.
The chancellor further found that a certain piece of real property in Dover, Arkansas, owned by appellee’s sister and brother-in-law, the Myers, was not being held in trust for appellee and dismissed appellant’s third-party complaint against the Myers. He further stated that, if the “Dover property” was found to be held in trust for appellee, it would be inequitable to give appellant any interest therein.
Appellant argues two points for reversal: (1) The finding of the trial court that the “Dover property” was not held in trust for appellee is against the preponderance of the evidence; and (2) the trial court failed to comply with Ark. Stat. Ann. Section 34-1214(A)(1) (Supp. 1983) in awarding appellee the entire interest in her individual retirement account and pension plan which the trial court found to be marital property. We do not find appellant’s arguments persuasive, and we affirm.
For his first point, appellant contends there was insufficient evidence for the trial court to find that the “Dover property” belonged to the Myers. Because appellee advanced the Myers part of the purchase money for the property and there was no written proof that the advance was a loan, appellant contends that the trial court should have found a resulting trust in favor of appellee. We do not agree.
A resulting trust must be proven by clear and convincing evidence. Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951); Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981). Appellee and her sister testified there was no agreement that appellee was to own the “Dover property.” Appellee loaned the Myers money, from which Myers paid the down payment, closing costs, and insurance payment on the property; however, the loan was repaid in full prior to trial. All documents of title relating to the property were in the Myers’ names. In Byers v. Danley, 27 Ark. 77 (1871), the court held a resulting trust will not attach in the person paying the purchase money, unless the parties intended that the estate should vest in him. We cannot say on the basis of the evidence before us that the trial court’s findings were clearly against the preponderance of the evidence or that they were clearly erroneous.
Although we review chancery cases de novo, we will not reverse the chancellor unless his findings are clearly erroneous or clearly against the preponderance of the evidence, giving due regard to the opportunity of the chancellor to judge the credibility of the witnesses. ARCP Rule 52(a); Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984).
For his second point, appellant contends that the chancellor abused his discretion in awarding appellee the entire interest in her individual retirement account and pension plan because the court failed to comply with the requirements of Ark. Stat. Ann. Section 34-1214(A)(l) (Supp. 1983) in making an unequal division of marital property. We do not agree with this contention.
Ark. Stat. Ann. Section 34-1214(A)(1) controls the division of marital property. It states as follows:
Ark. Stat. Ann. Section 34-1214(A)(l) (Supp. 1983). (1) All marital property shall be distributed one-half [Vi] to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the Court’s division of property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.
At the conclusion of the trial, the chancellor found appellee’s pension plan and individual retirement account were marital property but stated it would be inequitable to give appellant any part of them. He stated he was relying on the reasons cited in Section 34-1214(A)(l) for not equally dividing the property, and the main reasons were that it was appellee who contributed to their acquisition and appellant was able to support himself. He then read into the record the nine factors listed under Section 34-1214(A) (1). In the decree, however, no reasons were specified for an unequal division except that the decree stated the grounds for this action are those stated orally by the court at the conclusion of the trial. We believe the chancellor sufficiently complied with Section 34-1214(A)(1) in stating his reasons for not equally dividing the pension plan and individual retirement account at the conclusion of the trial.
Appellant contends the chancellor’s mechanical recitation of his reasons does not comply with the statute. For this proposition, appellant cites Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (1980), and Glover v. Glover, 4 Ark. App. 27, 627 S. W.2d 30 (1982), which held when marital assets are not divided equally the chancellor is required by statute to state in writing the reasons for not so dividing the marital property.
Davis and Glover, however, are distinguishable from the present case, because they were decided prior to the 1983 amendment to Section 34-1214. Prior to the 1983 amendment, Section 34-1214(A)(l) read, “When property is divided pursuant to the foregoing considerations the court must state in writing its basis and reasons for not dividing the marital property equally between the parties.” (Emphasis ours.) In 1983, Section 34-1214 was amended, and the requirement that the chancellor must state his basis for making an unequal division of marital property in writing was deleted. Moreover, in Davis and Glover, the courts failed to state any reason for not dividing the property equally. In the case at bar, the chancellor stated his reasons for making an unequal division at the conclusion of the trial.
Appellant further argues that even if this court finds the chancellor complied with Section 34-1214(A)(1), there is no evidence in the record to support an unequal division. Appellee testified she contributed 70% of the family’s support since 1972 and testified to the amount of her yearly income and that of appellant. She also stated that all the funds contributed to her pension plan were paid solely by her employer. Appellant testified that his employment had been pretty steady since 1972 and did not introduce anything into the record to indicate he was unable to support himself. From this testimony, we cannot say that the chancellor was in error in making an unequal division.
Affirmed.
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Tom Glaze, Judge.
Appellant was convicted, by the trial court sitting as a jury, of robbery and sentenced to twenty years in the Arkansas Department of Correction. He appeals his conviction based on three alleged errors committed by the trial court, and argues that his probation was improperly revoked. We affirm.
Appellant’s first point for reversal is that no robbery was proved because there was insufficient evidence that a theft of property occurred. He argues that, because he was unaware of the acts of his female companion, he cannot be held liable for her actions.
On October 22,1983, a store clerk observed appellant and a woman, whom the clerk previously had watched for shoplifting, coming into the dress department and walking around together. The woman took one dress into a dressing room and then, before she would have had time to try it on, came out with it, and went back in with at least three dresses. The clerk said the woman was carrying the dresses as if she were trying to hide them, so the clerk called the store’s security. When the woman came out with only two dresses, the clerk checked the dressing room and found nothing. She alerted the security officer, an off-duty policeman, and when appellant and the woman left the store, he followed them outside. The officer testified he stopped them in the parking lot, identified himself as a police officer, and asked for identification. Appellant produced his driver’s license but the woman had none. The officer asked them to accompany him back into the store. When they refused, he testified that he told them they were under arrest for shoplifting. Appellant and the woman began cursing, and when she started walking away, the officer said he grabbed her by the arm and attempted to place a handcuff on her. She then jerked away, and a scuffle ensued between appellant and the officer. The officer, who was pinned to the ground, was then assisted by an on-looker who got between the woman and the officer’s gun. Another police officer arrived, and appellant was handcuffed and taken into custody. The woman escaped, but two dresses were found on the parking lot, about ten feet from where appellant was arrested.
Appellant’s version of the events was almost in total conflict. He testified that he did not really know the woman, and that he was just giving her a ride to the store where she said she needed to pay a bill. After waiting for her in his car for about thirty to forty minutes, he said he went into the store, found her, and told her he needed to leave because he had to meet someone. He denied being with her in the dress department, and said he did not see her conceal any dresses. Appellant said he became involved in the scuffle with the officer when the officer grabbed the woman’s arm and pushed it behind her, grabbed the back of her neck, and slammed her into the car. He said he and the officer exchanged words, and then the fight began.
On appeal in criminal cases, we view the evidence in the light most favorable to the appellee, and, whether tried by judge or jury, we will affirm if there is substantial evidence to support the finding of the trier of fact. Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Substantial evidence is that evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Each participant is criminally liable, ultimately, for his own conduct, but he cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Id.
The State’s evidence tended to show that appellant accompanied his female companion into the dress department. They left the department and store together, and refused to come back into the store after the officer accused them of theft. Appellant wrestled with the officer, permitting the woman to escape, and two dresses were found within ten feet of the arrest. We hold this is substantial evidence to support the conviction of robbery.
Secondly, appellant contends that the security officer had no knowledge that would give rise to the shoplifting presumption. We cannot agree. Ark. Stat. Ann. § 41-2202(2) (Repl. 1977) provides that the knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or business creates a presumption that the actor took the goods with the purpose of depriving the owner thereof. The State’s evidence that appellant was involved in a shoplifting incident need not be restated. Suffice it to say, there was sufficient evidence placing appellant on the premises with the woman to give rise to the necessary presumption.
Appellant further argues that Ark. Stat. Ann. § 41-2251 (Supp. 1985) is unconstitutional because it allows a private individual to make a Terry stop. This issue need not be addressed.
First of all, appellant cites no cases, other than Terry v. Ohio, 392 U.S. 1 (1968), and makes no convincing argument on this subpoint. Secondly, he does not claim that any evidence should be suppressed, and a flaw in the manner of arrest is not sufficient cause to set aside a judgment of conviction. Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984).
Appellant’s third point for reversal is that the trial court erred in refusing to grant him a continuance on the day of trial. Appellant was charged on October 31, 1983, and the public defender was appointed as counsel. On January 8, 1985, appellant visited with another attorney, Mr. Bryant, about representing him, and about ten days before trial, appellant again mentioned to Bryant that he wanted to hire him. Mr. Bryant agreed, provided appellant could pay him a retainer. On April 8, 1985, the day of trial, appellant requested to substitute Bryant as counsel and asked for a twenty-four hour continuance, due to the late entry of counsel. The court granted his request to substitute counsel, but denied his motion for a continuance.
Whether to grant a continuance is a matter lying within the sound discretion of the trial court and will not be overturned absent a showing of clear abuse of discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Parks v. State, 11 Ark. App. 238, 669 S.W.2d 496 (1984). The burden lies with the appellant to demonstrate both the abuse and resulting prejudice. Id.
In denying the motion for a continuance, the judge noted that the witnesses were present and ready for trial. There is no indication in the record nor does appellant allege any prejudice from the denial of his motion for a continuance. We find no abuse of discretion, and therefore, uphold the denial of the motion.
Finally, appellant contends that he did not waive the sixty-day requirement imposed in a revocation hearing pursuant to Ark. Stat. Ann. § 41-1209(2) (Repl. 1977). Consequently, he argues, the trial court erred in revoking his probation.
Section 41-1209(2) provides that a suspension or probation shall not be revoked except after a revocation hearing, and that such hearing must be held within a reasonable time after defendant’s arrest, not to exceed sixty days.
Appellant was charged with violating the terms of his suspended sentences on November 3,1983. On July 12,1984, he appeared and entered a plea of not guilty to the robbery charge. The following exchange also took place:
The Court: And these other four, I believe, are revocations. Do you wish to enter a plea of not guilty on those also?
Mr. Allen: We plead not guilty to those, Your Honor. We would waive the 60-day requirement, and ask that they be set the same day as the jury trial.
On appeal, appellant argues that he did not know he had a right to a revocation hearing within sixty days of his arrest, and that he did not personally waive the requirement. He contends that his right to a hearing within sixty days is a fundamental right guaranteed by the fourteenth amendment of the United States Constitution. The State argues, however, that while the right to a hearing before probation or parole can be revoked is a constitutionally protected right which cannot be waived without prior consent of the defendant, the sixty-day requirement is only a statutory rule of procedure. As long as the defendant is afforded a hearing and has a reasonable time to prepare, there is no violation of his right to due process. We agree with the State.
Appellant’s suspended sentences were revoked after a full trial and verdict of guilty on the robbery charge. Thus, there is no question that he was afforded his due process rights before the revocation decision was made. In addition, the appellant suffered no prejudice by the revocation hearing not being held within the sixty-day limitation because after appellant’s arrest on the robbery charge, he already had been incarcerated on an unrelated charge. As the court noted in Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980), the purpose of the sixty-day limitation period is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing. When he is already serving time on another charge, the limitation loses its meaning. That was the case here.
Furthermore, appellant’s attorney’s waiver of the sixty-day requirement was consistent with the American Bar Association’s “Standards Relating to Probation.” In Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), the court noted that the standards recommend that a revocation proceeding based solely upon the commission of another crime not be initiated until after the disposition of the other charge. The court went on to state that the prosecutor and defendant may prefer that action on the revocation petition be deferred until a decision has been reached in the other case. That is exactly what happened here.
Appellant has not demonstrated how he was jeopardized by his counsel’s action nor from our review do we find any prejudice.
Alfirmed.
Cracraft, C.J., and Corbin, J., agree.
Section 41-2251 provides that a person who engages in conduct that gives rise to the shoplifting presumption may be detained for a reasonable time and in a reasonable manner by a peace officer or a merchant or a merchant’s employee.
While appellant argues that his probation was improperly revoked, we note from the record that it was suspended sentences that were revoked by the State. Appellant was sentenced to probation on a federal charge, and that probation was revoked previously, for reasons other than the robbery charge. | [
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Donald L. Corbin, Judge.
This appeal from the Arkansas Workers’ Compensation Commission presents the novel question of whether a chiropractor has an independent right to seek compensation for a medical bill for services to a patient who has not filed a workers’ compensation claim. The Commission found no support in the act for this proposition and reversed the ALJ’s decision. We affirm.
James Yarbrough, an employee of appellee Steve Evans Datsun, was involved in an automobile accident in September, 1983, which allegedly occurred while Yarbrough was driving for appellee. A few days later Yarbrough went to appellant Sloat Chiropractic Clinic for treatment. Several x-rays were taken. Yarbrough informed appellant that he had been injured in a car accident while working for appellee and signed an agreement entitled “Assignment of Payment” which provided as follows:
My attorney and/or insurance company are hereby requested and authorized to pay direct to H.C. Sloat, D.C. any monies due him on account, the same to be deducted from any settlement made on my behalf.
Further, I agree to pay H.C. Sloat, D.C. the difference, if any, between the total amount of his charges and the amount paid him by the attorney and/or insurance company. It is further understood that I, the undersigned, agree to pay H.C. Sloat, D.C. the full amount of his charges, should my condition be such that it is not covered by my policy or if for any reason the insurance company refuses to pay my claim.
Dated 9-26-83 /s/ James Yarbrough
The record reflects that Yarbrough elected not to file a claim for benefits under the Arkansas Workers’ Compensation Act and, instead, pursued a third party action against the driver of the other automobile. That action resulted in a settlement to Yar-brough of $9,097. The settlement covered payment of Yar-brough’s attorney’s fee and all medical bills except for the $250 bill from appellant Sloat Chiropractic Clinic.
Yarbrough testified at the hearing that when he signed the Assignment of Payment he thought that his workers’ compensation would cover appellant’s charges. He stated that he found out that he was hurt more seriously than he originally thought and hired an attorney. Yarbrough testified that he continued to receive a bill from appellant but that appellant had taken no legal action against him to collect its $250. Yarbrough stated further that for some reason or other, appellant’s bill was not paid along with his other medical expenses when the lawsuit was settled.
The Commission noted in its decision that the ALJ had erroneously based his ruling on that portion of Ark. Stat. Ann. § 81-1311 (Supp. 1985), which provides:
All persons who render services or provide things mentioned herein shall submit the reasonableness of the charges to the Commission for its approval, and when so approved, shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments, but the foregoing provisions relating to charges shall not apply where a written contract exists between the employer and the person who renders such service or furnishes such things.
This provision apparently led the ALJ to conclude that appellant had an independent right to pursue a claim for its charges before the Commission independent of the decision by Yarbrough not to file a workers’ compensation claim. The ALJ also erroneously based his decision on Ark. Stat. Ann. § 81-1320(a) (Supp. 1985), which provides in part as follows:
[Waiver of compensation.] No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this Act [§§81-1301 — 81-1349], except as specifically provided elsewhere in this Act.
Waiver was not an issue in the case at bar as no claim was filed by Yarbrough and this section is therefore inapplicable. Neither § 81-1320(a) nor § 81-1311 authorize the medical provider to initiate a claim on behalf of an employee in the event a worker elects not to file a claim for benefits.
The question presented by this appeal has not been addressed in Arkansas. In A. Larson, The Law of Workmens Compensation § 61.12(k) (Vol. 2 1983), it is stated that:
The rights of a physician to recover fees in a compen-sable case are derivative; that is, there must first have been compensation claim proceedings initiated by the employee or employer. The physician has no independent standing to make claims within the compensation system, unless this right has been expressly created by statute.
In Grantham v. Coleman Co., 190 Kan. 468, 375 P.2d 629 (1962), the Kansas Supreme Court held that the compensation commissioner had no jurisdiction to entertain a doctor’s claim for services where no proceeding for compensation had been begun by the employee or employer.
The Supreme Court of Rhode Island held in Wynne v. Pawtuxet Valley Dyeing Co., 101 R.I. 455, 224 A.2d 612 (1966), that where specific language providing the right of a physician to proceed under its Workmen’s Compensation Act directly against an employer had been deleted in a later revision of the act, physicians no longer had the right to proceed under the act independently of a proceeding instituted by an employee.
In Eastern Elevator Co. v. Hedman, 290 So.2d 56 (Fla. 1974), an injured workman went to a physician for treatment. The physician treated him and submitted a bill to the state Department of Commerce. The full fee was not approved, and the physician himself sued the employer, presenting himself as a claimant under the Workmen’s Compensation Act. The Judge of Industrial Claims and the Commission found that the physician had standing to bring this independent action. The Florida Supreme Court reversed, holding that under Florida law a physician is entitled to payment for services only after it has been determined that the claim was a compensable one, and that in any event the employer has a duty to pay the injured employee, not the physician. Physicians had no standing to sue as claimants under the Florida law.
Appellant Sloat Chiropractic Clinic relies upon Willits & Son Sod Farm v. Moon, 262 Ark. 742, 561 S.W.2d 82 (1978), and Hulvey v. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977), for the proposition that the Commission has the authority to determine who is liable for the payment of medical charges. In Willits the Arkansas Supreme Court upheld the Commission’s finding that the employer was liable for medical expenditures due the Veterans Administration Hospital. There, the employee sustained a compensable injury and was admitted to the Baptist Medical Center in a comatose condition. He was later transferred to the Veterans Administration Hospital where he died without ever regaining consciousness. The Veterans Administration Hospital promptly filed its claim with the Commission for medical services rendered to the employee upon receiving notice of coverage. The employer and compensation carrier controverted the employee-decedent’s claim as well as the claim of the widow for death benefits on the basis that his injury and death were unrelated to his employment. They did not, however, challenge the validity of the Veterans Administration Hospital’s claim or the standing of the widow to press for payment of the claim. By footnote, the opinion of the court noted that the Veterans Administration Hospital was not a party litigant to the action and that its only involvement was its filing a claim for medical services rendered, but the widow was the moving party against the employer and insurance carrier for consideration of the claim. After an unpublished opinion involving a collateral matter concerning the merits of the widow’s claim for death benefits was handed down, the employer and insurance carrier challenged the Veterans Administration Hospital’s claim for the first time on the sole ground that the hospital did not comply with Rule 21 of the Commission. Sometime thereafter the employer and insurance carrier asserted in a letter that the hospital had no standing to recover on its claim for medical services rendered. In dismissing the lack of standing argument on appeal, the court noted that the widow had taken all of the affirmative steps to require the employer and insurance carrier to pay the medical expenditures incurred in connection with her husband’s injury.
Appellant Sloat Chiropractic Clinic’s reliance upon the holding in Willits for the proposition that a medical services provider has an independent right to seek compensation is misplaced. Contrary to appellant’s argument, there is no language in the Willits opinion which provides authority for appellant to initiate a claim on behalf of an employee in the event a worker elects not to file a claim for benefits.
Appellant also relies upon Hulvey v. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977). The question on appeal there was whether there was substantial evidence to support the Commission’s reduction of a chiropractor’s charges as being unreasonable. The Commission also refused to award the chiropractor an attorney’s fee because the matter had been pursued by the doctor and his attorney rather than by the claimant and her attorney. On appeal the circuit court affirmed the reduction in the chiropractor’s fees but found that an attorney’s fee was recoverable and remanded the cause to the Commission. The Arkansas Supreme Court stated that the circuit court was correct in finding that an attorney’s fee should be allowed, relying upon that portion of § 81-1311 which provided that reasonable charges for medical services, when approved by the Commission, “shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments.” Id. at 566, 567, 559 S.W.2d at 155.
Appellant Sloat Chiropractic Clinic submits in its brief that since a medical provider has an independent right to obtain legal counsel in regard to the providing of treatment to an injured worker as per the holding in Hulvey, there is no difference in principle in regard to a chiropractor having an independent right to file a claim for treatment that has been rendered in good faith to an injured worker. In Hulvey the injured worker had filed a workmen’s compensation claim for an admittedly compensable injury. This fact clearly distinguishes Hulvey from the facts in the case at bar. We do not construe the holding in Hulvey as authority for a medical provider to independently initiate a claim.
Appellant further asserts that it has standing to initiate a claim on the basis of Yarbrough’s execution of the Assignment of Payment. We do not find this argument persuasive inasmuch as the law provides that the right to compensation is not assignable. Ark. Stat. Ann. § 81-1321 (Repl. 1976). The language of the Assignment of Payment clearly indicates that Yarbrough assigned to appellant only his rights to payment.
Ark. Stat. Ann. § 81-1305 (Repl. 1976), provides that “Every employer should secure compensation to his employees . . . .” Liability by its own language thus runs in favor of the employee under the act. Any right appellant might have to pursue its claim must be found within the terms of the Arkansas Workers’ Compensation Act. We have examined the act and can find no provision which confers upon the Commission the power to hear such claims. Since the legislature has been silent in this area, we cannot fill the void by judicial interpretation.
In conclusion, we hold that the decision of the Commission was correct in determining that appellant Sloat Chiropractic Clinic could not maintain the proceeding to recover its claim for services in the absence of a workers’ compensation proceeding initiated by the employee, employer or other direct representatives.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Donald L. Corbin, Judge.
This case involves a question of first impression concerning the interpretation of Ark. Stat. Ann. § 814314(a)(3) (Repl. 1976), as it relates to the apportionment rule applicable to occupational diseases.
The Commission upheld the finding by the ALJ that Ark. Stat. Ann. § 81-1314(a)(3) required apportionment of appellant Willie Jenkins’ claim for total disability upon a finding that the appellant’s disability was attributable 92% to cigarette smoking and 8% to the occupation. We affirm.
The appellant is a 53-year old male who began his employment with appellee Halstead Industries on January 22, 1968. Appellant had smoked cigarettes since he was 25 or 30 years of age. Appellant testified that he had been advised by Dr. Hosea Young in 1970 to change jobs and stop smoking. Appellant began having breathing difficulties after he became a quality control station inspector on March 3, 1970, when he was exposed to fumes coming from a casting furnace on a daily basis. He continued in that position until April 20, 1975, when he was placed in a packer position for two months after being treated by Dr. Hosea Young for lung problems. He then worked as a bench helper or packer until March 8,1976. Thereafter, he worked as a rubber extruder operator, which he continued until he terminated his employment with appellee due to his physical condition. While employed as an extruder operator, appellant was exposed to a dry powdered chemical known as talc which he contends caused his pulmonary problems.
Dr. Howard Armstrong, an occupational medicine practitioner, stated that appellant’s exposure in the rubber curing process resulted in a chronic obstructive pulmonary disease, commonly referred to as emphysema. Dr. Armstrong’s opinion was supported by Fine and Peters, Respiratory Morbidity in Rubber Workers, Occupational Health Program, Jan.-Feb. 1976, at 5.
Appellee produced testimony of Dr. William L. Mason, a physician specializing in internal medicine with a sub-specialty in lung disease. He examined appellant and inspected appellant’s place of employment. He diagnosed appellant as suffering from significant chronic obstructive pulmonary disease and opined that he was totally disabled as a result of his pulmonary impairment. Dr. Mason stated that the rubber curing process could have aggravated appellant’s disease but that it most likely would only have been on a temporary or intercurrent basis and would account for episodes of acute bronchitis while he was at work. He assessed appellant’s impairment attributable to the work place at eight percent and concluded that that impairment developed concurrently with the other nonemployment disabling processes already well in motion. It was Dr. Mason’s opinion that appellant would be permanently and totally disabled even if he had never been exposed to the conditions at appellee Halstead Industries. Appellant’s impairment would continue to progress, not because of his exposure to talc or fumes at his work place, but because of the nature of his underlying severe pulmonary emphysema which was unequivocally caused by lifelong cigarette inhalation. Dr. Mason attributed ninety-two percent of his disability to cigarette inhalation.
Dr. Hosea Young began treating appellant in 1970 for emphysema and bronchitis. He stated in a report that appellant was permanently and totally disabled and that he believed “there is definitely a causal relationship between Mr. Jenkins’ severe pulmonary problems and the dust and fumes he inhales at work.”
Appellant contends that the full Commission erred as a matter of law when it apportioned the compensation based upon “percentages of impairment” and not upon “disability”. Appellant contends that the Commission should have made a finding of “disability” which was attributable to a non-compensable infirmity and then applied the apportionment rules. He argues that even though he may have had a ninety-two percent impairment, there was no proof that there had been a ninety-two percent loss in appellant’s earning capacity. Appellant further argues that the fact that he has worked with this condition for numerous years establishes that his “disability” was actually less than his anatomical impairment. Appellant asserts that the impairment was only producing a twenty-five percent disability and that his exposure to talc was “the straw that broke the camel’s back.”
We do not believe the Commission erred in finding that 92% of appellant’s disability was attributable to smoking and 8% of his disability was attributable to his occupation. Ark. Stat. Ann. § 81-1314(a)(3) contemplates two situations wherein apportionment is appropriate. The first situation arises when an occupational disease is aggravated by any other noncompensable disease or infirmity, whereas the second situation arises when a noncompensable disability or death is aggravated, prolonged, accelerated or in any way contributed to by an occupational disease. There is substantial evidence in the record to support the Commission’s finding that this is a case wherein an occupational disease was aggravated by another disease or infirmity, not itself compensable, and that apportionment was proper. Ark. Stat. Ann. § 81-1314(a)(3) provides:
Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compen-sable, is aggravated, prolonged, accelerated or in any wise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.
We agree with the Commission’s conclusion that the legislature did not intend for our occupational disease apportionment statute to be interpreted and applied in the same manner as our accidental injury apportionment statute, Ark. Stat. Ann. § 81-1313(f)(2)(ii) (Repl. 1976). Under § 81-1313(f)(2)(ii), apportionment does not apply unless the prior impairment was independently causing disability prior to the second injury and continued to do so after that injury. Craighead Memorial Hospital v. Honeycutt, 5 Ark. App. 90, 633 S.W.2d 53 (1982). We also agree with the Commission’s conclusion in the case at bar that there is no requirement in § 81-1314(a)(3) for the non- compensable disease or infirmity to be independently producing disability before and after the development of the occupational disease in order for it to be apportionable.
Ark. Stat. Ann. § 81-1314(a)(3) mandates that, when the requirements are met, the compensation shall be reduced to the proportion that the occupational disease, as a causative factor, bears to all the causes of the disability. Here, the only testimony stating the proportion, as a causative factor, that the occupational disease bore to the total disability was the testimony of Dr. Mason. He testified that the occupational disease, as a causative factor, was 8% of the cause of appellant’s disability. The Administrative Law Judge determined, in accordance with Dr. Mason’s testimony, that appellant had a permanent partial disability of 8%. The Commission adopted and approved that finding. That finding is amply supported by substantial evidence and the decision of the Commission is affirmed.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Per Curiam.
On March 6, 1986, this court denied appellants’ petition for immediate consideration of an appeal from orders of the Arkansas Public Service Commission, which denied appellants’ request to intervene in Commission Docket No. 85- 299-U. This court left pending appellee’s Motion to Dismiss the appeal in order to allow all parties the opportunity to respond thereto.
The notice of appeal of Commission Orders No. 3 and No. 4 was filed even though appellants had not sought a rehearing of Order No. 3 pursuant to Ark. Stat. Ann. Section 73-229.1(a) (Supp. 1985). Further, appellants’ notice of appeal was filed prior to a decision by the Commission on appellants’ petition for rehearing of Order No. 4.
Ark. Stat. Ann. Section 73-229.1 (Supp. 1985) is mandatory, and strict compliance with its provisions is necessary before any order of the Public Service Commission may be reviewed by this court. Accordingly, the appellee’s motion to dismiss is granted.
Appeal dismissed. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Desha County Circuit Court. Appellant, Charles Everett, appeals from the judgment and commitment order dated Febru ary 24, 1988, finding him guilty of two counts of delivery of cocaine, a violation of Arkansas Code Annotated Section 5-64-401 (1987). We affirm.
A felony information was filed November 13,1986, charging appellant with three counts of delivery of cocaine. The case proceeded to trial and appellant was found guilty by a jury on two of the counts. Appellant was sentenced to a term of twenty years in the Arkansas Department of Correction on one count, a term of ten years imprisonment on the other, and a $25,000.00 fine. The terms of imprisonment were ordered to run concurrently. From the judgment comes this appeal.
In his only point for reversal, appellant argues that the state’s use of four of its six peremptory challenges to exclude blacks from the jury violated the Equal Protection Clause of the United States Constitution and denied appellant a fair trial. We find no merit in the argument and affirm the judgment of conviction.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court of the United States held that a criminal defendant has the right to be tried by a jury whose members are selected pursuant to criteria that are nondiscriminatory. The Equal Protection Clause guarantees the accused that the state will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors. The appellate courts of this state followed the Batson rationale in Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987) and Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988).
Under Batson, a defendant who alleges improper use of peremptory challenges must establish a prima facie case of purposeful discrimination. If the defendant makes this showing, then the burden shifts to the state to give a neutral explanation for the questioned challenges. In the case at bar, we acknowledge that the trial court adhered to the better practice of requiring the state to give racially neutral explanations for the questioned challenges. However, because we find that the appellant failed to establish a prima facie case of purposeful discrimination, we find it unnecessary to determine the sufficiency of the state’s explanations.
In Batson, the Supreme Court noted:
[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Id. at 96 (citations omitted). Because the appellant and the four veniremen which were struck are black, the issue for resolution becomes whether the facts and relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.
The United States Supreme Court stated:
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in a particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. The examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Batson, 476 U.S. at 96-97.
The record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). The record in the case at bar does not reveal any questions or statements made during voir dire supporting an inference of discriminatory purpose. Also, the record reveals that the state exercised four peremptory challenges to strike black veniremen and two to strike white veniremen. Additionally, two black veniremen were seated on the jury. As stated in Ward v. State, 293 Ark. 88, 94, 733 S.W.2d 728, 731 (1987), “The best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members.”
Since there were several black persons seated on the jury, and the state did not use all of it peremptory challenges to exclude only black veniremen, and the record of voir dire does not imply any racial discrimination, we affirm the trial court. The appellant did not make a prima facie case of discrimination as required in Batson by showing such facts and circumstances to raise the inference that the prosecutor used strikes to exclude the veniremen from the petit jury solely because of their race.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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George K. Cracraft, Judge.
By an information filed in Randolph County, Arkansas, appellants Gerald and Lora Lee were charged with the crimes of delivery of a controlled substance and conspiring with one William Smith to engage in a continuing series of offenses of delivery of controlled substances. The jury returned a verdict finding Gerald Lee guilty of both charges. It found Lora Lee guilty of conspiracy but not guilty of delivery. On appeal, the parties advance several points for reversal, which we will discuss separately. We find sufficient merit to warrant reversal in appellant Gerald Lee’s contention that the evidence is insufficient to sustain his conviction of delivery of a controlled substance, but in all other respects we affirm the jury’s verdict.
It was the State’s theory of the case that Gerald Lee and William Smith entered into a conspiracy under which it was agreed that Lee would furnish controlled substances to Smith who would in turn sell the contraband and divide the proceeds with Lee. The State further contended that Lora Lee was either an original conspirator or later joined and participated in that conspiracy. The case was submitted to the jury on the theory that the conspiracy contemplated that the parties would commit a continuing series of offenses, and that on at least one occasion appellants delivered a controlled substance to Smith in Randolph County.
William Smith testified that in March of 1987 he was contacted for the purpose of selling controlled substances for Gerald Lee, and that he thereafter agreed with Lee that Lee would furnish the contraband, Smith would sell it, and the proceeds would be divided. In furtherance of the conspiracy, he had sold over $30,000.00 worth of contraband delivered to him by Lee, and had divided the proceeds with the Lees. Smith stated that each time he delivered proceeds he was furnished with more contraband for sale on the same basis. According to Smith, the contraband was delivered to him by both Gerald and Lora Lee at different times and places. He had delivered the money to Gerald and Lora on some occasions, to Gerald alone on some, and to Lora alone on others. Both Lora and Gerald Lee had brought contraband to his home in Jackson County and, on at least two occasions, deliveries to Smith took place in appellants’ home in Randolph County, where appellants kept a supply of contraband in a freezer.
Smith also testified to various specific incidents demonstrating the conspiracy and Gerald Lee’s participation therein. Most material aspects of that testimony were corroborated by a number of witnesses.
Vivian Smith testified that her husband had sold “dope” for Lee on a large scale and obtained deliveries of it from both of the Lees in various places. She stated that the deliveries were made in Randolph County on at least two occasions in exchange for the proceeds of previous sales. She also testified that the supply of contraband was kept in a freezer in the Lees’ home in Randolph County. Although she admitted going along with her husband on several trips, she denied any participation in the conspiracy.
I. DELIVERY
Appellant Gerald Lee first contends that his conviction for delivery of a controlled substance cannot be sustained because the evidence against him consisted solely of uncorroborated accomplice testimony. We agree.
Arkansas Code Annotated § 16-89-111 (e)(1) (1987) (formerly Ark. Stat. Ann. § 43-2116 (Repl. 1977)) provides that a conviction cannot be had in the case of a felony on the testimony of accomplices unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. It requires more than testimony sufficient to show that the offense was committed. Evidence corroborating the testimony of an accomplice must tend to connect the accused with the crime and must be independent of the evidence given by the accomplice. Such corroborating evidence may be circumstantial so long as it is substantial, but need not be of such a substantial character as to support a conviction without the testimony of the accomplice. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).
Although the trial court denied appellant’s motion for a directed verdict on this ground, it instructed the jury that William and Vivian Smith were accomplices to the crime of delivery as a matter of law, and that appellant could not be convicted of delivery unless their testimony relating to the delivery in Randolph County was corroborated. However, there was no evidence to corroborate the testimony of William and Vivian Smith that the alleged delivery in Randolph County ever took place, much less any tending to connect Gerald Lee to it. Other than that of the Smiths, the only evidence of any delivery came from persons who testified that they saw a delivery by Lee in the Smith home, which was affirmatively shown to be in Jackson County, and a delivery to Smith in Craighead County. Neither of these deliveries, however, was the one for which appellant was tried and convicted. Accordingly, appellant Gerald Lee’s conviction for delivery of a controlled substance must be reversed and dismissed.
While we are not in agreement with the trial court’s statement that one who buys a controlled substance is an accomplice of a person who sells or delivers it as a matter of law, no objection was made to the instruction when given and the State does not argue on appeal that it was incorrect.
II. CONSPIRACY
Arkansas Code Annotated § 5-3-401 (1987) (formerly Ark. Stat.' Ann. § 41-707 (Repl. 1976)) provides:
A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:
(1) He agrees with another person or other persons:
(A) That one (1) or more of them will engage in conduct that constitutes that offense; or
(B) That he will aid in the planning or commission of that criminal offense; and
(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.
Under this section, the State is required to prove both that there has been an agreement of the parties to commit the crimes and that one of the conspirators did at least a minimal act in furtherance of that agreement. See Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987). Due to the very nature of a criminal conspiracy, the prosecution is seldom able to present direct evidence of the criminal agreement. It is, therefore, not necessary that a conspiracy to commit an unlawful act be shown by direct evidence. It may be proved by circumstances and the inferences drawn from the course of conduct of the alleged conspirators. Griffin v. State, 248 Ark. 1223, 455 S.W.2d 882 (1970); Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988).
The conspiracy may be inferred, even though no actual meeting among the parties is proved, if it be shown that two or more persons pursued by their acts the same unlawful object, each doing a part so that their acts that were apparently independent were in fact connected. Griffin v. State, supra. Where the combination of persons to do an unlawful act is shown, each of them is liable for the acts of the others acting in furtherance of the plan where it terminates in a criminal result. Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972).
A.
Both appellants contend that their convictions for conspiracy cannot be sustained because the evidence of William and Vivian Smith was not sufficiently corroborated. However, appellants do not argue at this juncture (and appellant Gerald Lee never does) that the corroborating testimony was not sufficient to establish the crime and their connection to it. They argue only that there was no corroboration that any overt act in furtherance of the conspiracy was committed in Randolph County. This argument must fail.
Accomplice evidence of overt acts occurring within the county is not required to be corroborated. The corroboration required by § 16-89-111 (e) (1) relates to the material facts that go to “the identity of the defendant in connection with the crime.” Gardner v. State, 263 Ark. 739, 749, 569 S.W.2d 74, 79 (1978). The statute is directed toward proof of the criminal offense and not to venue or jurisdictional facts, for which corroboration is not required. Id.
Moreover, although a person accused of criminal conduct is entitled to a jury trial in the county where the oifense was committed, the State is not required to offer any proof that the offense was committed in the county of prosecution unless the evidence affirmatively shows that it was not. Ark. Code. Ann. § 5-1-111(b) (1987) (formerly Ark. Stat. Ann. § 41-110(2) (Repl. 1977)). Lack of proof that proper venue is in the county of prosecution is not the equivalent of an “affirmative showing.” Gardner v. State, supra; Johnson v. State, 254 Ark. 703, 495 S.W.2d 845 (1973); Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985). Under Ark. Code Ann. § 5-3-407 (1987) (formerly Ark. Stat. Ann. § 41-712 (Repl. 1977)), proper venue for a conspiracy prosecution is any county where an overt act in furtherance of the conspiracy is alleged to have occurred. Here, not only was there no affirmative showing that no overt act was committed in Randolph County, but the Smiths testified that appellants did commit overt acts there.
B.
Appellant Gerald Lee further contends that his conviction for conspiracy was contrary to the provisions of Ark. Code. Ann. § 5-1-110(a)(2) (1987) (formerly Ark. Stat. Ann. § 41-105(l)(b) (Repl. 1977)), because he could not be convicted of both conspiracy and the underlying substantive offense of delivery of a controlled substance. On the facts of this case, this argument must fail for at least two reasons.
In the first place, we conclude that the issue is moot. Appellant Gerald Lee no longer stands convicted for delivery of a controlled substance, as we have in this opinion reversed and dismissed that conviction on other grounds.
However, in any event, § 5-1-110 does not prohibit convictions for both offenses in this case. That section provides that, when the same conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for all of the offenses but convicted of only one if one offense consists only of a conspiracy, solicitation, or an attempt to commit the other. The commentary to that section (found after Ark. Stat. Ann. § 41-105 (Repl. 1977)), which we find persuasive, states that the word “only” used in § 5-1-110(a)(2) refers to those conspiracies in which the consummated offense was the sole object of the conspiracy. It has no application to a conspiracy to commit a continuing series of offenses. The commentary states as an example: “[T]he person who agrees with others to engage in the continuing sale and distribution of drugs may be convicted of both conspiracy and a completed drug sale.” Here, the evidence showed that the conspiracy contemplated the commission of a series of criminal acts, not merely the single transaction. There was testimony that, pursuant to the conspiracy, offenses involving at least $30,000.00 were committed in three or four counties over a period of time.
C.
Appellant Lora Lee contends that she could not be convicted of the crime of conspiracy because the only testimony connecting her with the conspiracy is that of William Smith and his wife, Vivian Smith, who she contends were “accomplices to the alleged conspiracy as a matter of law.” We disagree.
Ordinarily, the question of whether a witness is an accomplice is a mixed question of fact and law and must be submitted to the jury where the evidence is in dispute. Woodward v. State, 16 Ark. App. 18, 696 S.W.2d 759 (1985); Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 111 (1984). Here, the jury was properly instructed on and had submitted to it the factual issue of whether or not various other witnesses were accomplices to the conspiracy. However, Vivian Smith’s name was not included, nor requested to be included, in that instruction, and appellant requested neither a directed verdict on that issue nor an instruction naming Vivian Smith as an accomplice as a matter of law. Appellant contented herself by requesting a directed verdict on the “whole evidence.” If she had desired an instruction or directed verdict on that issue, it was her duty to request it, and, failing to do so, she waived the issue of Vivian Smith’s accomplice status and is in no position now to complain on this basis. Trotter v. State, 215 Ark. 121, 219 S.W.2d 636 (1949); Morris v. State, 197 Ark. 778, 126 S.W.2d 93 (1939).
In any event, although the evidence of William Smith establishes that he was a co-conspirator and accomplice to the alleged conspiracy as a matter of law, that of Vivian Smith stands in an entirely different posture. In view of her assertion that she did not participate in the selling of the drugs or the conspiracy, but merely accompanied her husband, the issue of whether she was an accomplice constituted at most a question of fact. On the evidence presented, the jury could have found that Vivian Smith was not an accomplice and that her testimony need not be corroborated. She testified to facts from which the jury could infer that appellant Lora Lee had been a participant in the conspiracy. Therefore, the testimony of Vivian Smith, standing alone, was sufficient to support the verdict as to appellant Lora Lee. It also served to fully corroborate William Smith’s testimony.
III. ALLEGED TRIAL ERRORS
A.
Appellants called four character witnesses who gave both reputation and personal opinion evidence that appellants had good reputations, in their community. The testimony was not restricted to appellants’ reputations for truth and veracity but was directed at their reputations generally. On cross-examination, the State was permitted to ask these witnesses if they had heard that Gerald Lee had been convicted of burglary and theft and had on other occasions threatened people’s lives, once while holding a pistol to the person’s head. The State also asked each of them if he had heard that Lora Lee had shot her husband five times. All but one of the witnesses testified that they were aware of all of those facts. The one remaining witness stated that he was aware of all but one of the facts. Appellants contend that this questioning was improper, irrelevant, and offered only for the purpose of inflaming the jury. We do not agree.
Rules 404(a)(1) and 405(a) of the Arkansas Rules of Evidence permit an accused to initiate evidence of his character or a pertinent character trait by reputation or opinion evidence. However, when he puts his character in evidence, inquiry into relevant, specific instances of conduct is allowable on cross-examination. Ark. R. Evid. 405(a). The purpose of cross-examination of a character witness is not to attack the character or credibility of the accused, but to ascertain the witness’s awareness of things having a bearing on the reputation for which the witness has vouched. The only limitation this rule places on cross-examination is that the facts inquired into be relevant to the issue of character. If the witness has never heard that the accused has previously been convicted of a crime or engaged in violent misconduct, then the witness’s credibility suffers. If he has heard or knows of such facts but disregards them in forming his opinion or testifying to one’s reputation, that may legitimately go to the weight to be given the opinion or reputation evidence. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). See also E. Cleary, McCormick on Evidence § 191, at 569 (3d ed. 1984).
The witnesses testified that the appellants’ reputations in the community were good, and, in their opinions, those reputations were earned. The fact that appellant Gerald Lee had been convicted of burglary and theft would certainly be relevant to those witnesses’ opinions and bases for knowledge of his reputation for truth and veracity. The fact that both appellants had been engaged in acts or threats of violence would be relevant to the witnesses’ opinions and knowledge of appellants’ reputations for being law-abiding citizens. We find no error.
Appellant Gerald Lee also contends, however, that the court should not have allowed the witnesses to be questioned about his conviction for burglary and theft because it was forty years old and therefore irrelevant. We initially note that, when the questions concerning the conviction were asked and answered, appellant objected only on the grounds that the conviction was “more than ten years old.” It was not until the close of the case that counsel for appellant asserted that the conviction was forty years old. While cross-examination of a witness about his own convictions that are more than ten years old is not allowed under Ark. R. Evid. 609, that rule has no application to the facts of this case. See Reel v. State, supra. This case is governed by Rule 405, which contains no such limitation but merely requires that the evidence be relevant. We cannot conclude that the character witnesses’ knowledge of a conviction “more than ten years old” was irrelevant or that its probative value was substantially outweighed by the danger of unfair prejudice.
Furthermore, documentary evidence of that conviction was not introduced. The witnesses were simply asked if they knew that appellant had been previously convicted. Appellant has not pointed out to us what in the record reflects when the conviction was obtained, or any other basis for his assertion that it occurred more than forty years ago. The burden is on the appellant to bring up a record and abstract thereof sufficient to demonstrate that the trial court was in error. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We conclude that he has failed in that burden.
Nor do we find merit in appellants’ contention that the questions were not asked in good faith. As stated in McCormick, supra, this provision for cross-examination “is replete with possibilities for prejudice” and might result in the asking of questions which have no foundation in fact but which implant in the minds of the jury that insinuation or innuendo is true. It further recites the practice in many courts to have an in-chambers determination that the questions have some basis in fact before they are asked. While that was not done here, appellants’ argument is hardly applicable to this case, because all but one witness admitted that he was aware of all of those matters about which the inquiries were made, and this negated any basis for an argument that the inquiries were merely suggestive or based on insinuation or innuendo. While one witness testified that he was not aware of one act, it was stated by appellants’ own counsel that the information about which the prosecutor inquired was con tained in the file. It therefore was not a product of the prosecutor’s imagination.
B.
While testifying about the mechanics of the conspiracy, William Smith testified that Gerald Lee had delivered Dilaudid as well as methamphetamine to him. Appellants objected on the grounds that they were not charged with delivery of Dilaudid but only with delivery of methamphetamine. The trial court found the evidence irrelevant to the charges of delivery but relevant to the charges of conspiracy. At the request of counsel for appellants, the trial court instructed the jury that it could not consider the testimony as evidence of the delivery with which appellants were charged but only as evidence as to the conspiracy.' Appellants now contend that the evidence of a delivery of Dilaudid constituted evidence of “other bad acts” in violation of Ark. R. Evid. 404(b) because they were charged with conspiracy to deliver methamphetamine. The view we take of the case makes it unnecessary for us to address this argument on its merits)
This argument is based on the assumption that appellants were charged with conspiracy to deliver methamphetamine, not Dilaudid. However, a reading of the amended information shows this basic premise to be unfounded. Count One of the amended information charged appellants with conspiracy to deliver a “Schedule II controlled substance.” Methamphetamine was never mentioned until the State, as required by Ark. Code Ann. § 16-89-112(b) (1987) (formerly Ark. Stat. Ann. § 43-2013 (Repl. 1977)), alleged overt acts done in furtherance of the conspiracy. Although that statute requires that a specific overt act be alleged in the information, see Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987), it also clearly states that “overt acts other than those alleged in the indictment may be given in evidence on the part of the prosecution.” Here, both methamphetamine and Dilaudid (hydromorphone) are Schedule II controlled substances, and, therefore, proof that appellant Gerald Lee delivered Dilaudid to Smith pursuant to the conspiracy was properly admitted as direct evidence of the conspiracy with which appellants were charged. The delivery of Dilaudid was not “other crimes evidence” but evidence of an overt act, other than that alleged in the information, done in furtherance of the conspiracy.
C.
During the trial, appellants objected to leading questions propounded by the State on nine occasions. Each objection was sustained, and, on the sole occasion that counsel requested that an answer be stricken, that request was granted. At no other time was there a request that an answer be stricken, that counsel be admonished with regard to leading questions, or that any other action be taken by the court. For the first time on appeal, appellants urge that the trial court’s failure to impose sanctions sua sponte, by striking questions, refusing to allow counsel to reask, holding counsel in contempt, or declaring a mistrial, warrants reversal of the case. We disagree.
The trial court is vested with a wide latitude of discretion with regard to admission of leading questions, and its rulings will not be disturbed on appeal unless there has been an abuse of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). We cannot agree with appellants’ contention that the facts of this case are analogous to those presented in Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). There, a retrial was ordered because counsel repeatedly ignored the court’s admonishments with regard to leading questions and the court refused to take any action on appellant’s request that these prejudicial trial tactics be controlled. There were at least twenty-eight objections to questions which were framed in the form of statements of counsel and which in effect submitted his evidence to the jury rather than that of the witnesses. According to quotations from evidence contained in that opinion, there were many more leading questions asked by counsel to which no formal objection was interposed. The court constantly admonished counsel to cease the practice but to no avail. The appellant’s motion that the court impose sanctions or strike the witnesses’ testimony was refused, but the violations continued. The trial court conceded that it could not or would not take any action beyond the admonishment. The supreme court stated that it was presented with a unique situation in which the trial court was wholly unwilling or unable to control the improper conduct by counsel. The. trial court was reversed for failing to take such action to correct this and other improper tactics of counsel, and the matter was remanded for retrial.
Here, the leading questions did not rise to the prejudicial level of those in Alexander, and in most instances were not a substitution of counsel’s statements for witnesses’ evidence. At most, several were repetition of the witnesses’ testimony or correction of it in minor details. Appellants’ counsel was content with the rulings he asked for and obtained on those objections, and no requests for admonishment of counsel or any other sanctions were made. While we agree that a trial court has an obligation to control trial tactics that tend to substitute counsel’s evidence for that of his witness and leave the jury with prejudicial impressions, we cannot conclude that the conduct of trial counsel or the questions asked here reached the prejudicial level found in Alexander, or that the trial court otherwise committed prejudicial error by not acting sua sponte under the circumstances of this case. See also Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).
Appellant Gerald Lee’s conviction for delivery of a controlled substance is reversed and dismissed. Appellants’ convictions for conspiracy are affirmed.
Mayfield and Rogers, JJ., agree.
See Sweatt v. State, 251 Ark. 650, 473 S. W.2d 913 (1971); Barnes v. State, 15 Ark. App. 153, 691 S.W.2d 178 (1985); and Brizendine v. State, 4 Ark. App. 19, 627 S.W.2d 26 (1982), which hold that one who accepts delivery of a controlled substance is not an accomplice of the deliverer. | [
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John E. Jennings, Judge.
On April 14, 1987, Andy Venable entered a guilty plea to five counts of burglary and two counts of theft of property. On April 23,1987, the Benton County Circuit Court sentenced Venable to fifteen years in the Department of Correction, but suspended five years, conditioned, among other things, upon Venable’s not committing an offense punishable by imprisonment. The court remanded the defendant to the custody of the sheriff for transportation to the department.
By mid-May, Venable still had not been transported to the Department of Correction, and was being held in the Washington County Jail on other burglary charges. On May 17, 1987, the Washington County Circuit Court released Venable for five days to take care of personal business. On September 30, 1987, the State filed a petition to revoke, alleging that Venable had burglarized Hobo Joe’s Restaurant in Springdale on the 17th of May.
On April 25,1988, the Benton County Circuit Court held a hearing on the petition and revoked the defendant’s five-year suspended sentence. On appeal, Venable contends that the evidence was insufficient to support the revocation and that the court lacked jurisdiction to revoke his suspended sentence. We find no error and affirm.
We first consider defendant’s second argument which is based on Ark. Code Ann. § 5-4-307(c) (1987):
If the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of suspension commences to run from the day the defendant is lawfully set at liberty from the imprisonment.
Venable’s argument is that because the period of suspension had not yet “commenced” the trial court was without jurisdiction to revoke it. The New Mexico Court of Appeals recently dealt with this issue in State v. Padilla, 106 N.M. 420, 744 P.2d 548 (Ct. App. 1987). Padilla was convicted of forgery and burglary and sentenced to three years with two years suspended. After his incarceration, Padilla escaped from a work-release center. The trial court then revoked his suspended sentence. The New Mexico court said that the overwhelming weight of authority supports the trial court’s authority to revoke probation and suspended sentences for violations occurring prior to the commencement of the probationary period. The court held:
[T]hat a defendant who commits a probation violation while still serving the custodial portion of his sentence should be treated no differently than a defendant who has served his custodial sentence but commits a violation while on probation. The suspension or deferment of a sentence is not a matter of right, but a decision reserved to the sound discretion of the sentencing court.
744 P.2d at 550.
The facts in United States v. Ross, 503 F.2d 940 (5th Cir. 1974), were virtually identical to those of the case at bar. Ross was convicted of a drug offense and was sentenced to three years in prison with all but four months suspended. It was also ordered that Ross be placed on five years probation following his release from prison. The trial court stayed execution of the sentence for one week to permit Ross to put his business in order. Almost immediately Ross was arrested for another drug offense, and the court revoked his suspended sentence.
On appeal, Ross argued that the district court could not revoke his probation for an offense committed after sentencing but before service of the sentence of probation had begun. 18 United States Code Section 3653 (1948) authorized termination of probation for a violation occurring “at any time within the probation period.”
Judge Wisdom, speaking for the court, said:
Aside from the fact that Section 3653 is not by its terms exclusive, case law and sound policy reject Ross’s contentions ....
Sound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date.
503 F.2d at 943.
Most other jurisdictions agree. Tiitsman v. Black, 536 F.2d 678 (6th Cir. 1976); People v. Shults, 254 Cal. App. 2d 876, 63 Cal. Rptr. 667 (1967); Wright v. United States, 315 A.2d 839 (D.C. 1974); State v. Stafford, 437 So.2d 232 (Fla. Dist. Ct. App. 1983); State v. Morris, 98 Idaho 328, 563 P.2d 52 (1977); Brown v. Commonwealth, 564 S.W.2d 21 (Ky. Ct. App. 1978); Commonwealth v. Wendowski, 278 Pa. 453, 420 A.2d 628 (1980); see also Annotation, Power of Court to Revoke Probation for Acts Committed After Imposition of Sentence but Prior to Commencement of Probation Term 22 A.L.R. 4th 755 (1983).
Like the New Mexico Court of Appeals in Padilla, supra, we can find only two cases that arguably support the defendant’s position here, and we agree that both are distinguishable. In State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906 (1971), the contention was that the sentencing order was ambiguous and the South Carolina Supreme Court held that any ambiguity must be resolved in the defendant’s favor. In Bell v. State, 656 S.W.2d 502 (Tex. Crim. App. 1982), the trial court revoked the defendant’s probation for an offense that occurred before the judgment, placing the defendant on probation, had been entered.
Our conclusion is that the trial court had jurisdiction to revoke Venable’s suspended sentence.
We also think the evidence was sufficient to support the revocation. At about 2:00 a.m. on May 18,1988, Brian Freeman, a patrolman with the Springdale Police Department passed Hobo Joe’s Restaurant on Highway 71. He noticed a beige-colored car parked by the business. Shortly thereafter, Freeman received a dispatch that the burglar alarm had gone off at Hobo Joe’s. When he arrived he saw Venable getting into the car. Freeman tried to stop the car, but Venable fled and turned off his headlights during the ensuing chase. Freeman finally stopped and arrested him. At the hearing, Venable testified that he was intoxicated and had just stopped to use the bathroom.
There was evidence that a window was found open in the storage room of the restaurant and that the window screen had been pried out. The burglar alarm had been activated by the opening of an inside door from the storage room to the kitchen. The cash register was found open. No stolen property was found on Venable.
On these facts, the State concedes that the evidence was insufficient to establish the offense of burglary, but contends that it was sufficient to establish the offense of criminal trespass and that therefore the revocation was appropriate. We agree.
Criminal trespass is a lesser included offense of burglary. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982). The facts of Self v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), relied on by the State, are similar to those in the case at bar. In Self a petition for revocation of the defendant’s suspended sentence was based on an allegation that he had committed burglary. The supreme court held that although the evidence was insufficient to show the offense of burglary it was sufficient to show the lesser included offense of breaking or entering, which itself constituted a violation of the terms of Selfs suspended sentence, and that therefore the trial court did not err in revoking the suspension.
In the case at bar, the trial court expressly found that the defendant broke into the restaurant and that finding is not clearly against a preponderance of the evidence. The fact that evidence is circumstantial does not render it insufficient as a matter of law. See Needham v. State, 270 Ark. 131, 640 S. W.2d 118 (Ark. App. 1980).The trial court was justified in revoking the defendant’s suspended sentence.
Affirmed.
Corbin, C.J., Cooper and Mayfield, JJ., dissent.
Cracraft, J., concurs. | [
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John E. Jennings, Judge.
George Marshall was convicted by a jury in Pulaski County Circuit Court of conspiracy to commit aggravated robbery and was sentenced to thirty years imprisonment. The conviction was supported by the testimony of Larry Mickel and Terry Wilkins, both of whom were officers with the North Little Rock Police Department. Both were working undercover when they first met Mr. Marshall at the Bel-Air Motel. Not long afterwards, the appellant asked Mickel and Wilkins to help him commit a burglary at the Otter Creek Pharmacy in Little Rock. Mickel and Wilkins pretended to agree and drove with the appellant to the pharmacy at night. Because there was a security guard on duty, the appellant decided against burglarizing the pharmacy. Instead, he invited the officers to join him in an armed robbery of a convenience store, and asked them to steal a getaway car. The officers had a vehicle used in undercover work brought to a North Little Rock parking lot and, with Marshall present, they pretended to steal it. After the appellant was unsuccessful in obtaining a .44 magnum pistol he suggested that the three of them buy a toy pistol, which they did. The three then drove around in the Southwest Little Rock area looking for a store to rob. Mr. Marshall picked out an Exxon station as the target and told Mickel to stay in the car. Appellant left with the toy pistol, but was arrested before any robbery was committed.
On appeal the sole argument is that the trial court erred in refusing to submit to the jury the status of Officers Mickel and Wilkins as accomplices. We find no error and affirm.
Where a law enforcement officer feigns friendship or complicity in the commission of a crime in order to obtain incriminating evidence, he is not an accomplice. 3 C. Torcía, Wharton’s Criminal Evidence § 611, at 750 (14th ed. 1985). The absence of mens rea precludes it. Id. at 750. “The case of a pretended confederate, who as detective, spy, or decoy, associates with the wrongdoers in order to obtain evidence is distinct from that of an accomplice, although the distinction may sometimes be difficult of application.” J. Wigmore, Wigmore on Evidence § 2060, at 447 (Chadbourn rev. 1978).
One’s status as an accomplice is a mixed question of law and fact and the issue must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). But where there is no conflict in the evidence as to a witness’s participation in a crime, or where his participation therein is conceded, the question whether the witness is an accomplice is one of law for the trial judge to determine. Wharton’s Criminal Evidence, supra, at 752. See also Brizendine v. State, 4 Ark. App. 19, 627 S.W.2d 26 (1982).
In the case at bar, the evidence was undisputed that Officers Mickel and Wilkins were merely “feigned” accomplices. Indeed, it is conceded on appeal that both were operating as undercover police officers. Under these circumstances, we hold that the trial court did not err in refusing to submit their status as accomplices to the jury.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Mark A. Johnson, appeals his conviction of possession of a controlled substance with intent to deliver. He received a sentence of five years and was fined $25,000.
The circumstances leading to appellant’s arrest and eventual conviction were a result of a consensual search of his vehicle given after he had been stopped for speeding. Appellant sought to exclude evidence found based on the alleged illegality of the search. A suppression hearing was held on appellant’s motion in which he contended that the consent to search was involuntary, and that the arresting officer had no reasonable suspicion to request permission to search the car. Finding that appellant’s consent was voluntary, the trial court denied the motion to suppress.
On appeal, appellant again raises the arguments that the consent to search was not voluntary, and that there was no reasonable cause to request a search of the car. In addition, appellant contends that the trial court erred in excluding a proposed jury instruction. We find no error and affirm.
On December 17, 1986, appellant was stopped for speeding on Interstate 40 by State Trooper Blake Wilson. Wilson noticed that appellant had a California driver’s license, while the car he was driving displayed Wisconsin tags. When Wilson asked for an explanation, appellant replied that the car was a rental which he was driving one way to Florida to visit his parents for Christmas. He also stated that he planned to return to California by plane.
Wilson had appellant sit in the police car while the ticket was being written, as it was cold outside, and he engaged appellant in conversation. Wilson observed that appellant avoided eye contact with him, and seemed nervous and in a hurry to be out of Wilson’s presence.
Wilson then asked appellant for permission to search the car. When asked what Wilson would be looking for, Wilson informed appellant that he would be looking for drugs, large quantities of money, stolen property or firearms. Appellant agreed to allow the search and signed a standardized consent form. Appellant offered to let Wilson look in the trunk, and while doing so, Wilson discovered a small quantity of what he believed to be marijuana in appellant’s shaving kit. Wilson placed appellant under arrest, at which time the appellant volunteered that the wrapped Christmas packages in the trunk also contained marijuana. It was later determined that the packages held 46.1 pounds of marijuana.
All searches without a valid warrant are unreasonable, unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). Consent is a justification for a warrantless search. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). The state has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given, and that there was no actual or implied duress or coercion. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In reviewing a trial court’s ruling with respect to a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances, and reverses only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, supra.
In contending that the consent to search was not voluntary, appellant makes three arguments in connection with this issue. First, he argues that the consent was a product of coercion by Trooper Wilson. Appellant alleges that the consent was obtained while he was sitting in the front of the police car, where Wilson intimidated him by calling him “boy,” and by stating “that he could make it easy or hard on himself.” Appellant claims that he was under the impression that he was not free to leave and that the search would have been conducted even in the absence of his consent. Appellant also contends that he was unaware of his right to refuse or limit the search.
It has been held that the burden of proof on the issue of a voluntary consent cannot be discharged by the state merely by showing acquiescence to the search; the state must show that there was no actual or implied coercion. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987).
In assessing the totality of the circumstances, the knowledge of the right to refuse is only one factor to take into account. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987). In this case, the consent form signed by appellant expressly provides that the appellant had the right to refuse and to revoke the consent at any time.
Wilson testified that appellant consented to the search by stating he “wouldn’t mind,” even after Wilson told him that he would be looking for drugs. Wilson stated that appellant signed the consent form after having read it over, and after Wilson offered to explain any provision that appellant may not have understood. Furthermore, appellant gave his assistance by retrieving the keys, permitting a search of the trunk first, and by opening the trunk for Wilson. These circumstances indicate cooperation on the part of the appellant, and not acquiescence or coercion.
Appellant’s cooperation is further demonstrated in that after he was arrested and read the Miranda warnings, he told Wilson that this was his fourth such trip and that he was being paid $2,000, plus expenses. Appellant further stated that this arrangement provided him the means to visit his parents in Florida. Under these circumstances, we cannot say that appellant was coerced into consenting to the search of the car.
Secondly, appellant argues that the consent form itself demonstrates implied coercion because it speaks of an “investigation.” He claims that the usage of this term implies that the person is being detained for some violation, indicating that the person is in trouble. However, other express provisions of the form provide that no promise, threat or coercion of any kind has been made, and it states that consent may be refused and revoked. Thus, read in its entirety, the interpretation appellant seeks to place on the form is not warranted.
In appellant’s final argument as to the lack of voluntary consent, appellant asks this court to pass on the credibility of the appellant’s testimony as compared to that of Trooper Wilson. While we note that the appellant’s testimony was diametrically opposed to that of Trooper Wilson, we decline to address this argument. It is not the function of an appellate court to assess the credibility of witnesses. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
In sum, based on a review of all the circumstances, we cannot say that the trial court’s finding that appellant’s consent was freely and voluntarily given is clearly against the preponderance of the evidence.
Appellant’s next point for reversal concerns the refusal of the trial court to suppress evidence due to the lack of reasonable suspicion to request the consent to search. The basis for this argument is found in Garrett v. Goodwin, 569 F. Supp. 106 (E.D. Ark. 1982).
The appellant’s argument must fail because reasonable suspicion is not required in order to request the consent to search. The question raised by appellant was recently addressed and rejected by the supreme court which declined to extend this requirement beyond roadblock situations. See McIntosh v. State, supra.
As his last issue, appellant claims as error the trial court’s refusal to allow a proffered jury instruction. The instruction appellant sought to have the jury consider was based on the above-mentioned argument concerning reasonable suspicion and requesting consent to search. Since it is not the law for requests to search to be made upon reasonable suspicion, it was not error for the court to disallow the instruction. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).
AFFIRMED.
Corbin, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
Appellant, Sylvia Johnson, appeals from her conviction of criminal solicitation to commit capital murder. She was charged on July 1, 1986, and tried on March 10, 1988. She contends the charge should have been dismissed for failure to grant her a speedy trial. Ark. R. Crim. P. 28.1(c) was amended by a Per Curiam issued July 13, 1987, but as it existed at the time of appellant’s arrest it provided:
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty,. . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2 ....
Under Rule 28.2(a) the time for trial begins to run from the date the charge is filed except, if prior to that time the defendant has been continuously held in custody or on bail, the time begins to run from the date of arrest. Here, the trial court found the date of arrest to have been June 19,1986, and it is agreed that appellant was on bail from that date until trial on March 10, 1988. This period of time is obviously more than 18 months, but the state contends there were two periods excluded under Rule 28.3(a) which provides:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period. [Emphasis added.]
The state argues there were two periods excluded under the above rule. One period relates to a continuation granted because a witness was unavailable, and the other period relates to the time for examination and hearing on the competency of the defendant to stand trial. Although the appellee contends that the language in Rule 28.3(a) providing that “no pretrial motion shall be held under advisement for more than thirty (30) days” means that the period of time to be excluded from pretrial proceedings is limited to only 30 days, no authority is cited to support that contention, and we think appellant is clearly wrong in that regard.
However, once the defendant has made a prima facie showing that the speedy trial rule has been violated, the burden shifts to the prosecution to show the delay was legally justified. Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988); Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987); Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986); Glover v. State, 287 Ark. 19, 695 S.W.2d 829 (1985); and Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). We find the state has made that showing in this case and we affirm the appellant’s conviction.
The record shows that on October 2, 1986, in response to a letter dated September 16, 1986, from defense counsel stating that he intended to defend on the basis of mental disease or defect, the prosecution filed a motion asking that appellant be committed to the Arkansas State Hospital for mental examination. A response to this motion was filed on October 7, 1986, admitting that appellant had notified the prosecution that she would raise a mental defense and pointing out that under Ark. Stat. Ann. § 41-605(2) [now codified as Ark. Code Ann. § 5-2-305(b) (1987)] the court had four alternatives: (1) direct a mental examination at a regional mental health center, (2) appoint a qualified psychiatrist to examine appellant and make a report to the court, (3) direct the Arkansas State Hospital to examine appellant and make a report, or (4) commit the appellant to the Arkansas State Hospital for a period of thirty days or longer. Appellant’s response also stated that either of the first three alternatives would be satisfactory but she would strenuously object to any commitment to the Arkansas State Hospital. The transcript of the hearing on appellant’s motion to dismiss reveals that appellant’s attorney mailed a copy of the appellant’s response to the deputy prosecuting attorney and stated in the cover letter that appellant’s attorney thought they should get in touch with the judge for a hearing on the motion for mental examination. That letter concluded, “I assume that at this point in time a continuance is likely.” At that time, the case was set for trial on November 13, 1986.
The record shows that on November 10, 1986, the court issued an order committing the appellant to the Southeast Arkansas Mental Health Center at Pine Bluff, Arkansas, for a period not to exceed 30 days and directing the center to report back to the court in writing. The transcript of the hearing on the motion to dismiss further reveals that two appointments were made at the Southeast Arkansas Mental Center for appellant, but she did not keep either appointment and the Center wrote the judge stating that it preferred not to reschedule an examination. The discussion at the hearing also revealed that defense counsel wrote the Center apologizing for the failure of his client to appear for the examinations and asking that the decision not to evaluate his client be reconsidered. The next pertinent date referred to in the hearing is December 29, 1986, the date of a letter the court received containing the result of the Center’s mental examination of appellant.
Under Ark. R. Crim. P. 28.3(a), the period of time required for the examination and evaluation of the defendant’s competency to stand trial is excluded. In Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988), the court excluded a 223-day period for mental examination. See also Scott v. State, 286 Ark. 339, 691 S.W.2d 859 (1985), where 32 days were excluded. At the hearing in the instant case, appellant’s attorney conceded that the period from the date of the order for the examination, November 10, 1986, to the date of the examination, December 15,1986, should be excluded. The trial court, however, excluded the period from September 16, 1986, the date of the letter from appellant’s counsel requesting mental examination, to December 29, 1986, the date the court received the Center’s report of its examination. Under the circumstances in this case, we do not believe the court erred. The examination at the Pine Bluff facility was ordered at the appellant’s request. It is clear that appellant’s counsel thought this request would result in a hearing and a continuance. Then, it was appellant’s failure to keep the appointments that caused the examination to be delayed until December 15, 1986, and the report was not received by the court until December 29, 1986. Thus, we think the trial court properly excluded the period from September 16, 1986, to December 29, 1986. This is slightly more than three months. Eighteen months from the date of arrest on June 19,1986, would be December 19, 1987. When we add the excluded period of three months, the eighteen months for- trial is extended to March 19, 1988. Appellant was tried on March 10, 1988, and therefore, her right to a speedy trial was not denied. Thus, we see no need to discuss the continuation granted because of witness unavailability.
In her brief to this court, the appellant argues that there was no written order entered setting out the excluded period as required by Ark. R. Crim. P. 28.3(i). However, we have found no place in the transcript where this matter was called to the trial court’s attention. This same situation was before the Arkansas Supreme Court in Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988), and the court said the point would not be considered on appeal since it was not presented to the trial court. See 295 Ark. at 390.
Affirmed.
Cracraft and Rogers, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Circuit Court, Fourth Division. Appellant, Bobby Thompson, appeals his conviction of criminal attempt to commit theft by deception, a violation of Arkansas Code Annotated Section 5-3-201 (1987), and the sentence imposed therefor. We affirm.
A felony information was filed December 26,1986, alleging that on July 1,1986, appellant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of the offense of theft of property by deception. The information was amended on September 25,1987, to allege that appellant was an habitual offender, having previously been convicted of four or more felonies. Appellant was tried by a jury on June 6, 1988, and convicted as charged. In a bifurcated proceeding, appellant was sentenced to a term of twenty years in the Arkansas Department of Correction, as an habitual offender. From the judgment of conviction comes this appeal.
In his only point for reversal, appellant argues that he was denied his constitutional right to be free of double jeopardy. Appellant contends that the state’s charge of attempt to commit theft of property by deception placed him in double jeopardy for a crime to which he pled guilty in federal court. We disagree.
Appellant was indicted in federal court on February 17, 19 87. The indictment alleged that between January 26,1986, and January 8,1987, appellant knowingly and with intent to defraud used unauthorized access devices (credit cards) to obtain property valued in excess of $1,000.00 in interstate commerce, a violation of 18 U.S.C.A. Section 1029(a)(2) (Supp. 1989). The indictment listed, as the credit cards obtained and used, Chevron/Gulf, Sears Roebuck and Company, Radio Shack, Shuster’s Home Furnishings, Texaco, and Exxon. Appellant pled guilty to the charge on March 30, 1987. In connection with the federal charge, the record reveals that appellant, Bobby Gene Thompson, received in the mail a credit application addressed to Bobby Joe Thompson and bearing Bobby Joe Thompson’s social security number. The mailing essentially stated that Mr. Thompson had a good credit rating and that a credit card could be obtained by completing and signing the application. Appellant completed the application and received the credit card. The other cards were apparently received in the same manner. The cards were then used by appellant to obtain goods and services from the credit card issuers.
The state charge was initiated after appellant completed a lease application for a vehicle at Walt Bennett Ford and it was discovered that appellant allegedly used Bobby Joe Thompson’s social security number and employment record on the application, and supplied, as credit references, credit cards and/or charge accounts which he obtained without authorization. One of the four credit card accounts listed on the lease application was involved in the federal offense.
Prior to trial, appellant moved to have the state charge dismissed as a violation of his right to be free from double jeopardy. The motion was denied and a trial on the merits followed. Appellant admitted having used Mr. Thompson’s social security number and employment record when completing the application. Thus, the only question before us is whether this conduct constituted the same offense as the federal offense to which he pled guilty.
Appellant urges us to employ the test of Blockburger v. United States, 284 U.S. 299 (1932), to determine if he was twice put in jeopardy for the same offense. Blockburger held that two offenses are not the same if each requires proof of a statutory element that the other does not. See also Ark. Code Ann. § 5-1-114(1 )(A) (1987). However, such a comparison is not necessary in the case at bar. Had appellant been convicted in state court for attempted theft of property by deception from the credit card issuers, we would have a different case before us and such a comparison would be necessary.
The conduct for which the federal offense was prosecuted was the unauthorized use of credit cards to obtain goods and services, with the intent to defraud the issuing companies. Although the federal indictment alleged that the conduct occurred over a period of approximately one year, during which time the state offense was committed, there was uncontradicted evidence that Walt Bennett Ford was not one of the companies involved in the federal prosecution. The victims there involved were those companies from which appellant purchased goods and services valued at over $ 1,000.00, using the fraudulently obtained credit cards.
The state charge was directed specifically to appellant’s conduct in attempting to defraud Walt Bennett Ford, which not only involved one of the credit cards listed in the federal indictment, but also involved appellant’s unauthorized use of Mr. Thompson’s social security number and employment record. Appellant has not been convicted twice of defrauding the credit card companies. Although appellant defrauded Walt Bennett by posing as Mr. Thompson during the same period he used Mr. Thompson’s credit cards without authorization, there were different victims and thus separate offenses. See Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986); Smith v. State, 283 Ark. 264, 675 S.W.2d 627 (1984); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). We find no error in the trial court’s denial of appellant’s motion to dismiss based upon former jeopardy.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
In this appeal from the Workers’ Compensation Commission the appellant, Janie M. Pigg, contends that the Commission erred in denying her benefits. We affirm.
The facts are not in dispute. Mrs. Pigg was employed by Auto Shack and was in a management training position. On November 10, 1985, two women and a man entered the Auto Shack store and began arguing with the store’s assistant manager, Mike Ernst. One of the women was Ernst’s estranged wife and the other two were her relatives.
Mrs. Pigg testified that while the argument was occurring, she was working the cash register and that she did not speak to any of the people. When Mrs. Ernst began getting loud and knocking things off the shelves, Mr. Ernst yelled for someone to call the police. At that point, the man pointed to Mrs. Pigg and stated that she was the one who had come to Russellville.
Mr. Ernst testified that he and his wife had separated and that shortly before the assault at Auto Shack, he asked Mrs. Pigg if she would go to Russellville with him to pick up his daughter. After conferring with her husband, Mrs. Pigg agreed to go on the condition that she would wait in the car. Mrs. Pigg testified that she had seen the man who pointed her out in Auto Shack when she accompanied Mr. Ernst to Russellville.
After the man identified Mrs. Pigg, one of the women came through an opening in the counter and pulled Mrs. Pigg’s hair with enough force to pull her to the floor. Mrs. Pigg stated that the next thing she knew she was on the floor and was being hit and kicked by Mrs. Ernst and her two relatives.
As a result of the assault, Mrs. Pigg was injured, incurred medical expenses, and she filed a claim for benefits with the Workers’ Compensation Commission. The administrative law judge found that her injuries did not arise out of or in the course of her employment, and that the assault was personal. The full Commission concurred and adopted the opinion of the administrative law judge. On appeal, the appellant does not contend that her injuries arose out of her employment. She argues that the Commission should have awarded her benefits by applying the “positional risk” doctrine, because she would not have been assaulted had she not been at work.
In the case of assaults, the general rule is that injuries resulting from an assault are compensable where the assault is causally related to the employment, but such injuries are not compensable when the assault arises out of purely personal reasons. Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987). A case in which an assault was found to be compensable is Townsend Paneling, Inc. v. Butler, 247 Ark. 818, 448 S.W.2d 347 (1969). In that case, Butler refused to wager with a co-worker that the co-worker had at least $3.00 of change in his pocket, and Butler indicated that he wanted to work. The co-worker walked off, returned, and hit Butler on the side of the face with an oak board. Citing the general rule, the Supreme Court affirmed the Commission’s award of compensation. The court held that the sole reason for the assault was Butler’s refusal to depart from his duties and therefore, the assault was held to be causally related to the employment.
A claimant before the Workers’ Compensation Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment, J & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980), but the positional risk doctrine provides a method of satisfying the “in the course of’ requirement where the source of the injury is unexplained. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983) (Cooper, J., concurring).
An important and growing number of courts are accepting the full implications of the positional risk test: An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. . . . This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he was injured by some neutral force, meaning by “neutral” neither personal to the claimant nor distinctly associated with the employment.
1 Larson, Workmen’s Compensation Law, § 6.50 (1985) (emphasis in original).
The doctrine does not provide a new ground for recovery, but allows a presumption to arise in favor of compensation where the accident causing the injury was unexplainable. For example, in Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), the claimant was at work when a storm arose and the gas station lost electricity. While securing a sign outside, a gust of wind picked the claimant up, carried him 75 feet and dropped him on a concrete apron. Although the court did not use the words “positional risk” doctrine in awarding benefits, Parrish represents the type of fact situation where the presumption arises.
In the cases of assaults, the positional risk doctrine applies only when the risk is neutral. 1 Larson, Workmen’s Compensation Law, §11.21. Neutral means that the risk which caused the injury was neither personal to the claimant nor distinctly associated with the employment. Adkins v. Teledyne, Exploration Co., 8 Ark. App. 342, 652 S.W.2d 55 (1983). In other words, before the doctrine will be applied there must be no evidence that the assault was personal and no evidence that the assault was work related. See, Morris v. Soloway, 170 Mich. App. 312, 428 N.W.2d 43 (1988); Chala v. OK Tire Store, 112 Idaho 1020, 739 P.2d 319 (1987); Devault v. General Motors Co., 149 Mich. App. 765, 386 N.W.2d 671 (1986).
In the case at bar, the positional risk doctrine clearly cannot apply because there was evidence from which the fact finder could find that the assault committed on the appellant was personal in origin. Therefore, we affirm the Commission’s denial of benefits.
Affirmed.
Corbin, C.J., and Rogers, J., agree. | [
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Judith Rogers, Judge.
This case involved the disputed ownership of two outdoor advertising signs that are located on appellant’s property, but which were placed on the property by the appellee. The appellant, B. Gene Bilo, appeals the decision of the Union County Circuit Court in favor of appellee, Acme Outdoor Advertising Company, which instituted this action in replevin for the recovery of the two signs. The trial court, sitting without a jury, found that the signs were the personal property of the appellee by virtue of a lease agreement entered into between appellee and appellant’s predecessor in title. We agree with the trial court, and affirm.
The two advertising signs in question stand on a lot located at 714 North West Avenue in El Dorado, Arkansas. On October 6, 1965, appellee and the owner of the property at that time, James R. Mitchell, entered into a lease agreement whereby appellee was given exclusive permission to erect and maintain advertising signs on the property. Ownership of the property changed several times, until it was purchased by Dr. D.R. Vyas. On April 21, 1986, Dr. Vyas and appellant, as purchaser, executed a real estate contract for the sale of this lot.
This dispute arose over the ownership of the signs when J. C. Billingsley, president of the appellee company, contacted the appellant in August of 1986 regarding the renewal of the lease which was due to expire in October. Billingsley was told that the lease would not be renewed. It was apparent from their conversations that each claimed ownership of the signs, thus giving rise to the filing of this lawsuit.
At trial, appellant maintained that the signs were annexed to the freehold as fixtures, and thus ownership of the signs passed to him upon acquiring title to the property. The appellant denied having actual or constructive knowledge of the lease agreement, and the nature of the appellee’s interest in the signs. However, the record reflects that appellant was advised by Dr. Vyas, his grantor, that there was a lease agreement with appellee who was paying $600 a year in rent, that the lease was subject to annual renewal in October, and that there was a “30 day notice” provision in the agreement. The real estate contract itself makes reference to the signs as indicated in handwritten additions to the contract. While there was testimony that Dr. Vyas was uncertain as to the specific terms of the lease agreement, appellant claimed that he assumed the signs were included in the purchase of the property, and he made no inquiry into the details of the agreement.
Conversely, the appellee claims ownership of the advertisement signs as personal property pursuant to the 1965 lease agreement, which provides:
All advertising sign boards placed on the premises under this agreement shall remain the property of the individual or company to which permission is granted, and may be removed by it at any time. It is agreed that, after the first year, the grantor of this permission may order the advertising signboards removed at any time by giving the grantee 30 days notice in writing, in case the grantor sells the premises or improves same by erecting a building on said premises, and upon consummation of said sale, or improvement thereon, the grantor shall refund to the grantee, the rent paid in advance, prorata, from the time of the removal of the boards.
In support of its claim, appellee presented evidence that it had paid personal property taxes for the signs, and that it had applied for and received an outdoor advertising permit from the State of Arkansas. Appellee also showed that the lease had been’ renewed with the various owners of the property over the years, including Dr. Vyas.
In holding that the advertising signs were the personal property of the appellee, the trial court found that the appellant had notice of the existence of the subsisting lease agreement, and thus was not an innocent purchaser. The trial court further found that the appellant’s failure to ascertain the terms of the agreement did not deprive appellee of its ownership of the signs as reserved in the lease.
For reversal, appellant contends that the evidence was insufficient to sustain a finding of notice of the lease agreement concerning the signs, and that the trial court misconstrued certain handwritten portions of the real estate contract between appellant and Dr. Vyas. Upon review, the findings of the trial court will not be reversed unless they are clearly against the preponderance of the evidence. Smith v. Flash TV Sales & Service, Inc., 17 Ark. App. 185, 706 S.W.2d 184 (1986); Ark. R. Civ. P. 52(a).
The primary issue on appeal is whether the appellant took title to the property subject to the terms and conditions of the lease agreement. According to the decision of Hankins v. Luebker, 224 Ark. 425, 274 S.W.2d 356 (1955), the law is well settled that parties by agreement may treat as personal property machinery and improvements which would otherwise be part of the realty, and thus convert it into personal property. Where fixtures have been severed from the land by agreement, a subsequent purchaser with notice takes subject to the agreement. Id. Guidance can also be found in the decision of Cochrane v. McDermott Advertising Agency, 6 Ala. App. 121, 60 So. 421 (1912), rendered by the Alabama Court of Appeals. There it was held that agreements severing fixtures from the realty are personal covenants as between the parties that do not run with the land, unless there is anything reasonably calculated to put the purchaser on notice or that would cause inquiry that would lead to notice or knowledge.
The lease agreement at hand discloses the intent to sever the advertising signs from the land and treat them as personal property. As indicated in the Hankins, supra, and Cochrane, supra, decisions, notice, either actual or implied, is the key element in binding subsequent purchasers to the terms of the agreement.
The trial court found, and we agree, that appellant had notice of a lease agreement concerning the signs. Appellant was told by Dr. Vyas prior to purchasing the property that appellee had a lease for which $600 per year in rent was paid, and which was subject to annual renewal. He was also advised that there was a 30 day notice provision in the agreement, and the real estate contract by which appellant purchased the property makes specific reference to the signs, and provides that the buyer will honor all lease agreements. Furthermore, the signs themselves have the name “ACME” displayed on them.
Appellant’s contention that he was not made aware of the specifics of the lease agreement and the nature of the appellee’s interest in the signs has no merit. We hold that appellant was aware of sufficient facts concerning the lease agreement, and therefore had a duty to inquire into the nature and terms of the agreement. Notice of facts putting a man of ordinary prudence on inquiry is tantamount to knowledge of the facts to which the inquiry might lead. Affiliated Laundries v. Keeton, et al., 270 Ark. 841, 606 S.W.2d 370 (1980).
Appellant further argues that the appellee failed to put him on notice as to his claim of ownership by not recording the lease agreement. The trial court was aided by the expert testimony of Gibson Sims, who had considerable experience in the area of outdoor advertising. Sims related that it was customary for outdoor advertisers to approach owners of potential advertising sites and to request permission to build and maintain advertising signs on the owner’s property. To facilitate this, Sims stated that a ground lease would be obtained in which ownership of the signs would be reserved in the advertisers along with the right of removal, and then space on the signs would be subleased to the advertiser’s customers. According to Sims, the standard practice is to obtain a ground lease, erect the signs and sublease the space on the signs to customers. He testified that automatic renewal is accomplished by payment and acceptance of rent rather than redrawing yearly leases and recording them. He further stated that leasing of space on signs owned by a landowner as well as yearly written and recorded leases are not the standard in the industry because these practices are unprofitable.
Appellant’s second argument for reversal is based on the trial court’s construction of the handwritten portions of the real estate contract entered into by appellant and Dr. Yyas. The appellant argues that the court erred by reading three separate handwritten additions of items as referring to one another, when they were intended to be read separately. Specifically, the trial court found in paragraph C of the letter opinion that “Dr. Vyas knew of the lease and the same was noted on the Real Estate Contract between Dr. Vyas and Mr. Bilo. It was recorded in pencil or pen ‘. . .no rent on the signs on the property will be paid 5-30-86 — -Buyer will handle the existing lease agreement.’ ”
The appellant contends that the “5-30-86” notation and the “buyer will handle the existing lease agreement” were added to separate paragraphs of the contract, and did not pertain to the clause referring to the rent on the advertising signs. We note that the contract uses the word “honor” rather than “handle,” but the appellant ignores the fact that the contract expressly makes reference to the signs and the rent to be paid on them, and that in a fourth handwritten addition to the contract in paragraph 16, entitled “Other Conditions,” the contract specifically provides that the “[b]uyer will honor all existing lease agreements.” We cannot say that the trial court’s finding that appellant was not an innocent purchaser and that he should have been put on notice by the express terms of the contract itself is clearly erroneous. Therefore, we hold that the decision of the trial court finding that the advertising signs were the personal property of the appellee is not clearly against the preponderance of the evidence.
AFFIRMED.
Corbin, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Judge.
George J. Hodge appeals from his conviction of driving while intoxicated, fourth offense, for which he was sentenced to a term of one year in the Arkansas Department of Correction and fined $900.00. We find sufficient merit in one assignment of trial error to warrant a new trial.
Appellant first challenges the sufficiency of the evidence to support his conviction. We decide that issue before considering any alleged trial error for the reasons stated in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the jury’s verdict, without weighing it against conflicting evidence that may be favorable to the accused, and will affirm the jury’s verdict if it is supported by substantial evidence. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985).
The evidence most favorable to the State shows that at approximately midnight a police officer observed a vehicle parked on the side of the road with smoke pouring out from under its hood. Upon investigation, he observed that the key was in the ignition, that the motor was running, and that the appellant was positioned with his feet on the driver’s side and his body “keeled over” towards the passenger side. When the officer pulled appellant from the vehicle, appellant could not tell him his name and had no driver’s license. There was a smell of alcohol about his person and other indications that the appellant was intoxicated. The officer then placed him under arrest for driving while intoxicated.
Arkansas Code Annotated § 5-65-103 (1987) (formerly Ark. Stat. Ann. § 75-2503 (Repl. 1985)) declares it to be unlawful for an intoxicated person to operate or be in actual physical control of a motor vehicle. The object of this legislation is to prevent intoxicated persons from not only driving on the highways, but also from having such control over a motor vehicle that they may become a menace to the public at any moment by driving it. This statute does not require that the police officers actually see an intoxicated person drive the vehicle or exercise his control over it. In a prosecution for driving while intoxicated, actual control of the vehicle by the defendant may be proved by circumstantial evidence. Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). In Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985), the court held that evidence that an intoxicated appellant was found asleep behind the wheel of a car with the ignition key turned on is sufficient to sustain a conviction of being in control of the vehicle. Here, appellant concedes that he was intoxicated, and, as the officer testified that the appellant was found in the driver’s position with the engine actually running, the jury could properly have concluded that he was in actual physical control of a motor vehicle.
Arkansas Code Annotated § 5-65-111(3) (1987) (formerly Ark. Stat. Ann. §75-2511 (Supp. 1985)) provides that a person who is found guilty of driving or being in control of a vehicle while intoxicated may be sentenced to a term of not less than one nor more than six years for the fourth offense occurring within three years of the first offense. Here, there was introduced into evidence three certified copies of municipal court judgments tending to prove previous convictions of committing the offense of driving while intoxicated within the last three years. Also introduced was a certified copy of a judgment of the circuit court of Conway County, entered after the municipal court judgments, showing that appellant had appeared with his attorney and entered a plea of guilty to “fourth offense DWI.” We cannot conclude from our review of the record that the evidence was not sufficient to support a finding of guilt of the underlying charge of operating or being in control of a motor vehicle while intoxicated or that appellant had previously committed the same offense on three prior occasions within three years of the offense for which he was being tried.
Appellant’s defense was based on testimony that a companion, not he, had driven the vehicle to the location where the officer found it. The companion testified that, although the vehicle was owned by appellant, appellant had not driven it but was passed out on the backseat when the automobile became inoperable and “would not move” due to transmission problems. The companion testified that he left the car on the side of the road and went for help approximately an hour before the police officer made the arrest.
Over appellant’s objection, the trial court instructed the jury as follows:
If you find that the defendant was located behind the wheel of a motor vehicle, operable or not, with the keys in the ignition and the motor running, then you will find that he is in actual physical control of a motor vehicle.
(Emphasis added). Appellant argues on appeal that the issue of whether he had driven the vehicle or was or had been in control of it within the meaning of the act was a question of fact for the jury to determine from the circumstantial evidence it had before it. He contends that it was error for the court to remove that issue from the consideration of the jury by a binding instruction. We agree that this was prejudicial error for which a new trial is warranted.
When a binding instruction contains an erroneous statement of the law or ignores an essential issue of the case, it constitutes prejudicial error. Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972). As previously stated in this opinion, it is not necessary for there to be direct evidence that the accused actually drove or attempted to drive the vehicle. The fact finder may infer actual physical control from circumstantial evidence that the accused was behind the wheel with the keys in the ignition. See Roberts v. State, supra; Altes v. State, supra; Azbill v. State, supra; Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985). None of those cases, however, hold that proof of those circumstances establishes that element of the offense as a matter of law. They hold only that proof of such facts constitutes substantial evidence to support such a finding, i.e., that a jury may infer from those facts that the accused person was in actual physical control of the vehicle. Nor do any of those cases hold that a vehicle’s operability is irrelevant to the issue of actual physical control, as this instruction informed the jury, and we think it possible for a vehicle to be so incapable of operation that subsequent control over it would fall outside the purview of the statute. Whether the State had established that appellant was in actual physical control in this case was a matter for the jury to determine based on all the facts and circumstances before it, and we conclude that it was error for the court to instruct the jury that it must find against appellant on this element of the offense if it found that circumstances existed from which an inference of this element could be drawn.
We find no merit in the State’s argument that appellant’s argument that the instruction was faulty was not properly preserved by objection in the trial court. While the record does sustain the State’s argument that the appellant initially objected to the instruction on the ground that it was abstract because there was no evidence to establish that the appellant was actually behind the wheel, we think it clear from the entire discussion between the court and counsel on that instruction that the issue was properly preserved. Subsequent to his initial objection, appellant objected on the ground that “I think it should be left up to the jury, and whether — and using their common, every day sense. Is a person in control of a vehicle, just because he’s sitting in it or layin’ down in it and the thing is running?” Counsel also pointed out to the court in this argument that, although the engine was running, there was evidence that the vehicle could not have been operated, and that he did not think the jury should be instructed that it could not consider that issue.
After the jury returned its verdict of guilt on the underlying offense, the trial court told the jury that appellant had four prior convictions for the same offense:
So, your finding of the conviction was actually a conviction of a fifth offense, but fourth offense is as high as you go. From fourth on — fourth, fifth, sixth, seventh is — the punishment is the same.
Appellant now argues for the first time that the judge erred in informing the jury that there were four prior convictions because this deprived him of a jury trial on the issue of that element of the offense. As we do not consider issues raised for the first time on appeal, we do not base our reversal of this case on this issue. Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). However, due to the likelihood that this error could occur again on retrial, we note that the fact of prior convictions is an element of the crime of driving while intoxicated, fourth offense, and is to be determined by the jury. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). The court must determine the admissibility of the evidence of prior convictions, but it is up to the jury to determine that the evidence in fact establishes that element of the offense.
Appellant next contends that the trial court erred in sustaining the prosecutor’s objection to a question askecj of the arresting officer on cross-examination. We do not address this issue because, as the record neither reflects a proffer of what the officer’s answer would have been nor makes the substance of the excluded testimony apparent, we cannot determine whether its rejection was prejudicial. See Teas v. State, 23 Ark. App. 154, 744 S.W.2d 739 (1988); Ark. R. Evid. 103(a)(2).
Although the appellant alleges other trial errors, we do not address them because we do not think it likely that the issues will arise on retrial.
Reversed and remanded.
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James R. Cooper, Judge.
This appeal follows the entry of an injunction against the appellant, Eagle International, Inc., by the Ashley County Chancery Court in an action brought by the City of Crossett Port Authority to force the appellant to move its two boats berthed in the Crossett Harbor turning basin.
At trial, the appellant asserted that a lease entered into between the parties permitted the berthing of the boats at the south side of the turning basin alongside the leased property and that a permit issued by the United States Army Corps df Engineers also provided the necessary authorization. On appeal, the appellant has abandoned its argument that the lease entitled it to berth the boats in the turning basin. Instead, it argues that, because the turning basin is part of the navigable waters of the United States, the only authorization required for it to berth its boats in the turning basin was granted by the United States Army Corps of Engineers in its permit. The Port Authority concedes that the Crossett Harbor turning basin is part of the navigable waters of the United States but asserts that it has concurrent authority over the turning basin.
The Port Authority owns approximately 130 acres along U.S. Highway 82 where it intersects the Quachita River, and it has constructed a ship channel and turning basin off the Quachita River. The Port Authority was created by an ordinance of the City of Crossett for the purposes of acquiring, equipping, and operating a port on the Quachita River at this site, which is five to six miles west of Crossett. At the eastern edge of the ship channel and turning basin is a five-lane concrete boat ramp which is owned by the Port Authority and is used for access to the Quachita River. Also located on the 130 acres is an elevated field area, seven to eight acres in size, on which the Port Authority is in the process of constructing a warehouse, public scales, and a wharf or dock in pursuit of its plan to operate a public port at the harbor. The Port Authority is also in the process of entering into a lease for the operation of a commercial marina at the harbor and has indicated that, after the marina is developed, people will be permitted to berth their boats there for a fee. With rare exception, the shoreline of the Quachita River in Ashley and Union Counties is under the management of the United States Fish and Wildlife Service, which does not allow boats to be berthed on the Ouachita River except with special permits of limited duration. At the time the complaint was brought, the United States Army Corps of Engineers was in the process of constructing recreational improvements on lands owned by the Port Authority.
In late 1985 or early 1986, Jim Garner, an owner and vice president of the appellant, requested permission from the Port Authority to temporarily moor the appellant’s boat, the Second Wind,” referred to as a “party barge” by the Port Authority, at the harbor. The Port Authority gave the appellant permission to temporarily berth the boat at the harbor. The appellant later brought a second boat, the “Wimico,” into the harbor and moored it alongside the other boat without permission from the Port Authority, which then notified the appellant that it must remove the boats from the harbor; after several requests, the appellant removed the boats for a few months in the fall of 1987 but brought them back to the harbor in 1988. Throughout the history of this dispute, the Port Authority has had a policy of not permitting any type of pleasure craft to be located on a permanent basis in the ship channel and turning basin.
On February 19, 1988, the Port Authority brought this action against the appellant and Glad Industries, Inc., for an injunction requiring them to remove the boats from the turning basin. Glad Industries was dismissed from the action after it was determined that it had no interest in the boats.
On May 23, 1988, the United States Army Corps of Engineers granted the appellant a permit to “place mooring dolphins and a floating dock” at the south side of the turning basin. The permit also granted after-the-fact authorization for an existing fifty-foot-long floating dock utilized by the appellant at the site. The permit stated, “ [t] his permit does not obviate the need to obtain other Federal, state, or local authorizations required by law” and was expressly issued pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. Section 403 (1986).
A decree was entered on June 13, 1988, granting an injunction directing the appellant to immediately remove the boats from the turning basin and restraining the appellant from bringing the boats into the turning basin in the future unless “it is in accordance with the rules and regulations adopted by the Crossett Port Authority for the general public use of those facilities.” In the decree, the chancellor stated:
Eagle also contends that the Crossett Port Authority has no jurisdiction over the waters of the turning basin and ship channel. Eagle has submitted a brief citing numerous cases but those cases are not applicable to the facts in this case. The Crossett Port Authority has jurisdiction over the turning basin. The deed from the United States Army Corps of Engineers to the Port Authority, plaintiffs Exhibit 2C, specifically grants the Port Authority jurisdiction over the turning basin. However, the deed reserves unto the Corps of Engineers exclusive jurisdiction over the ship channel itself and provides that the Port Authority shall not impede public use of the ship channel. The Crossett Port Authority does not have jurisdiction over the ship channel. Only the United States Army Corps of Engineers has jurisdiction over the ship channel. However, the boats in question are berthed in the turning basin and not in the ship channel.
At trial, the chancellor stated that he did not consider the turning basin to be part of the “navigable stream of the Quachita River.” The appellant has urged, and the Port Authority has conceded on appeal, that this finding is incorrect. The appellant argues that, therefore, the Port Authority cannot enjoin its berthing of the boats in the turning basin after the issuance of the permit by the United States Army Corps of Engineers. The Port Authority asserts that, although the turning basin is indeed part of the navigable waters of the United States, that fact does not warrant reversal of the chancellor’s decision. The Port Authority argues that it still retains some power to regulate the use of the turning basin and has the authority to order the appellant to remove its boats. We agree. If the decision of the trial judge is correct for any reason, we will not reverse his decision. Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984).
33 U.S.C. Section 403 (1986), under which the permit in the case at bar was issued, provides:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
In Ark. Code Ann. Section 14-186-206 (1987), it is provided that “[t]he jurisdiction of a municipal port authority in any harbors, ports, or river-rail and barge terminals within the state shall extend over the waters and shores of the harbors or ports.”
The permit issued by the United States Army Corps of Engineers gives appellant permission to place mooring dolphins and a floating dock at the south side of the turning basin. It does not give appellant permission to moor two boats in the turning basin, nor is it evidence that the United States Army Corps of Engineers has complete authority over the turning basin. The permit specifically states “ [t] his permit does not obviate the need to obtain other Federal, state, or local authorization required by law.”
In Cummings v. Chicago, 188 U.S. 410 (1903), the United States Supreme Court was asked to decide the question whether the appellants could proceed with the work on a dock in disregard of a Chicago ordinance requiring a permit because the plans for the dock were approved by the United States Engineer stationed at Chicago, and the permit was subsequently granted by the Secretary of War pursuant to Section 10 of the Rivers and Harbors Act of 1899. The Court stated:
We come now to the merits of the suit as disclosed by the bill. The general proposition upon which the plaintiffs base their right to relief is that the United States, by the acts of Congress referred to and by what has been done under those acts, has taken “possession” of Calumet River, and so far as the erection in that river of structures such as bridges, docks, piers and the like is concerned, no jurisdiction or authority whatever remains with the local authorities. In a sense, but only in a limited sense, the United States has taken possession of Calumet River, by improving it, by causing it to be surveyed, and by establishing lines beyond which no dock or other structure shall be erected in the river without the approval or consent of the Secretary of War, to whom has been committed the determination of such questions. But Congress has not passed any act under which parties, having simply the consent of the Secretary, may erect structures in Calumet River without reference to the wishes of the State of Illinois on the subject.
188 U.S. at 426-27. In Cummings, the Court acknowledged that, if the power of the state and that of the federal government come in conflict, the power of the federal government will control.
Again, in Wisconsin v. Illinois, 278 U.S. 367 (1929), the Court, citing its earlier decision in Cummings v. Chicago, supra, stated: “[Section 10 of the Rivers and Harbors Act of 1899] was not intended to override the authority of the State to put its veto upon the placing of obstructing structures in navigable waters within a State and both State and Federal approval were made necessary in such case.” 278 U.S. at 412.
The power of Congress over the navigable waters of the United States is clearly paramount whenever Congress has definitely spoken on the subject. We do not, however, agree with appellant’s assertion that, having obtained the United States Army Corps of Engineers’ permit, it can dispense with the need for the permission of the Port Authority in berthing its boats within the Crossett Harbor turning basin. The permit herein is only a finding that appellant’s proposed mooring dolphins and floating dock will not interfere with or be detrimental to navigation, and it is not equivalent to a declaration that the appellant may proceed with mooring its boats in the Crossett turning basin without first obtaining the consent of the Port Authority. Accord Cobb v. Lincoln Park Comm’rs, 202 Ill. 427, 67 N.E. 5 (1903).
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Circuit Court, Second Division. Appellant, Lee Thomas, appeals from a judgment entered March 10,1988, which dismissed his cause of action against appellee, Allstate Insurance Company. We affirm.
Appellant purchased an insurance policy from appellee insuring a dwelling at 3312 Short Spring Street in Little Rock, Arkansas, against a loss by fire. The house was insured in the amount of $18,000: The house was damaged by fire on May 29, 1987, and appellant made demand upon appellee for the benefits under the policy. Appellee admitted the validity of the policy but denied liability under a provision which excluded loss caused by intentional acts of the insured. Appellant brought suit for the policy limit of $ 18,000, plus damages, attorney fees, and costs. As a defense to appellant’s claim, appellee contended that the fire in question was incendiary in origin and occurred at the insistence of appellant and was, therefore, excluded under the policy. A jury trial was held on March 9, 1988, and a verdict was returned for appellee. A judgment was rendered on the jury verdict dismissing appellant’s claim for benefits under the policy. From this judgment, this appeal arises.
Appellant raises the following five points for reversal: 1) The trial court erred in denying the motion for a directed verdict; 2) the jury verdict was not supported by substantial evidence; 3) the trial court erred in denying the motion for summary judgment, motion for new trial and/or motion for judgment notwithstanding the verdict; 4) the trial court erred in permitting Gary Jones to testify as to his opinion that the property was overinsured; 5) the trial court erred in permitting hearsay testimony.
In cases in which it is contended that the evidence was insufficient to support the appellee’s claim, and in which this court is also being asked to review the denial of a motion for a directed verdict, the evidence, along with all reasonable inferences deducible therefrom, is examined in the light most favorable to the party against whom the motion is sought. McWilliams v. Zedlitz, 294 Ark. 336,742 S.W.2d 929 (1988). If there is any substantial evidence to support the verdict, we will affirm the trial court. Storthz v. Commercial Nat’l Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). As to the substantiality of the evidence, we will not disturb the jury’s conclusion unless we can say there is no reasonable probability in favor of appellee’s version and then only after giving legitimate effect to the presumptions in favor of a jury’s finding. Haynes v. Farm Bureau Mut. Ins. Co. of Ark., 11 Ark. App. 289, 669 S.W.2d 511 (1984).
In this case, a review of the evidence most favorable to appellee convinces us that the jury verdict dismissing appellant’s cause of action is supported by substantial evidence. We agree with appellant that a mere showing of arson does not relieve the insurer from liability under a fire policy. It is also necessary to prove by direct or circumstantial evidence that the insured set the fire or caused the house to be burned. Id.
While there were no eyewitnesses to the setting of the fire, the deliberate burning of an insured’s building by its owner is usually accomplished alone and in secret. However, any material fact in issue may be established by circumstantial evidence. The fact that evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it can be inferred. Farmer’s Ins. Exch. v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983). The circumstances may be such that different minds can reasonably draw different conclusions from them without resort to speculation. Where there are facts and circumstances in evidence from which reasonable minds might reach different conclusions, the matter is an issue of fact which must be submitted to the jury for determination. Id.
A review of the evidence in the light most favorable to appellee reveals that the fire was of incendiary origin. Gary Jones, an inspector and cause and origin investigator for the Little Rock Fire Department, testified that he investigated the fire at appellant’s property at approximately 1:00 a.m. on May 29, 1987. He testified that he determined the fire was arson based on the physical appearance of the scene as well as the presence of a strong odor of gasoline inside the dwelling. Mr. Jones testified that he did not need to use the hydrocarbon detector to detect a possible accelerant because the odor of gasoline was so prevalent. His testimony further revealed that a hole was burned through the floor in the kitchen indicating that an accelerant was introduced because a fire burns up and out, not down. Mr. Jones opined that approximately two gallons of gasoline were applied at the scene. He also testified, without objection, that he submitted a one gallon can of ash and debris to the crime lab for analysis and the report came back positive for gasoline.
Jack Kinney, a private investigator specializing in fire investigation, testified that he also investigated the fire in issue. His testimony revealed that the major burn damage occurred around the kitchen sink. Mr. Kinney stated that the hole in the kitchen floor revealed a burn through the top flooring, subfloor-ing, and the floor joists beneath. He testified that the downward burning was unnatural and a “clear indication of the use of a flammable liquid.” Mr. Kinney’s testimony disclosed other indications that the fire was incendiary in origin.
The above evidence presents sufficient evidence from which the jury could determine that the fire was of incendiary origin. The issue for resolution, therefore, becomes whether the evidence supports the conclusion that appellant set the fire or caused the house to burn.
Appellant testified that he bought the house in 1986 for $7,000, paying $400 down and $100 per month. At the time of purchase the house was insured for $18,000 and appellant assumed the insurance. He testified that he later inquired if appellee would increase the coverage on the house; however, appellee denied his request.
Collectively, the testimony of the fire investigators Jones and Kinney revealed that the fire was not the type set by juveniles or transients. Their testimony further revealed that indications of arson include fires started between 8:00 p.m. and 4:00 a.m., presence of flammable liquids, unoccupied or vacant houses and overinsured property. Here, the fire occurred after midnight, a flammable liquid was present, the house was vacant and insured for $11,000 more than the purchase price.
There was also evidence presented that appellant was experiencing financial difficulties at the time of the fire. Appellant was behind on his bills and was indebted to his brother. Further, the Internal Revenue Service had a lien against him for collection of money due. With appellant’s permission, Lawrence Cromwell and his family moved into the Short Spring Street house around the first of May of 1987. The Cromwell family moved out of the house a day or two before the fire at appellant’s request. Although appellant testified he partially lived in the house until Cromwell moved in, the evidence indicated that he resided with Ruby Lewis at another address. The electrical power was disconnected at the Spring Street address in July of 1986 and was not reconnected prior to the fire. Also, there was no water service at the house until the Cromwell family moved in the first of May. There was evidence from which the jury could infer that appellant had a motive for the arson and that he set the fire or caused the house to be burned. The evidence was in conflict; however, we cannot conclude that reasonable. minds could not reach the jury’s conclusion or that its finding is not supported by substantial evidence.
Finding substantial evidence to support the verdict negates appellant’s next contention that the trial court erred in denying his motion for a judgment notwithstanding the verdict because a trial court can enter such a judgment only if there is no substantial evidence to support the verdict. McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). Alternatively, appellant argues that the court erred in not granting his motion for a new trial. It is well settled that the matter of granting or denying a new trial lies within the sound discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977). From all evidence of record, we find no abuse of discretion in the trial court’s refusal to grant a new trial or no manifest prejudice to appellant by the court’s actions in this regard.
Appellant also argues that the trial court erred in denying his motion for summary judgment. It is well settled that a summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure, is appropriate only when the pleadings, depositions, answers to interrogatories, requests for admissions, together with the supporting affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Farmer’s Ins. Exch. v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983). It is also well settled that any facts submitted by an affidavit with a motion for summary judgment must be viewed in the light most favorable to the party against whom the motion is made, with all doubts and influences being resolved against the movant. Jackson v. Petty Jean Elec. Co-op, 268 Ark. 1076, 599 S.W.2d 402 (Ark. App. 1980).
In this case, the evidence established that the house was deliberately burned. Additionally, there was evidence presented that appellant either set the fire or caused the house to be burned and we agree with the trial court that there was a genuine issue as to a material fact presented on that point. Therefore, we conclude that the trial court did not err in refusing to grant appellant’s motion for summary judgment.
Next, appellant argues that the trial court erred in permitting Gary Jones to testify as to his opinion that the property was overinsured. During appellee’s direct examination of Mr. Jones, he testified about factors surrounding a fire which indicate arson. During the course of this testimony, Mr. Jones stated: “Another indicator is a vacant or unoccupied house. And then another to me, in this case, like I said, is this house, in my opinion, was way overinsured. When I found out how much it was insured for, I couldn’t believe it.” Appellant’s attorney objected to this statement based upon lack of proper foundation and requested the court strike it from the record. The court sustained the objection, struck the portion of the statement involving Mr. Jones’ opinion that the house was over insured and admonished the jury. Mr. Jones then continued with his testimony relating that he spoke with appellant after the fife regarding basic information pertaining to the property and the insurance coverage. Mr. Jones generally related that appellant told him how much the property was insured for, and that Jones investigated the scene of the fire and was familiar with the condition of the house.
At the time, appellee’s attorney requested that the court reconsider its ruling because he felt the proper foundation had been laid for the admission of the opinion. The court held as follows:
I’m going to allow his opinion to stand and allow that opinion he had about the value to remain purely as to the basis of his opinion, but it doesn’t prove a thing as to whether or not it was overvalued. It just goes to show that’s why he believed what he did but that doesn’t prove it was overvalued in insurance because this gentleman is not qualified to state that. I’m allowing it just merely as a basis for his opinion only.
During this time, appellant failed to renew his motion or to lodge a new objection that the subsequent testimony of Mr. Jones still was inadequate to form the proper foundation.
Because appellant failed to object or to renew his previous objection based upon lack of foundation, the trial court was not apprised that appellant still deemed the foundation inadequate. See A.R.E. 103(a). This court does not consider matters which were not before the trial court. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987).
Lastly, appellant argues the trial court erred in allowing John P. Kinney to testify that he took samples at the scene to determine if a flammable liquid had been used. Further, he testified that he submitted the sample to the laboratory and they determined gasoline was used. Appellant’s attorney objected to the latter remark upon the basis of hearsay. The court then required the witness to restrict his testimony to what he actually found. Specifically, appellant argues that the laboratory finding was hearsay. However, where the defendant allows other witnesses to offer the same testimony without objection, he has failed to demonstrate any prejudice from the alleged error, and this court will not reverse absent demonstrated trial error. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Here, before Mr. Kinney testified, Gary Jones was allowed to testify, without objection, that he too took samples of debris from the scene and presented the samples to the State Crime Laboratory for analysis. Additionally, he testified that the report came back from the laboratory reflecting that the sample submitted tested positive for gasoline. Therefore, appellant failed to demonstrate any prejudice from Mr. Kinney’s statement, as he allowed Mr. Jones to offer the same testimony without objection.
Affirmed.
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Judith Rogers, Judge.
The appellant, Linda Tiller, appeals the finding of the Workers’ Compensation Commission that she was entitled to permanent partial disability benefits in an amount equal to fifty percent of the body as a whole. She argues that there was no substantial evidence to support the decision that she was not permanently and totally disabled. We disagree and affirm.
Appellant suffered a compensable injury to her back in December 1982, while working for the appellee. On January 13, 1985, appellant fainted at work and fell to the restroom floor, reinjuring her shoulder, neck and back. In a hearing on August 21, 1985, the administrative law judge found that the 1985 accident was an idiopathic fall and was not related tp the compensable injury of 1982. The full Commission affirmed. This Court disagreed and remanded this case for determination of the compensation to which the appellant is entitled as a result of both the 1982 and 1985 falls. Tiller v. Sears, Roebuck & Company, CA86-335 (Ark. Ct. App. July 15, 1987).
On remand, the administrative law judge found that appellant was temporarily and totally disabled from January 13,1985, through January 27, 1986, as a result of the 1985 fall. The administrative law judge also found that as a result of both falls appellant is “permanently and totally disabled from performing gainful employment.”
The duty of the Workers’ Compensation Commission is to make a finding in accord with the preponderance of the evidence and not on whether there is any substantial evidence to support the findings of the administrative law judge. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). In the instant case, the Commission reversed the findings of the administrative law judge. The Commission found that the appellant’s healing period ended on April 9, 1985, and that appellant was not permanently and totally disabled. The Commission found that appellant is entitled to permanent partial disability in an amount equal to fifty percent of the body as a whole.
Appellant argues on appeal that there is no substantial evidence to support the Commission’s decision that appellant is “anything less than totally disabled.” On review, in workers’ compensation cases, we view the evidence in the light most favorable to the findings of the Commission. We do not reverse unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the same conclusion reached by the Commission. Appleby v. Belden Corp., 22 Ark. App. 243, 738 S.W.2d 807 (1987).
The Commission found that appellant failed to prove by a preponderance of the credible evidence that she is permanently and totally disabled. Appellant testified that she continues to experience problems with her neck, right shoulder and back, and that she has difficulty sitting or standing for long periods of time. The Commission noted that appellant further stated that she is able to sit for twenty-five to thirty-five minutes and stand for thirty to thirty-five minutes. Appellant also related that she is able to drive a car. She stated that the medication she is taking eases her pain at times so that she can rest, but “the pain is always there.” Appellant stated that she is unable to return to work.
In its opinion, the Commission stated that appellant’s testimony regarding her inability to work is not consistent with the physicians’ findings and opinions. The Commission noted that appellant was assigned an anatomical impairment rating equal to fifteen percent to the body as a whole as a result of her compensable injuries. In his report of January 27, 1986, Dr. Larry G. Lipscomb stated that appellant may return to work with certain restrictions:
She may return to work but will need to avoid repetitive bending. She can work in an area between mid thigh and breast level and try to work no more than 18 inches from her body. Lifting should not exceed 25 lbs in this region. There should be no repetitive bending. She may stoop to pick up objects no greater than 10 times per hour.
Many factors, not just medical evidence are to be considered in a determination of wage loss disability. Consideration should be given to the claimant’s age, education, experience and other matters affecting wage loss, including the degree of pain he endures as a result of the compensable injury. Arkansas Wood Products v. Atchley, 21 Ark. App. 138, 729 S.W.2d 428 (1987). The Commission noted that appellant was a forty-six year old woman with a high school education. Her work experience included working as a cashier, using an adding machine, taking payments for accounts and working up deposits.
The Commission cited City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). The Commission noted that appellant had shown no motivation to return to work and had not attempted to do so, and went on to state that it may lawfully consider the claimant’s lack of interest in future employment in assessing wage loss disability. A closer reading of that case, and thecaseof Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982), that it relies upon, reveals that where a claimant’s lack of interest in employment is an impediment to the Commission’s full assessment of the claimant’s loss of earning power, the claimant cannot complain.
The Commission found that the evidence was insufficient to support an award of permanent and total disability. The Commission then found that after considering the various wage loss factors that appellant had suffered a wage loss disability in an amount equal to thirty-five percent of the body as a whole and had an anatomical impairment rating of fifteen percent. Therefore, the Commission found that appellant was entitled to permanent partial disability benefits in an amount equal to fifty percent of the body as a whole.
The Commission’s specialization and experience make it better equipped than we are to analyze and translate evidence into findings of fact. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987). We cannot state upon review of the evidence that there was no substantial evidence to support the Commission’s decision.
AFFIRMED.
Cracraft and Mayfield, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Boyd T. Huls, appeals his conviction of second degree murder for which he received a sentence of twenty years in the Arkansas Department of Correction. On appeal, he raises three points for reversal: (1) the trial court erred in admitting hearsay statements of the victim, Pasha Williams, made to her dentist, Dr. Allen Windberry; (2) the trial court erred in admitting into evidence photographs of the victim taken at her autopsy; and (3) the trial court erred in denying appellant’s motion to suppress evidence found in a search of his residence. We disagree and affirm.
The appellant was charged with second degree murder, a class B felony, pursuant to Ark. Code Ann. § 5-10-103(a)(2), in connection with the death of Pasha Williams, which occurred early on the morning of December 10, 1986. The appellant contends that it was error for the court to have allowed Dr. Allen Windberry’s testimony regarding certain statements that were made to him by Ms. Williams during a visit to his office on the basis that the testimony was hearsay. At trial, Dr. Windberry, Ms. Williams’ dentist, testified that he had treated Ms. Williams in May of 1986 for some missing and cracked teeth, which required bridgework to be done. He further testified that upon inquiry, Ms. Williams told him that this injury was caused by appellant’s having thrown a lamp at her.
At a conference held on the morning of trial, appellant’s counsel made an oral motion in limine with reference to and request for the exclusion of Dr. Windberry’s testimony regarding the “broken teeth and the history he apparently took from the patient.” The trial court denied the motion, finding that the testimony would be admissible as an exception to the hearsay rule as a statement made for the purposes of medical diagnosis or treatment.
The statement with regard to the appellant’s having inflicted this injury was hearsay, in that it was offered for the truth of the matter asserted, as indicated by the prosecution’s argument at trial that the testimony was relevant to show intent, motive and lack of mistake or accident. See Ark. R. Evid. 404(b). On appeal, the state does not argue that the statement was not hearsay, but that it was otherwise admissible pursuant to an exception to the hearsay rule. The state argues either that the statement falls into the exception noted by the trial court which is found at Ark. R. Evid. 803(4), or that it qualifies as an excited utterance pursuant to Rule 803(2). We conclude, however, that the statement falls into neither exception. Nevertheless, we affirm because of appellant’s failure to make an appropriate and timely objection to the testimony at the time it was offered.
Ark. R. Evid. 803(4) provides that statements made for the purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain or sensation, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment, are not excluded by the hearsay rule, even though the declarant is available as a witness. As stated in United States v. Renville, 779 F.2d 430 (8th Cir. 1985), the crucial question under the rule is whether the out-of-court statement of the declarant was “reasonably pertinent” to diagnosis or treatment. The Eighth Circuit in United States v. Iron Steel, 633 F.2d 77 (8th Cir. 1980), promulgated a two-part test for the admissibility of hearsay statements under this exception: (1) the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis. In Renville, the court stated:
Statements of identity seldom are made to promote effective treatment; the patient has no sincere desire to frankly account for fault because it is generally irrelevant to an anticipated course of treatment. Additionally, physicians rarely have any reason to rely on statements of identity in treating or diagnosing a patient. The statements are simply irrelevant in the calculus of devising a program of effective treatment.
United States v. Renville, 779 F.2d at 436. See also, Stallnacker v. State, 19 Ark. App. 9, 715 S.W.2d 883 (1986). Inasmuch as the statement in the present case identified the appellant as the source of the declarant’s injury, we are persuaded by the reasoning in Iron Steel, supra, and Renville, supra, and conclude that the testimony was not admissible pursuant to this exception.
Nor can we conclude, based on the record before us, that the statement was admissible as an excited utterance. An excited utterance is defined as a statement relating to a startling event or condition made while the declarant was under the stress and excitement caused by the event or condition. Ark. R. Evid. 803(2). The admissibility of a statement as an excited utterance is not to be measured by any precise number of minutes, hours or days, but requires that the declarant is still under the stress and excitement caused by the traumatic occurrence. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). The record is devoid of any testimony tending to show that the declarant, Ms. Williams, was still under the influence of stress or excitement associated with the startling event when the statement was made. In the absence of such evidence, we cannot conclude that the statement falls within this exception. In sum, we find that the statement was hearsay and does not fall within the parameters of either Ark. R. Evid. 803(4) or 803(2).
As previously noted, appellant made what can be deemed an oral motion in limine seeking to exclude testimony from Dr. Windberry as to “the broken teeth and the history he took from the patient,” Ms. Williams. Given the motion as stated, the trial judge was correct at this juncture in his ruling that such testimony fell within the hearsay exception as a statement made for the purposes of medical diagnosis or treatment. Absent from the motion, however, was any argument made as to the inadmissibility of statements concerning identity or fault, as excepted from this exception to the hearsay rule. Appellant did not object to the testimony of Dr. Windberry identifying the appellant as the perpetrator of the injury, with the result being that appellant has broadened the scope of his earlier objection on appeal.
It is not necessary for a party to object during trial in order to preserve his pretrial objection, but his failure to object or move to strike the testimony during trial precludes him from relying on anything then disclosed which had not been brought out in the pretrial hearing. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). The trial judge should deny a threshold motion that is vague and indefinite because the motion is properly used to prohibit the mention of some specific matter, perhaps of an inflammatory nature, until its admissibility has been shown out of the hearing of the jury. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981) (emphasis supplied). It has been held that when a motion in limine is overruled, no further objection is needed. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1982). However, as pointed out in the concurring opinion in Ark. State Hwy. Comm’n v. Pulaski Investment Co., 272 Ark. 389, 614 S.W.2d 675 (1981), an objection should be renewed when the motion is overly broad or vague, so as to provide the trial judge with an opportunity to determine the admissibility of the specific matter that is introduced. We hold then that appellant’s failure to object to this testimony when offered precludes him from asserting its admission as error on appeal.
At trial, through the testimony of Dr. Fahmy Malak, the state medical examiner, ten photographs of the victim were admitted into evidence. The appellant next argues that four of these photographs should not have been admitted on the grounds that these photographs were not relevant and were highly prejudicial. Of the four photographs in question, two portrayed Ms. Williams’ exposed scalp, one showed her exposed rib cage, and the other was of her lip.
The admissibility of photographs is within the sound discretion of the trial judge, and his decision will not be reversed absent an abuse of that discretion. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). The fact that photographs are inflammatory is not sufficient reason alone to exclude them. Inflammatory photographs are admissible in the discretion of the trial judge if they tend to shed light on any issue, enable a witness to better describe the objects portrayed, permit the jury to better understand the testimony, or corroborate testimony. Id. Where the prejudice substantially outweighs the probative value of the photographs, it is error for the trial judge to admit them. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). In Berry, the supreme court expressed the view that trial courts should not engage in carte blanche acceptance of graphic and repetitive pictures into evidence.
In the instant case, upon the request of appellant’s counsel, the trial judge, counsel and Dr. Malak retired to chambers before the introduction of any photographs to discuss their admissibility. Dr. Malak briefly explained what the substance of his testimony would be in relation to each of the photographs or the purpose for which each of the photographs would be offered. Although two photographs of the victim’s scalp were withdrawn by the state as being cumulative, the trial judge found that the remaining photographs were admissible. In making this determination, it is clear from the record that the trial judge specifically addressed the probative value of the photographs as opposed to the potential for prejudice.
The appellant was charged with second degree murder pursuant to Ark. Code Ann. § 5-10-103(a)(2). The state had the burden of proving that appellant knowingly caused the death of another person under circumstances manifesting an extreme indifference to the value of human life. Dr. Malak testified that the cause of death was a blunt trauma to the head and neck. He stated that the two photographs of the scalp were helpful in illustrating the injury to the head, and that the photographs of the rib cage and lip showed further the extent of her injuries. In addition, as the state points out, the photograph of the lip was also offered to rebut the appellant’s contention that Ms. Williams’ death was attributable to the negligent use of a laryngoscope, which was used in an effort to revive her at the hospital. Dr. Malak testified that the injury to the lip depicted in the photograph was a result of a direct blow to the lip, and could not have been caused by a laryngoscope. We cannot say that the trial court abused its discretion in admitting these photographs.
As appellant’s final point, he argues that the trial court erred in denying his motion to suppress evidence obtained in a search of his residence conducted at 7:00 a.m. the morning of December 10, 1986. The record reflects that Deputy Sheriff Paul Martin was called at approximately 4:45 a.m. the morning of December 10th to come to the hospital where Ms. Williams had been taken by the appellant. Officer Martin testified that he accompanied the appellant back to his home without objection, where he conducted a search of the house in which he confiscated a hammer and a blood-stained blanket, which he also photographed. Officer Martin related that the appellant cooperated with him in the investigation of the house and that the appellant allowed the search to take place. With regard to this search, the appellant testified that “he (Officer Martin) said that he was going to look through the house and I agreed.” The trial court found that the appellant voluntarily consented to this search, and denied the motion to suppress.
In reviewing the trial court’s ruling with respect to a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances, and reverses only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). The state has the burden of proving by clear and positive testimony that the consent to search was freely and voluntarily given, and that there was no actual or implied duress or coercion. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). We cannot say that the trial court’s denial of the motion to suppress, upon its finding that the appellant freely and voluntarily consented to the search, is clearly erroneous.
AFFIRMED.
Mayfield and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
On May 12,1987, the appellants, John and Devonia Milam, filed a petition to adopt Elizabeth Ann Milam alleging that the natural mother, Donna Johnson, had given her consent and that the consent of the natural father, James Evans, was not necessary. The probate court entered a temporary decree granting the adoption on July 19, 1987. On August 3, 1987, Donna Johnson attempted to withdraw her consent to the adoption. On September 17, 1987, James Evans filed a petition to set aside the adoption and on November 10 Donna Johnson also filed a similar petition. After a hearing on November 24, 1987, attended by all parties and their attorneys, the court granted temporary custody of the child to the Milams and ordered liberal visitation rights in the appellees under the supervision of the Arkansas Department of Social Services. Further, the court set a hearing on the merits for February 23, 1988. Following the February 23, 1988, hearing, the probate court found that, although it would be in the best interests of the child to be adopted by the appellants, the consent of the natural father was necessary and that the court could not grant the adoption over the natural father’s objection. An order was entered placing custody of the child in the appellants, and both the natural mother and father were given visitation privileges. On appeal, the appellants raise three points for reversal and the appellees have filed cross appeals. We affirm.
The appellants first argue that James Evans had failed significantly to provide support for the child for a period of one year and that the probate court therefore erred in holding that his consent was necessary. We disagree.
Under Arkansas law, a petition to adopt a minor may not be granted without written consent of the parents, unless that consent is not required. Arkansas Code Annotated § 9-9-207 (1987), provides in part that consent to adoption is not required of:
A parent of a child in the custody of another, if the parent for a period of a 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 provided by law or judicial decree.
The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the failure to support the child not only continued for at least one year but also that it was willful, intentional, and without justifiable cause. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); Ark. R. Civ. P. 52(a). On appellate review, we will reverse the probate judge’s findings of fact only if they are clearly erroneous or against the preponderance of the evidence. Id.
The record reveals that the appellees were divorced in April 1985 and that they had two children. According to the terms of the divorce decree, custody of their son was awarded to James Evans’s parents, and the daughter, Elizabeth, who is the subject of this litigation, was placed in the custody of the appellant Donna Johnson. No child support was requested or ordered as to either party. Although James testified that he had not paid child support for Elizabeth, he explained that it was his understanding that he was to totally support the son, and that Donna was to totally support Elizabeth. He also stated that prior to entering the military he visited Elizabeth frequently and sent her gifts. According to James, he entered the Army in October 1986, and was stationed in Korea until October 1987. He stated that he found out about the adoption proceedings and returned to the United States to prevent the adoption. At the time of the hearing he was stationed in Little Rock. Devonia Milam stated that when she and Donna discussed the adoption of the child, Donna told her that Elizabeth’s natural father had left before her birth, that he had never seen the child, and that she did not know his whereabouts.
We find that, under the facts and circumstances of this case, the probate court did not err in finding that the father’s consent was necessary. Although a parent cannot simply turn a child’s care and support over to another and be excused from the duty of providing support for the child, we cannot say that the probate judge erred in finding that, where James relied on the court order, his failure to support Elizabeth was willful or unjustified. See In re Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Loveless v. May, 278 Ark. 127, 664 S.W.2d 261 (1983).
For their second argument, the appellants assert that the trial judge erred in denying the petition for the adoption in spite of the fact that he found that it would be in the child’s best interest for the adoption to be granted. The appellants are essentially arguing that the trial court should have granted the appellants’ petition to adopt because James withheld his consent unreasonably.
Arkansas Code Annotated § 9-9-220(c)(3) (1987) provides that the relationship of parent and child may be terminated when, in the case of a parent not having custody of a child, consent to an adoption is being unreasonably withheld contrary to the best interests of the child. However, while the primary consideration is the welfare of the child, this does not mean that the court can sever the parental rights of nonconsenting parents and order the adoption merely because the adoptive parents might be able to provide a better home. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983). In both Lindsey and In re Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984), the conduct of the noncustodial parents amounted to child abuse and there was expert testimony that the treatment of the children resulted in social maladjustment. In the case at bar there is no evidence that James mistreated or abused Elizabeth. To the contrary, the probate judge found that James gave Elizabeth presents and visited her. Furthermore, the record shows that when James learned of the adoption proceedings, he returned from Korea to prevent it, and exercised his visitation rights in the interim period. He testified that he loved his daughter. In light of this evidence, we cannot say that the probate judge was clearly erroneous in denying the adoption. See Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983). We hold that James did not unreasonably withhold his consent to the adoption.
For their third argument, the appellants contend that the probate court erred in denying the adoption because a temporary order of adoption entered in July 1987 had not been withdrawn. Citing Ark. Code Ann. §§ 9-9-215 and 9-9-213 (1987), the appellants argue that the interloctory decree of adoption had the same force and effect as a final decree of adoption, and therefore the appellees’ parental rights had already been severed.
In McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983), the Arkansas Supreme Court held that once an interlocutory decree of adoption is entered, it is to be construed as a final decree if no subsequent hearing is required by the terms of that decree. (No further hearing was provided for in the case at bar.) Furthermore, consent cannot be withdrawn after the entry of such a decree unless the natural parent seeking to withdraw the consent has made a proper showing of fraud, duress, or intimidation.
Therefore, concerning this particular petition for adoption, the appellants’ argument is correct as to the natural mother, Donna. Absent a showing of fraud, which will be discussed in a subsequent point, Donna’s attempt to withdraw her consent was not timely made. However, we disagree with the appellants as the argument applies to the natural father, James.
James filed a motion to set aside the temporary order of adoption on September 17,1987. In the motion he alleged that at the time the temporary order was entered he was in Korea, that Donna knew how to contact him, that he had visited with the child, and that Donna “did not truthfully state matters which pertained to Movant, James David Evans.” He further alleged that he had not been served constructively. On November 24, 1987, a hearing was held at which all of the parties were present. The probate court issued a temporary order granting custody to the Milams and stating that all of the matters pertaining to the adoption would be litigated on February 23,1987, at which time all the parties were to have their pleadings filed. There is no transcript of this hearing in the record before us and there is nothing in the pleadings which indicates that the appellants asserted the finality of the July 1987 temporary order of adoption as a defense to James’ motion to set aside that order. We therefore decline to address this issue as it pertains to James because we do not consider issues raised for the first time on appeal.
On cross appeal, James Evans argues that the trial court erred in granting custody of the child to the Milams because there was no finding that he was an unfit parent. We disagree with his argument.
Although there is a preference for a natural parent above all other custodians, the paramount consideration in child custody cases must always be the welfare and best interest of the child. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). While we review adoption cases de novo, we will not reverse the probate court’s decision unless it is clearly erroneous or clearly against the preponderance of the evidence. Id. Furthermore, in cases involving child custody a heavier burden is cast upon the court to utilize to the fullest extent all its powers of perception in evaluating the witnesses, their testimony, and the child’s best interests. This Court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as one involving minor children. Id.; Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981).
In this case the probate court specifically found that it would be in the best interests of the child to grant the adoption but that it must be denied because of the father’s objection. At trial James testified that he had been incarcerated in Kansas in 1981 or 1982 for burglary. He also stated that he had given custody of his son to his parents and that if he were given custody of Elizabeth in this proceeding she would live with them until he remarried. Furthermore, he admitted that he did not communicate with Elizabeth for the entire ten-month period that he was in Korea, and that he did not send her a birthday card or write to her. James and Donna were separated before Elizabeth was born and at the time of the divorce she was six months old. The last time he visited with Elizabeth was immediately before he went into training in October 1986.
Although the probate court found that James’ conduct toward Elizabeth was not sufficient to sever his parental rights, he did find that the appellants were the proper custodians for her, and we cannot say that the probate court erred.
On cross appeal, Donna Johnson argues that the probate court erred in not permitting her to withdraw her consent although she had not shown fraud. We find no merit in her argument.
At trial, Donna testified that she had permitted the Milams to take care of Elizabeth while she was getting on her feet financially. She stated that the Milams wanted her to sign a paper which would allow them to seek medical treatment for Elizabeth in case of an emergency, and that she believed she signed a document which granted the Milams guardianship of the child. She stated that she did not understand the difference between adoption and guardianship and that she assumed they were the same thing.
However, Devonia Milam testified that Donna told her that she could not take care of Elizabeth and that she believed the Milams could do a better job providing for her. She also stated that she made it clear to Donna that the only way that she and her husband would take Elizabeth would be through adoption, and that Donna agreed to their terms. The record shows that when Donna and the Milams went to the attorney’s office to sign the adoption consent, Donna brought the child’s shot record and birth certificate and gave them to the Milams. Devonia stated that it was made clear to Donna that her rights to the child would be terminated if an adoption was granted, and that she would have no visitation rights.
Debbie Bates, a legal secretary, testified that she typed the consent and listened while it was read to Donna. She stated that the attorney explained the consent to Donna, Donna signed it, and that she notarized it. The consent itself clearly states that it is consent to adoption.
Donna tried to withdraw her consent in August 3, 1987, after the entry of the temporary decree of adoption in July, 1987. In order to withdraw her consent, it was necessary to show fraud, duress or intimidation. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987), McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983). We affirm the probate court’s finding that Donna’s consent was valid, and its refusal to allow her to withdraw it. After giving due regard to the probate court’s opportunity to determine the credibility of the witnesses, we cannot say that the probate judge’s decision was clearly against the preponderance of the evidence. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983).
Donna Johnson’s last argument on cross-appeal con cerns whether the trial court erred by applying the best interests of the child standard. It is her contention that the probate judge should have considered whether or not she had failed without justifiable cause to communicate with the child for one year, or failed to support her for one year. Ark. Code Ann. § 9-9-207 (1987). The argument is without merit because, as explained earlier, the issue concerning Donna’s consent was limited to the question of whether her signed consent was procured by fraud. The question of whether her consent was or was not necessary is irrelevant in light of our holding that the probate court correctly ruled that her consent was validly given.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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George K. Cracraft, Judge.
Michael Lyn Waeltz appeals from an order of the probate court terminating his parental rights and ties to his three children, and appointing the Arkansas Department of Human Services as guardian of their persons and estates with authority to consent to their adoption. The natural mother of the children entered her consent to such an order and is not involved in this appeal. We find no error and affirm.
At the hearing, the Arkansas Department of Human Services presented evidence of continued physical and sexual abuse of the children by their father, for which they had been removed from his custody and placed in foster care on at least two occasions. According to the two minor daughters, age ten and nine respectively, the appellant had been sexually abusing them for some period of time. There was evidence from a foster parent that when the children were placed with her they were filthy and that one of the children had head lice and impetigo “from the top of her head to her ankles.” She stated that it was apparent that their teeth had not been cared for and that they required extensive dental care. Appellant testified in his own behalf and admitted that he was presently serving time in the Arkansas Department of Correction for the sexual abuse of his children. There was evidence of constant care and counselling by the Department of Human Services and proof that all of the jurisdictional requirements for the entry of an order terminating parental rights and appointment of guardian with right to consent had been complied with prior to filing of the petition. The probate judge found that those facts warranting a termination of appellant’s parental rights had been proved by evidence that was more than clear and convincing.
Appellant first contends that the, trial court erred in not striking the testimony of the nine-year-old child because she was not sworn before she gave her testimony. Without objection by the appellant as to the competence of this witness or an assertion that she had not been duly sworn, the child was permitted to testify to various acts of physical and sexual abuse to which she had been subjected by her father. At the conclusion of her direct examination, appellant moved to strike her testimony because “I don’t believe there was ever any indication she was under oath or under the impression that she should tell the truth until after all her testimony was finished.” Although the record recites that before the witness testified she was first “duly sworn according to law,” the trial judge further inquired as to her qualifications as a witness, her ability to know the difference between truths and falsity, and her moral obligation to tell the truth. She answered a number of questions, convincing him that she did know the difference between the truth and a lie, and was aware of her moral obligation to tell the truth. The judge asked her whether she understood that it was very important that she tell only the truth and whether she promised that everything she had said had been the “honest to goodness truth.” The witness nodded her head affirmatively in response to both questions.
In its ruling, the court stated:
I want the record to reflect in the case of each of these minor witnesses the Court determined after hearing their testimony and watching these children, the manner in which they testified, their reactions at various points, that the administering the oath or requiring them to take the oath was not necessary. The combination of what they said in response to the questions about truth and lies, as well as the manner in which they testified and their demeanor, I concluded the administration of the oath was not necessary or that they be formally qualified in the sense that we ordinarily qualify witnesses.
(Emphasis added.) We conclude that there was no error.
In Hudson v. State, 207 Ark. 18, 179 S.W.2d 165 (1944), the court, on facts peculiarly similar to those here present, stated that no prescribed form of oath is essential if the witness, with knowledge of the consequences of false testimony, understands and assents to the proposition that the testimony she gives will not be false. No particular words must be used, and any language “fairly susceptible of being construed as an acceptation of the Court’s authority, coupled with an understanding of the moral aspect” should not be treated with less dignity than the “familiar words of intonation of an administering officer whose principal purpose is to see that a record is ‘regular.’ ” Id. at 27, 179 S.W.2d at 170.
Here, the testimony of the child correctly stated facts concerning herself, her family, and their relationships. She had clear recollection of prior events and correctly stated the school that she attended and the names of her teachers for the past two years. We find nothing that would indicate that she did not have the ability to receive or retain accurate impressions. She demonstrated that she did have a capacity to transmit a reasonable statement of the times, places, and forms of sexual abuse to which she had been subjected by the appellant. She established that she understood her moral obligation to tell the truth and that she would be punished if she did not do so. She also affirmed to the trial judge that all of her prior testimony had been true. Moreover, on cross-examination thereafter, she reaffirmed all of her prior testimony concerning the sexual abuse. Even if we were to conclude that the recital in the record that the child was in fact sworn before testifying was incorrect, we could not conclude that the trial court’s denial of the motion to strike on these grounds was erroneous.
At the trial, a representative of Suspected Child Abuse and Neglect (SCAN), who interviewed the children in 1983 and again at the time they were removed from the appellant’s home immediately prior to this hearing, testified that at the time she first saw the children she was investigating bruises on one child alleged to have been caused by physical abuse. She testified that at that time appellant admitted to her that he had caused the bruises on the child by spanking her. The worker introduced four photographs which showed substantial bruising on the child’s face, chest, buttocks, and legs. Although the appellant testified at this hearing that he did not cause the bruises, the SCAN worker testified that he admitted it to her at the time. Due to the extent of the bruising shown in those pictures the child was placed in foster care.
The determination of the relevance of evidence is within the sound discretion of the trial court, and that determination will not be reversed in the absence of an abuse thereof. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986). Here, we cannot agree that either this testimony or the photographs were too remote in time. There was evidence that the pictures were true and accurate representations of the condition of the child at that time; that the children were placed in foster care for a period of time as a result of that action; and that after they were returned from foster care on that occasion the abuse continued. In making a decision of whether to terminate the parental rights of a party, the trial court hada duty to look at the entire picture of how that parent discharged his duties as a parent, the substantial risk of serious harm the parent imposed, and whether or not the parent was unfit. Nor can we conclude from our examination of the photographs that they were merely inflammatory. Rather, they simply showed the extent of injury to the child’s body. They were relevant to both the fitness of appellant as a parent and the risk of serious harm imposed by him. We find no abuse of discretion in the admission of this evidence.
During the interrogation of the foster mother of one of the children, she stated that the child was a bed wetter. She also stated that a physician had told her that there was no physical reason why he should not stop wetting the bed with the medication that he was taking. Appellant objected, contending that it was improper hearsay and gave rise to an inference that psychological problems had caused the bed wetting. The foster parent made no other statement or comment at that time which would give rise to any implication that the. child was suffering from psychological problems caused by the appellant’s actions. In other testimony, however, the foster mother of the other children was permitted to testify, without objection, that she had taken the children to a doctor to find out about their bed wetting and that “he told me it was psychological.” We agree with the appellee that it is not reasonable to argue that the case should be reversed simply because hearsay testimony that might imply psychological problems was admitted in one instance where there was no objection to similar testimony in which it was directly stated that a psychological problem did exist.
For the same reason, we find no error in the court’s admission of testimony that the son told a foster parent that appellant had sexually abused his children and that his stepmother had “pulled [appellant] off one of the little girls.” This testimony was elicited from one of the last witnesses presented by the appellee. The record is replete with testimony of social workers who, prior to that time and without objection, were permitted to relate in detail statements of the children as to the sexual and physical abuse by their father. The hearsay statement about which appellant now complains was merely cumulative of prior statements already in the record without objection.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was convicted in a non-jury trial of D WI, second offense. The only issue raised in the trial court was whether law enforcement personnel adequately assisted him to obtain additional blood alcohol testing as required by Ark. Code Ann. § 5-65-204(e)(2) (1987). The trial judge, sitting as the finder of fact, found that the City of Cabot acted reasonably under the circumstances and did assist the defendant in his attempts to obtain an additional test. The results of a breathalyzer test were thereafter admitted, and the appellant was found guilty of second offense DWI. From that decision, comes this appeal.
The only argument raised on appeal is that the trial judge erred in finding that the appellee adequately assisted him in obtaining an additional test, and therefore the breathalyzer test results were inadmissible. We affirm.
Arkansas Code Annotated § 5-65-204(e) provides that:
(e) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
The test result may be admitted into evidence if there was substantial compliance with the statute, Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985), and the officer must provide only such assistance as is reasonable at the place and time. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). Whether the assistance provided was reasonable under the circumstances is a fact question for the trial judge to decide. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985).
The record shows that Robert Higgs, a police officer employed by the City of Cabot, stopped the appellant’s vehicle at 3:31 a.m. on July 12,1987, after he saw the vehicle driven by the appellant cross into the oncoming traffic lane on Locust Street in Cabot. Officer Higgs informed the appellant of his rights with respect to additional testing, and a breathalyzer test was administered. The appellant then requested an additional test. Officer Higgs gave the appellant an opportunity to call a qualified person to come to the police station and draw blood for an additional test, and informed him that, as an alternative, he could have someone pick him up and take him to have a blood alcohol test performed elsewhere if he first posted bond. The appellant requested that Officer Higgs take him to a hospital for testing. Officer Higgs stated that he denied the request. He explained that, although there were normally two officers on duty at that time of night, the police department was temporarily short-handed and he was the only officer on duty: because the nearest facility able to administer an additional test at that time of night was located eight or nine miles away in Jacksonville, the City of Cabot would be without police protection had he transported the appellant for testing as requested. Higgs telephoned the Chief of Police for instructions, and he testified that the chief instructed him not to transport the appellant to the hospital in Jacksonville, and said that the appellant should instead call someone to come and take him for testing.
The record also shows that the trial court carefully analyzed the circumstances of the case and weighed the defendant’s interests against those of the State in deciding that the assistance offered was reasonable. Focusing on the unique situation presented the trial court held that Officer Higgs’ actions were reasonable because compliance with the appellant’s request would have left the City of Cabot without any police protection for the period of time necessary to transport the appellant to Jacksonville for testing, to accomplish the testing, and then to transport him back to Cabot. The trial court’s finding that the level of assistance offered to the appellant was reasonable under the circumstances was amply supported by the evidence, and we hold that the officer’s actions constituted substantial compliance with Ark. Code Ann. § 5-65-204(e)(2) (1987).
Affirmed.
Corbin, C.J., dissents. | [
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John B. Robbins, Judge.
Appellant Jerry Dean Cooper was convicted in a bench trial of the following four felonies: (1) manufacture of methamphetamine; (2) possession of methamphetamine with intent to deliver; (3) possession of paraphernalia with intent to manufacture methamphetamine; and (4) possession ofpseu-doephedrine with intent to manufacture methamphetamine. Mr. Cooper was sentenced to twelve years in prison for each felony conviction, to be served concurrently. He was also convicted of misdemeanor possession of marijuana and sentenced to one year in the county jail.
Mr. Cooper now appeals from his four felony convictions, arguing that none are supported by substantial evidence because the State failed to prove he possessed any of the items associated with the meth lab. Mr. Cooper does not appeal his marijuana conviction. We agree that there was insufficient evidence to support his felony convictions, and we reverse and remand.
When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State, and only the evidence supporting the verdict will be considered. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). A conviction is affirmed if substantial evidence exists to support it. Id. Substantial evidence is evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id.
Officer Anthony Moore testified that he received a tip from a confidential informant that a meth lab was being operated at 4123 South Shackleford Road in Little Rock. Based on the tip, Officer Moore proceeded to the residence and knocked on the door. As he was approaching the house, Officer Moore noticed a strong chemical odor.
Officer Moore testified that he met with the owner of the house, Donald Whitaker, and that Mr. Whitaker signed a form consenting to a search of the house. Officer Moore stated that the only other person present in the house was appellant, Mr. Cooper, and that Mr. Cooper gave verbal consent to search. Mr. Cooper had a bedroom and was living in the house.
Upon inspecting the house, Officer Moore observed some marijuana and white residue on a mirror in plain view. At that time both men were arrested, and Officer Moore did a pat-down search of Mr. Cooper. During the search, Mr. Cooper told Officer Moore that he had marijuana and methamphetamine in his pocket, but Officer Moore only found marijuana. After the search, Mr. Cooper remembered that he placed the baggie of methamphetamine on the kitchen table, and Officer Moore found it there. The methamphetamine found on the table was determined to weigh 0.15 grams.
Officer Moore testified that he continued to search the house and found a locked basement door. The police removed the lock and discovered a large meth lab in the basement. There was a cook taking place and the odor was extremely strong. There was testimony establishing that the ephedrine-reduction method was being used. The police seized all kinds of paraphernalia used to manufacture methamphetamine, along with pseudoephedrine and large quantities of finished product.
There was testimony from two police officers that, while they were not present during the search, Peter Hannah and Janet White had access to the house. They, along with two other people, had previously been seen coming and going from the house. Officer Moore testified on cross-examination that the owner of the house told him that Mr. Hannah had the keys to the lock on the basement door.
For reversal of his felony convictions, Mr. Cooper argues that there was insufficient evidence that he constructively possessed any of the items associated with the meth lab. Appellant acknowledges that circumstantial evidence can constitute substantial evidence to support a conviction when every other reasonable hypothesis consistent with innocence is excluded. See Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003). However, he contends that the circumstantial evidence was insufficient in this case because it was reasonable to conclude that someone else possessed the meth lab.
In Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991), our supreme court discussed constructive possession as follows:
Neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Put in other terms, the State need not prove that the accused had actual possession of a controlled substance; constructive possession is sufficient. Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Id.
Id. at 380, 802 S.W.2d at 460. Mr. Cooper argues that the State failed to establish constructive possession because there was no evidence that he exercised control over the contraband at issue.
Mr. Cooper contends that the State proved that he lived at the house, but nothing more. He notes that the lab was found in the basement of the house, and that he was never seen in proximity of the basement. He further notes that there was a lock on the basement and no evidence that he had a key, while there was evidence that Mr. Hannah had a key. Further, there was no evidence that Mr. Cooper’s bedroom contained any contraband. Mr. Cooper submits that there was no evidence that he even knew the meth lab was there, much less exercised control over it. He further asserts that even if he knew it was there, there was no evidence that he knew what it was or knew of its incriminating nature. Mr. Cooper asserts that “the sole testimony was that [I] was literally locked out of that room.” Because the State failed to prove he constructively possessed any of the contraband associated with the meth lab, appellant requests that this court reverse each of his four methamphetamine-related convictions.
We agree that there was a lack of evidence to connect Mr. Cooper to any of the contraband found in the basement. Joint occupancy is not in itself sufficient to establish possession on joint possession; there must be some additional factor linking the accused to the contraband. Gwatney v. State, 75 Ark. App. 331, 57 S.W.3d 247 (2001). In this case it is arguable that Mr. Cooper was not even an occupant of the area containing the meth lab because it was behind a locked door and there was no evidence that Mr. Cooper had access. Nevertheless, even if we consider him a joint occupant there were insufficient linking factors. While he admitted to possessing a small quantity of methamphetamine found on the kitchen table, there was no evidence to suggest that it was produced by the methamphetamine lab. Under the particular facts of this case, we hold that the State failed to prove constructive possession of the items associated with the meth lab.
Pursuant to our holding, we reverse Mr. Cooper’s convictions for manufacture of methamphetamine, possession of paraphernalia with intent to manufacture methamphetamine, and possession of pseudoephedrine with intent to manufacture methamphetamine. While there was not substantial evidence to support appellant’s conviction for possession of methamphetamine with intent to deliver, there was clearly substantial evidence to support a conviction for the lesser-included offense of possession of methamphetamine, given that appellant admitted to possession of the small quantity seized from the kitchen table. Where the evidence is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser-included offense, we may sentence the defendant or remand the case to the trial court for resentencing. See Allen v. State, 64 Ark. App. 49, 977 S.W.2d 230 (1998). We elect to remand the case with instructions to sentence Mr. Cooper for possession of methamphetamine, a Class C felony.
Reversed and remanded.
Hart, Bird, Vaught, and Roaf, JJ., agree.
Pittman, J., dissents.
The dissent relies on Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003), in concluding that there was an additional factor linking Mr. Cooper to the methamphetamine lab. However, the contraband in that case was found in a residence occupied by Mr.Walley, and there was no evidence recited in the opinion that he jointly occupied the residence with another person. | [
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Melvin Mayfield, Judge.
Appellant,. Daryl (Darrell) Hodges, was convicted by a St. Francis County jury of delivery of a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985) [now codified as Ark. Code Ann. § 5-64-401 (1987)]. On appeal, it is argued by counsel, who was not counsel at the trial, that the trial court erred in refusing to grant appellant a new trial on the grounds that the state’s use of its peremptory jury challenges violated his constitutional rights and because of the ineffective assistance of trial counsel.
Ivan Whitfield, a Pine Bluff police officer, testified at trial that in June 1987, while helping the Arkansas state police investigate the drug trade in and around Forrest City, Arkansas, he purchased two packages of cocaine from the appellant for $25.00 each. According to Whitfield, this occurred at a night club called the Players Palace on the north side of Forrest City. Appellant’s defense was mistaken identity. He claimed he had been mistaken for one of his brothers, possibly Ronnie, or another brother, Theo, who had signed the club’s register the night of the alleged purchase. Appellant denied that he sold the cocaine to Officer Whitfield, and testified that he was never in the Players Club during the summer of 1987.
The jury that found appellant guilty was composed of ten white people and two blacks. However, because the prosecution used five of its six peremptory challenges to eliminate either three or four blacks from the jury, the appellant contends his constitutional rights were violated. At the hearing on the motion for new trial, appellant’s trial attorney admitted that he did not object to the prosecution striking the blacks, even though appellant was black and the proportion of blacks on the jury was not comparable to the nearly 50% black population of the county.
In Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), the Arkansas Supreme Court discussed and followed Batson v. Kentucky, 476 U.S. 79 (1986), in which the United States Supreme Court held that a defendant could make a prima facie case of racial discrimination injury selection by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; or by showing there has been a total or seriously disproportionate exclusion of members of the racial group from the jury venires; or by showing a “pattern” of strikes against members of the group; or by the prosecutor’s questions or statements during voir dire examination. See summary in Ward, 293 Ark. at 92-93. The opinion in Ward said: “This does not mean black people cannot be struck from a jury. It means that if a defendant makes a prima facie case of intentional discrimination, the state must offer some explanation other than race.” Merely denying a discriminatory motive or affirming good faith is not enough; the prosecutor must “articulate a neutral explanation related to the particular case to be tried.” The trial judge must then conduct a “sensitive inquiry” into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Ward, 293 Ark. at 92-93.
Although the jury in Ward did not contain a black juror and there were two black jurors in the present case, the appellant contends that Batson “requires the total elimination of racial consideration in the selection of the jury process.” See Batson where the Court quotes from a prior opinion that “total or seriously disproportionate exclusion of Negroes from jury venires is itself such an ‘unequal application of the law . . . as to show intentional discrimination.’ ” 476 U.S. at 93.
So, in the present case, appellant argues that the striking of the three or four potential black jurors would raise the presumption of racial exclusion which would have required the prosecutor to make “a neutral explanation” related to the case and the court to make a “sensitive inquiry” into the prosecution’s reasons for excluding those jurors. However, no objection was made by appellant’s trial counsel, and no inquiry was made by the judge.
Appellant recognizes that this same situation was presented in Hicks v. State, 143 Ark. 158, 220 S.W. 308 (1920) where the court held the claim that no member of the defendant’s race served, or was summoned to serve, on the jury was made too late when it was first raised in a motion for new trial. See also Tillman v. State, 121 Ark. 322, 181 S.W. 890 (1915); and Eastling v. State, 69 Ark. 189, 62 S.W. 584 (1901). But present counsel for appellant “offers for consideration of the [appellate] Court, that the requirement of Batson places a burden upon the [trial] Court to make a sensitive inquiry for the protection of the Appellant’s constitutional rights to a fair and impartial jury regardless of inaptitude of counsel below.” Counsel urges that, if the prosecution eliminates more than one black from the jury, the trial court should inquire, sua sponte, about the prosecution’s motives and make a sincere and reasoned effort to evaluate the genuineness and sufficiency of its explanation in the light of all the circumstances of the trial.
It has long been the rule in this state that'an argument for reversal will not be considered on appeal in the absence of an appropriate objection in the trial court. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). A defendant must object to perceived error at the first opportunity. Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Moreover, we are not persuaded that the rule should be abandoned. The state’s brief has called our attention to the case of People v. Ortega, 156 Cal. App. 3d 63, 202 Cal. Rptr. 657 (1984), where the court considered whether an objection, made in the form of a motion for mistrial on the grounds that the prosecution had systematically excluded all Hispanics from the jury, was untimely when not made until after the jury was sworn. The court stated five reasons for requiring an objection to be made during the jury selection process:
First, an early objection will facilitate the moving party’s counsel in making the best possible prima facie case. Second, an early objection will place the opposing party on notice.so that counsel may consider whether and on what basis to continue using peremptories against cognizable group members and to prepare to make the best explanation feasible. Third, an early objection will alert the court so that it can intelligently rule on the questions of prima facie case and, if one is found, explanations. In other words, this procedure will insure that the court will pay close attention to the questions asked of and answered by the jurors and other matters bearing on the use of peremptory challenges. . . .
Fourth, this procedure will promote the efficient and economic administration of justice by permitting the court, if it finds discrimination in the use of peremptory challenges, to dismiss the existing jury panel and obtain a new panel without having to wait until the selection process has been completed.
Finally, this procedure will help the courts and parties achieve the most fair and correct result, both below and on appeal.
202 Cal. Rptr. at 661. We agree with this reasoning and also point out that it has been stated numerous times by our supreme court that Arkansas does not subscribe to the doctrine of plain error. See Fretwell v. State, and Wicks v. State, supra. And even error of constitutional dimension may be waived. Collins v. State, 271 Ark. 825, 828, 611 S.W.2d 182 (1981). We also agree with another reason stated in the brief filed for the state — that allowing defendants to raise an objection for the first time in a motion for new trial would give them “license to ‘lie behind the log’ waiting to see if they obtain an adverse verdict before complaining about the jury selection process.” In Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986), the court said, “The defendant cannot wait to see the full strength of the state’s case before bringing his request to the attention of the trial court.” See also Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), and Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952), which held that irregularities affecting the selection or summoning of a jury panel may constitute ground for a new trial only if timely objection is made prior to the verdict. Thus, we decline to allow the issue of the racial composition of the jury to be raised in this case on appeal without a proper objection below.
Appellant also argues that it was error for the trial court to refuse to grant him a new trial on his claim of ineffective assistance of counsel. He contends trial counsel’s failure to object to the prosecution’s use of its peremptory challenges to eliminate three or four blacks from the jury panel is ample demonstration of trial counsel’s incompetence. We do not agree. Trial counsel testified at the hearing on the motion for new trial that he was going to strike two of these people anyway. He said he had no problems with the racial makeup of the jury and was more concerned about the number of women on the jury than whether the members of the jury were black or white. Second guessing an attorney’s trial strategy is not sufficient to show the ineffective assistance of counsel necessary to obtain a new trial on this point. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). The defendant must show that trial counsel’s performance was so deficient and the errors made so serious that the sixth amendment to the United States Constitution has been violated and that the defendant has been deprived of a fair trial; to show denial of fair trial, prejudice must be shown — that there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Hicks, supra. We cannot say that appellant was denied a fair trial.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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Per Curiam.
The appellant in this criminal case was originally charged with aggravated assault, resisting arrest and criminal mischief. On August 18,1987, he entered a guilty plea to all three charges and was placed on supervised probation for a period of three years. The judgment, commitment order, and the “guilty plea statement” recited various conditions of the probation and further stated that violation of the conditions could result in imprisonment for a period of from 0 to 6 years and a fine of $10,000.00. On May 17, 1988, the trial court revoked the appellant’s probation and sentenced him to 10 years on the aggravated assault charges. His retained attorney, Steve In-boden, has filed a brief and motion to be relieved as counsel, citing Anders v. California, 386 U.S. 739 (1967), and Rule 11(h) of the Rules of the Supreme Court and Courts of Appeals, stating that he believes the appeal to be without merit. An abstract of the proceedings, a statement of the case, and an affidavit of no-merit were filed by Mr. Inboden. However, he has failed to properly abstract the record and has failed to brief matters in the record that may arguably support an appeal, as required by the Arkansas Supreme Court and Court of Appeals Rules of Appellate Procedure, Rule 11(h). The Attorney General’s Office has supplied a list of the appellant’s objections, properly abstracted the record, and submitted a brief concurring with Mr. Inboden’s opinion that the appeal was without merit.
However, a no-merit appeal brief written almost entirely by the State does not comport with the constitutional requirements of equal protection and due process set out in Anders v. California, 386 U.S. 739 (1967), and Evitts v. Lucey, 469 U.S. 387 (1985), or with the requirements of Rule 11(h). House v. State, 20 Ark. App. 28, 722 S.W.2d 886 (1987). In Anders, the United States Supreme Court stressed the importance of the attorney in his role as an advocate.
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.
386 U.S. at 743-744. Furthermore, the procedure for handling no-merit appeals applies in the case of both retained and appointed counsel. House, supra; Roberts v. State, 705 S.W.2d 803 (Tex. App. 1986). Because it is arguable that affirming a conviction wholly on the strength of a brief drafted by the State would constitute a denial of the due process right to effective assistance of counsel, we direct that Mr. Inboden comply with the requirements of Anders and Rule 11(h), by filing a proper brief.
We also direct that this case be rebriefed by both Mr. Inboden and the State on an issue not mentioned by either side. As noted earlier, the appellant pled guilty to aggravated assault and was placed on probation for three years. When the trial court revoked the appellant’s probation, it sentenced the appellant to ten years. However, aggravated assault is a class D felony, Ark. Code Ann. § 5-13-204 (1987) (formerly Ark. Stat. Ann. § 41-1604 (Repl. 1977)), and the maximum sentence for a class D felony is six years. Ark. Code Ann. § 5-4-401(a)(5)(1987) (formerly Ark. Stat. Ann. § 41-901(l)(e) (Supp. 1985)).
Recently the Arkansas Supreme Court has reviewed cases involving illegal sentences despite the absence of an objection below. In those cases, the Court has compared the illegal sentence issue to one involving subject matter jurisdiction, which may be raised at any time. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). We wish to emphasize that a circuit court acting in excess of its authority in sentencing is not a matter of subject matter jurisdiction. Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987). However, when a court has imposed an illegal sentence on a defendant, then we will review it regardless of whether an objection was raised below. An illegal sentence is one which is illegal “on its face.” Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Therefore, we could raise the issue on our own. However, since the case must be rebriefed, we choose to obtain the benefit of both counsel’s arguments as to the propriety of the sentence imposed.
The appellant is directed to file a new brief on or before March 15, 1989, with the State’s brief being due on or before April 1,1989, and the appellant’s reply brief due April 12,1989.
Rebriefing ordered. | [
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Andree Layton Roaf Judge.
Amanda Trout appeals from the trial court’s order terminating her parental rights to two of her children, D.T. and W.T. On appeal, Trout argues that the trial court erred in (1) terminating her parental rights against the weight of the evidence presented at the termination hearing and (2) terminating her parental rights as to W.T. but because the child had not been out of the home for a period of one year. We reverse and remand.
.During most of these proceedings, Amanda Trout was married to Andrew Trout, from whom she is now divorced. Amanda is the mother of three children, E.D., D.T., now four, and W.T., now two. Her older son, E.D., was living with his grandmother because he was afraid of Andrew, who had once thrown him across a room. Andrew, who is the father of W.T., had his parental rights terminated in the same hearing, but he does not appeal.
Amanda first became involved with DHS in 1999, when Andrew’s son, J.T., was placed into DHS custody and declared dependent-neglected due to environmental neglect because the home was filthy. Amanda began receiving services at this time, including individual counseling and parenting classes. In December 2000, Amanda’s infant son, D.T., was also placed into DHS custody due to allegations of sexual abuse against Amanda with regard to J.T. The allegations were not proven, and both children were returned to the Trouts in March 2001. However, further incidents ensued, including an altercation between Amanda and Andrew in March in which Amanda allegedly threw J.T. out of the car and left Andrew and J.T. to walk four miles home. DHS again removed J.T., and both Amanda and Andrew were arrested at this time for outstanding warrants unrelated to this case. D.T. was also placed into DHS custody at that time because there was no one left to care for him.
At the May 24, 2001 adjudication hearing, the trial court found that Andrew had abused J.T. by slapping him and that D.T. was at risk of harm from Andrew given his previous treatment of Amanda’s older son. The court also found that Amanda and Andrew had engaged in emotional abuse by cursing at each other and then forcing the child to walk four miles home, and by engaging in physical altercations and other acts in their home in front of J.T. and D.T. Relying on both their prior behavior and their psychological evaluations, the court found that Amanda and Andrew were unfit parents and that D.T. was dependent-neglected. The goal was set as reunification, and the court ordered that both parents undergo counseling and anger-management therapy.
A permanency planning hearing was held on December 11, 2001. At the hearing, the evidence showed that while Amanda had not fully complied with the case plan or court orders, she had a baby, W.T., in September 2001, and had heart problems for which doctors were attempting to stabilize her medication. Amanda was unemployed and was also still married to Andrew, although she testified that she was no longer living with him. Amanda testified that she had missed some visitations because of health problems. Amanda’s DHS caseworker testified that there was a potential for reunification if Amanda complied with the court orders and became stable enough to care for her children.
Several review hearings were conducted in the ensuing months. At the January 2002 review hearing, the evidence showed that Amanda had divorced Andrew, had been awarded full custody of W.T., and had attended most of her visitations with D.T. However, she was still unemployed. Amanda testified that she had not been attending counseling or anger-management classes because she was waiting on Medicaid approval. Amanda stated that Andrew had not been to her home, and that she had met Andrew at a restaurant in order to get a child-support payment from him and to give him a copy of the divorce papers. The caseworker stated that Amanda’s home was suitable, and was the cleanest home she hád seen since working on the case, that Amanda had plenty of food, and that her utilities were on. Amanda stipulated to W.T.’s adjudication as dependent-neglected at this hearing because of her prior problems with maintaining a stable place to live.
In the March 2002 review hearing, the evidence established that Amanda had maintained a stable home and had attempted to attend therapy. She was still unemployed; however, the DHS caseworker testified that Amanda’s visitation had been consistent, that she had not had any contact with Andrew to her knowledge, that she had been trying to comply with the case plan and court orders, and that her stability was much improved. The caseworker recommended that Amanda begin having unsupervised and weekend visits with D.T., in preparation for returning him to the home in July, and recommended reunification with both children.
However, in May 2002, W.T. was placed into DHS custody because of environmental conditions in Amanda’s home on a visit and because Amanda was believed to have allowed Andrew to have contact with the children. After Amanda began weekend visits with D.T., DHS received two complaints from the daycare facility that D.T. was dirty after returning from his visits and had a cut on his ear and scars on his knees. D.T. had told his foster parent that Andrew had pushed him down and pulled his ear. DHS went to Amanda’s home in May to discuss the reports and to check the home for safety. The caseworker testified that the home smelled and that there was trash in the kitchen, a cat litter box in the living room, car parts and dogs in the yard, and fans running in W.T.’s room. The caseworker recommended that W.T. remain in DHS custody and that Amanda’s weekend visits with D.T. be suspended. Amanda denied that she had returned D.T. to daycare dirty. She also denied that Andrew had been staying there, although she did testify that she had a male roommate to help out with the bills. Amanda testified that she saw Andrew about once a week and that she borrowed his car, although they usually met at Wal-Mart.
At the planning hearing in August 2002, employees from D.T.’s daycare facility testified about the earlier incidents in April when D.T. had returned from weekend visits dirty and with a skinned knee. Amanda had been in a car accident in June while riding with Andrew and had lost an unborn child. Amanda had completed parenting classes, but had not been participating in counseling; she had visited D.T. and W.T. regularly. According to her caseworker, Amanda was not in compliance with the case plan or court orders at that time, and she now recommended termination of Amanda’s parental rights.
Amanda testified that she bought a trailer and a car with part of her $10,000 settlement from the automobile accident. She explained that she had trouble participating in counseling because of a delay in her Medicaid approval and that she could not afford to pay for therapy herself because she had cardiology expenses. Amanda testified that she now had reliable transportation and that she had put in several job applications. She also stated that she had worked at Denny’s for a short time as a waitress, but could not continue because of her health problems. Amanda testified that she had gone back to school but that they had also sent her home because of her medical problems. She further testified that she would have enough money to get through the next eight months if she did not have to pay any medical bills.
At the final review hearing in October 2002, there was additional testimony that Amanda had missed a counseling appointment. Her caseworker recommended that Amanda’s parental rights be terminated based on the history of the case and the parents’ lack of compliance. She further testified that she had been to Amanda’s new home and that it was neat and clean. W.T.’s pediatrician testified that W.T. had been diagnosed as “failure to thrive” and had worsened since being in foster care. Amanda testified that she still did not have a job but that she was working with an agency that helps disabled persons to find jobs. According to Amanda, she had missed the counseling appointment because she thought they would be closed since it was a holiday. Amanda testified that she had not seen Andrew, except at the DHS office, and that she had rectified the situation for which her children were removed, primarily her relationship with Andrew and her housing and utility problems.
The termination hearing was held in November 2002. There was once again testimony about the conditions in Amanda’s home back in May when W.T. had been taken into DHS custody. An adoption specialist with DHS testified that there were available families willing to adopt D.T. and W.T. and that the likelihood of their adoption was very great. Amanda’s caseworker testified that she had been the caseworker since 1999, and that Amanda had been offered individual and family counseling, parenting classes, employment services, and home-based services. She testified that, to her knowledge, Amanda had not been to counseling. She also stated that Amanda was still looking for employment. She conceded that Amanda’s new home was suitable for children; however, she testified that she did not know if Amanda could maintain stability without assistance. The caseworker further testified that DHS had provided services for three years and that Amanda would comply, but then would “fall by the wayside.” She testified that it was troubling that Amanda has continued to maintain contact with Andrew.
Amanda testified that she had been employed at Waffle House for three days, although if that job interfered with her job-training program at Arkansas Rehabilitative Services, she would have to quit. She further testified that she had been to two counseling sessions with her new therapist and had undergone an anger-management assessment. She stated that she was now on bloodrpressure medication and could work. Amanda testified that her mobile- home lot rental was paid up for four months in advance and that she would be able to pay for her utilities and food due to her new job. Amanda stated that she had remedied most of her problems while continuing to work on the rest, and that the settlement money had helped her start over. She stated that Andrew was out of her life for good and that she was working hard to make sure that she did not make the same mistakes in the future.
Following the hearing, the trial court found clear and convincing evidence to terminate Amanda’s and Andrew’s parental rights. The court took judicial notice of the prior terminations with respect to Andrew’s three other children. The court also took into consideration Amanda’s psychological evaluation from May 2001, in which she was diagnosed as having an adjustment disorder, a personality disorder, and borderline intellectual functioning. The psychologist had at that time recommended that she receive counseling, anger management, and parenting classes, as well as find a job, before reunification should take place. However, the psychologist also stated that Amanda was in an “abusive relationship” with Andrew, and that he could not recommend returning D.T. to the home because it “will be filled with chaos, arguing, physical altercations, and inconsistent discipline.” The trial court also found that Amanda continued to associate with Andrew even after both children were placed into foster care and questioned her credibility, noting that she had spent all of her settlement money from the accident and “was again relying on the charity of others to pay her bills.” The court further stated that it would not give a lot of weight to “eleventh-hour improvements,” and that Amanda had not had a sufficient length of stability to indicate a reasonable likelihood that she would get D.T. and W.T. back in her home in the foreseeable future. The court found that it was in both children’s best interests to terminate Amanda’s parental rights because she was still an unfit mother and there was little likelihood that services to the family would result in successful reunification. This appeal ensued.
On appeal, Amanda argues that the trial court erred in terminating her parental rights against the weight of the evidence presented at trial. Amanda contends that the trial court erred because she had complied with the majority of the court’s orders and was addressing her employment situation at the time of the termination hearing. She asserts that the trial court should have allowed her more time to continue with reunification efforts and to prove that the changes she had made were permanent.
The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A trial court’s order terminating parental rights must be based upon findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002); Ullom v. Arkansas Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999). Clear and convincing evidence is defined as that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Ullom, supra. On appeal, the appellate court will not reverse the trial court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Brewer v. Arkansas Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). Also, this court defers to the trial court’s evaluation of the credibility of witnesses. Ullom, supra.
Amanda’s parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), which states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341 (b)(3)(B). The applicable grounds relied upon by the trial court in this case are:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3) Have subjected the child to aggravated circumstances.
According to Ark. Code Ann. § 9-27-303(6) (A) (R.epl. 2002), “aggravated circumstances” means that a child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. In this case, the trial court found that there was little likelihood that services to the family would result in successful reunification of Amanda and either D.T. or W.T., as well as finding that her parental rights as to D.T. should be terminated under section 9-27-341 (b)(3)(B)(i)(a).
Amanda first came to the attention of DHS during her marriage to Andrew Trout. Her son D.T.’s placement in DHS custody initially arose as a result of an altercation between Amanda and Andrew in March 2001, and W.T., born in September 2001, was taken into custody in May 2002 based upon the conditions in Amanda’s home on a visit, and also because it was suspected that Amanda had allowed Andrew to be around the children. Although Amanda had made substantial improvements prior to the time of the termination hearing in November 2002, the trial court stated that it was not required to consider “eleventh-hour” improvements. At the time of the termination hearing, D.T. had been in DHS custody for approximately nineteen months and W.T. approximately five months. Although reunification with D.T. had been recommended by DHS at both the January and March 2002 review hearings, DHS’s recommendation changed to termination at the August 2002 permanency planning hearing, based substantially on its prior involvement with Amanda during the pendency of the case, involving Andrew’s children, the visit to Amanda’s home in May, and reports by D.T.’s daycare workers.
'We do not agree that the evidence in this case shows only “eleventh-hour” improvements by Amanda. Amanda’s older child, D.T., came into DHS custody during the spring of 2001 when Amanda was in the midst of what the psychologist described as an abusive relationship and when she was apparently well into a pregnancy with her youngest child, W.T. Her testimony about significant ongoing medical problems was not contradicted. In the course of less than a year, Amanda completed parenting classes, began rehabilitative services, obtained an appropriate home and transportation, addressed her medical problems, and obtained employment, and commenced counseling. Amanda did experience a setback in her progress in May 2002, based on a single visit to her home and on reports by daycare workers that D.T. returned from visits dirty and with skinned knees. However, her home was otherwise described very favorably throughout the duration of this case, including subsequent to the May 2002 incident. Moreover, DHS witnesses testified that they had no knowledge of Andrew’s presence in Amanda’s home after August 2001. Amanda was never ordered to not have contact with Andrew in any event. While the trial court’s comments suggest that Amanda had squandered the funds received from the accident settlement, she in fact acquired a home, automobile, and paid her lot rental months in advance in the effort to achieve stability.
The trial court characterized Amanda’s progress as “eleventh-hour” improvements that he was not required to consider, apparently in reference to Ark. Code Ann. § 9-27-338(9)(4)(B)(iii) (Repl. 2002), which provides:
A parent’s resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency hearing are insufficient grounds for retaining reunification as the permanency plan.
This provision pertains to the permanency planning hearing, which occurred back in December 2001, after which reunification was and continued to be the goal in this case until the May 2002 hearing, a proceeding from which Amanda was never allowed to recover. Moreover, the evidence reflects continuous and steady progress by Amanda in addressing her problems. Given the foregoing, we cannot conclude that the trial court’s decision to terminate her parental rights based on her failure to remedy the conditions causing removal is supported by clear and convincing evidence. Since the trial court’s finding of aggravated circumstances was likewise predicated solely upon a finding of little likelihood that services would result in successful reunification, this ground must also fail. Consequently, we need not address Amanda’s second argument that the trial court erred in terminating her parental rights as to W.T. because the child had not been out of the home for a period of one year.
Since we are not privy to what has occurred since the last hearing date in November 2002, we express no opinion as to whether or when custody should be returned to Amanda. In fact, the correct outcome of this litigation may still involve the termination of her parental rights; however, any such determination must be based upon clear and convincing evidence that a statutory requirement for termination has been met. We leave that decision to the trial court upon remand of this case.
Reversed and remanded.
Hart, Robbins, and Vaught, JJ., agree.
Pittman and Bird, JJ., dissent. | [
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Sam Bird, Judge.
Wade Matthew Ceola brings this appeal contending that the court abused its discretion by following the child-support guidelines and ordering him to pay a percentage of his salary as child support. Ceola’s income exceeds the amount of income shown on the family-support chart, and, pursuant to In Re: Administrative Order No. 10, Arkansas Child Support Guidelines, 347 Ark. 1064 (2002), he was ordered to pay 15 percent of his monthly income in child support. Ceola contends that the child’s mother, appellee Ashley Burnham, is able to adequately support their child and provide for all of the child’s reasonable needs; therefore, Ceola contends that the court abused its discretion in not deviating from the family-support guidelines and in not ordering him to,pay less than 15 percent of his monthly income in child support. We disagree, and we affirm.
Burnham and Ceola were divorced in 1999, at which time both were in their residencies at the University of Arkansas for Medical Sciences. Burnham was awarded custody of the parties’ minor child, Jacob, and Ceola was awarded visitation. At the time of the divorce, Ceola was ordered to pay $390.00 per month based upon his take-home pay at that time. Following the parties’ divorce and at the conclusion of his residency, Ceola moved to Springfield, Missouri, to practice as a neurosurgeon. At the conclusion of her residency, Burnham moved to Russellville, where she is a radiologist.
Burnham filed a petition seeking an increase in child support. Ceola conceded that an increase was in order, but requested that the court deviate from the support guidelines. A hearing was held in January 2003 involving the issues of visitation and child support.
Ceola testified that in 2002, he earned $400,000, and he stated that he expected to earn more in the future. He also testified that he had remarried. Kevin Moore, a certified public accountant, testified that based upon financial statements that he had been given, Ceola’s net income after taxes was $225,248.00. Ceola testified that he had established a trust fund for Jacob and was in the process of establishing a fund for Jacob’s education expenses. He stated that he would like to put some of the money that he pays in child support into a trust fund managed by him rather than Burnham.
Ashley Burnham testified that her annual salary is $320,000. She also stated that she makes sufficient money on her own to support Jacob. She stated that she has no intention of using the money she receives as child support for her own support. She stated that all of the money she receives for child support will be spent on their child or placed into a trust fund. She stated that if she saved all of the child support paid by Ceola in a trust fund, the sum would amount to $390,000 by the time Jacob turned eighteen. She testified that the divorce decree stated that she and Ceola would each be responsible for one half of the expenses of sending Jacob to college.
The court found that no deviation from the support guidelines was necessary and ordered Ceola to pay 15 percent of his net income as child support, which amounted to $2,650.98 a month. The court wrote that Ceola “should provide a standard of living for the minor child which is consistent with his own standard of living.” Based upon Ceola’s affidavit of financial means, the court found that he enjoys a “very high standard of living.” The court also considered Ceola’s pay in comparison to Burnham’s pay and found that Burnham’s weekly take-home pay represents seventy percent of Ceola’s weekly pay. It found that although Ceola had established an educational trust for the minor child, that act does not diminish the fact that considerable expenses are being incurred by Burnham to provide the minor child with a good standard of living. In addition, the court found that there had been no evidence that the child support is not being used by Burnham for the benefit of the child. The court wrote, “The child should not be penalized because the [appellee] has sought to prepare in advance for his education by using her own funds to provide for his housing, clothing, food, entertainment, medical and transportation needs.” The court noted that appellee incurred considerable expenses each month in providing the minor child with a good standard of living.
Ceola brings this appeal contending that the court should have deviated from the support chart. He states that he should not have to pay $2,650.98 a month in child support because the child is being well provided for. He argues that because Burnham testified that she did not intend to use the child support for monthly expenses associated with supporting Jacob, then Ceola should not be forced to contribute to his support in the amount of $2,650.98. He argues that by saving the money in an educational IRA, Burnham will not have to pay for one half of the college expenses for Jacob as required by the divorce decree. He asks this court to limit his child-support obligation to the actual amount needed for the child’s monthly expenses, which he alleges is $1,700.
The amount of child support lies within the discretion of the court and the court’s findings will not be disturbed on appeal, absent a showing of an abuse of discretion. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). A trial judge may deviate from the chart amount if it exceeds or fails to meet the needs of the children. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). The Legislature has provided that a family-support chart is the appropriate method for determining the amount of support for children by their noncustodial parent. Arkansas Code Annotated section 9-12-312 (Repl. 2002) states:
In determining a reasonable amount of support 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. •
The courts begin with a presumption that the chart amount is reasonable. Smith v. Smith, supra. Reference to the chart is required, and the chart establishes a rebuttable presumption of the appropriate amount that can only be modified on the basis of written findings stating why the chart amount is unjust or inappropriate. Smith v. Smith, supra. Because the child-support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by their drafters. Williams v. Williams, supra. The court may grant more or less support if the evidence shows that the needs of the children require a different level of support. See In Re: Administrative Order No. 10, Arkansas Child Support Guidelines, supra.
Section V of In Re: Administrative Order No. 10, Arkansas Child Support Guidelines, supra, sets forth the following factors to be considered when deviating from the amount set by the chart: food, shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child care (including day care or other expenses for supervision of children necessary for the custodial parent to work), accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source. The guidelines, then list what are called additional factors. They are: the procurement and maintenance of life insurance, health insurance, dental insurance for the children’s benefit; the provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children; the creation or maintenance of a trust fund for the children; the provision or payment of special education needs or expenses of the child; the provision or payment of day care for a child; the extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; the support required and given by a payor for dependent children, even in the absence of a court order; and where the amount of child support indicated by the chart is less than the normal costs of child care. The Family Support Chart is revised every four years to ensure that the support amounts are appropriate for child-support awards. See Smith v. Smith, supra.
In this case, the court made substantial findings that a deviation from the chart was not required. The court stated that Jacob should be supported in a lifestyle similar to the one Ceola has established for himself. He also stated that Jacob should not be punished because Burnham has sought in advance to prepare for his college education. In addition, Burnham’s testimony was that she intended to save most of the money, but that she would also spend it on other necessary expenses, such as a car for Jacob when he turns eighteen. One of the factors the court may consider in determining whether or not to deviate from the guidelines is the creation or maintenance of a trust fund for the child. In this case, appellee stated that if she did not spend the money immediately on Jacob, she would not spend it on herself, but would invest it in a trust fund.
The court also considered the pay of both of the parents and found that Burnham made seventy percent of the pay of Ceola. The court found Burnham’s monthly expenses total $5,109.73 for housing, gas, electricity, water, telephone, food, clothing, laundry, child care and medical expenses. Her monthly costs associated with transportation are $1,356.65. The court stated that in light of the expenses associated with Burnham’s expenditures in maintaining a good standard of living, $2,650.98 per month in child support is neither unjust nor inappropriate.
The court found that Ceola’s monthly income amounted to $17,659.65. His expenditures included a $3,043.45 monthly.house payment, and a monthly car payment of $2,524.76. His monthly expenditures include $904.51 on clothing, $25.00 on meals outside the home, $1,304.35 on furniture, $187.08 for lawn and pool care, and $301.50 per month for entertainment. He also spends $207.46 per month on a video monitor for DVD movies and $10.52 for satellite radio. Under the circumstances, we cannot say that the judge abused his discretion in not deviating from the child-support guidelines. See Williams v. Williams, supra.
Affirmed.
Stroud, C.J., and Pittman, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
This appeal arises from the decision of the circuit court affirming an administrative decision by appellee Arkansas State Highway and Transportation Department that denied a request made by appellant Lamar Outdoor Advertising, Inc., to erect a billboard on Highway 67/167 across from McCain Mall in North Little Rock. Lamar raises two points on appeal. We affirm.
Lamar applied to the Department for a permit to erect a billboard on Highway 67/167 across from McCain Mall. The Department denied the application, and Lamar requested an administrative hearing. The facts at the hearing were largely undisputed. The billboard would be located on property zoned “C3” by the City of North Little Rock as part of a zoning plan that the City considers comprehensive. The parties stipulated that the Department has not certified the City’s plan as comprehensive under the Department’s regulations. Under the City’s zoning ordinance, billboards are not allowed in “C3” areas. On February 28, 2000, the City enacted Ordinance 7274 granting a special-use permit for Lamar to erect a billboard at the McCain location and on Interstate 40, in exchange for Lamar’s removing another billboard on Highway 107/John F. Kennedy Boulevard in the City. The preamble to the ordinance states that “application was duly made by ... agent of the owner of the land ... seeking a special use of said land for the purpose of erecting a billboard.” Ordinance 7274 did not change the zoning classification; the property remained zoned “C3.” The special-use permit granted by Ordinance 7274 was conditioned upon Lamar’s removing the other billboard from Highway 107.
At the hearing, the parties stipulated that the testimony of Mayor Patrick Hays and Robert Voyles, the City’s Director of Planning, taken in another hearing for issuance of a permit for a billboard in another location, could be considered in determining whether the City’s zoning action was taken primarily or solely for the purpose of erecting a billboard. Mayor Hays testified that the City’s purpose in enacting the ordinance was to remove another billboard on John F. Kennedy Boulevard. Director Voyles testified that billboards are not allowed in “C3” zones, and that the City enacted the special-use permit for the purpose of erecting this billboard in an area that otherwise would not allow billboards. Voyles also testified that, if the area had been zoned “C4,” Lamar would not have had to seek a special-use permit to erect a billboard.
Based on the stipulated facts set out above, the hearing officer found that the City’s zoning action was solely for the purpose of allowing the erection of a billboard and therefore in violation of the federal and state regulations. The hearing officer upheld the Department’s denial of the permit.
Lamar filed a petition and an amended petition for judicial review of the hearing officer’s decision. The circuit court affirmed the hearing officer’s decision based upon the record before the hearing officer. The circuit court also denied Lamar’s request to conduct a de novo hearing, as provided by Ark. Code Ann. § 27-74-203(c) (Supp. 2003). This appeal followed.
Appellant raises two arguments on appeal: that the Department wrongfully applied Ark. Code Ann. § 27-74-204(a)(l) (1994) in denying its application for a permit and that the trial court erred in not conducting a de novo hearing under Ark. Code Ann. § 27-74-203 (c).
Our review is directed not toward the circuit court but toward the decision of the agency. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra, Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
For its first point, Lamar argues that the Department misapplied Ark. Code Ann. § 27-74-204(a)(l) (1994) in denying its application for a permit. Section 27-74-204 states in part:
(a) [N]othing contained in this chapter shall prohibit the erection and maintenance of outdoor advertising signs, displays, and devices consistent with customary use within six hundred sixty feet (660') of the nearest edge of the right-of-way of interstate, primary, and other state highways designated by the State Highway Commission:
(1) Within those areas which are zoned industrial or commercial under authority of the laws of this state....
Section 27-74-204 is a part of the Arkansas Highway Beautification Act, codified at Ark. Code Ann. §§ 27-74-101 through 27-74-502 (1994 & Supp. 2003), which is designed to accomplish the purposes set forth in the Federal Highway Beautification Act (FHBA) and to bring the state in compliance with federal law. Arkansas State Highway Comm’n v. Roark, 309 Ark. 265, 828 S.W.2d 843 (1992); Yarbrough v. Arkansas State Highway Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976). The FHBA provides for control of the installation and maintenance of outdoor advertising signs in areas adjacent to the interstate and primary highway systems. 23 U.S.C. § 131(a) (2000). The purposes of the FHBA are to protect the public investment in highways, to promote the safety and recreational value of public travel, and to preserve natural beauty. Id; Files v. Arkansas State Highway & Transp. Dep’t, 325 Ark. 291, 925 S.W.d 404 (1996).
Lamar argues that, because the City has zoned the area “commercial,” it is entitled to erect a billboard without further inquiry by the Department. However, the supreme court in Files, supra, rejected such an absolutist approach and instead looked to the regulations, both state and federal, which were adopted to implement the Acts, in order to resolve the appeal in that case. Lamar attempts to distinguish Files on the basis that Files involved a 58.51-acre tract that was annexed and zoned as “commercial” for the purpose of erecting a billboard although the rest of the tract remained undeveloped, while the present case involves the grant of a special-use permit in a commercial area in which billboards would not otherwise be permitted. This is a distinction without a difference because, in both cases, the issue before the Department was whether the zoning action was taken in order to erect a billboard.
Federal regulations found at 23 CFR § 750.708(b) (2003) provide:
State and local zoning actions must be taken pursuant to the State’s zoning enabling statute or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes.
(Emphasis added.) Similarly, the Department has issued regulations implementing the federal and state laws on outdoor advertising. Under the Department’s regulations, “comprehensive zoning” means
a zoning plan established by State or local law, regulation or ordinance, which includes regulations consistent with customary use and the provisions of the agreement controlling the erection and maintenance of signs in the zoned areas. Except that, any area determined by the Department to be included in the area of such a zoning plan solely for the purpose of allowing outdoor advertising does not come within this definition.
Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, section 1, ¶ J. (Emphasis added.) As one can see, the two regulations use different standards for determining the purpose of the zoning action. The federal regulation uses the term “primarily,” while the Department’s regulation uses the term “solely.” Lamar seizes upon this difference in terminology to argue that the purpose of the City’s granting the special-use permit was not “solely” for the purpose of erecting the billboard because it was conditioned upon the removal of a billboard at another location. However, the supreme court in Piles construed the Department’s regulations in harmony with the corresponding federal regulations so as to allow the Department to deny a permit where a zoning action was taken primarily for the purpose of erecting a billboard. As noted earlier, the parties stipulated that the Department has not certified the City’s zoning plan as “comprehensive.” The language of the ordinance granting the special-use permit provides that the purpose of the ordinance was to allow the erection of a billboard, indicating that the special-use permit was primarily for the purpose of erecting a billboard and bringing the case within the rule in Files, giving the Department discretion to deny a permit.
Because this is an appeal from an administrative agency under the Administrative Procedures Act, we affirm if there is substantial evidence to support the department’s decision. McQuay, supra. Director Voyles’s testimony that the special-use permit with conditions was for the purpose of erecting this billboard and the language of the ordinance itself constitute substantial evidence. We therefore affirm on this point.
In its second point, Lamar argues that the trial court erred in not conducting a de novo hearing under Ark. Code Ann. § 27-74-203(c), which provides in part:
Any person whose business or property has been injured by a final adverse decision from the commission shall be entitled to a judicial hearing de novo ... in the Pulaski County Circuit Court if the interests affected by the decision of the commission are constitutionally or statutorily preserved, or preserved by private agreement, so that their enforcement is a matter of right.
Lamar argues that its right to erect a billboard in commercial areas was statutorily preserved by Ark. Code Ann. § 27-74-204 and, therefore, it was entitled to a de novo hearing in circuit court. However, Lamar’s rights are not constitutionally or statutorily preserved. First, section 27-74-203(a) provides that the erection of billboards within 660 feet of a highway shall be regulated and that no billboard shall be erected except in accordance with the Department’s regulations. Second, in Files, supra, the supreme court rejected an absolutist approach to section 27-74-204(a)(l) and held that the Department could appropriately examine the propriety of zoning ordinances when deciding whether to issue a permit for a billboard.
As the Files court stated:
Some deference must be given to the Department’s interpretation of state and federal regulations in this area. The Department’s interpretation of its authority enables it to review limited commercial zoning decisions relating to outdoor advertising to determine validity. This fosters the purposes of the Highway Beautification Act and assures compliance with federal law. The General Assembly certainly contemplated that the Department would regulate outdoor advertising in accordance with state and federal law.
Id. at 298, 925 S.W.2d at 409. This deference means that Lamar’s efforts to obtain a permit hinges on executive or legislative discretion. As such, de novo review under section 27-74-203 (c) was not appropriate because of the separation-of-powers doctrine. Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000); Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980). Lamar makes much of the fact that section 27-74-203(c) was enacted in response to the Tomerlin decision. However, that section repeated the holding of Tomerlin but did not remove the Department’s discretion to review zoning decisions when considering applications for permits for billboards.
Affirmed.
Gladwin and Crabtree, JJ., agree.
Appellant filed a motion seeking to transfer this case and three companion cases to the supreme court under Supreme Court Rule l-2(a), (b) on May 30,2003, on the basis that the cases involve the construction and interpretation of the separation of powers provisions of Ark. Const, art. 4, §§ 1,2 and Ark. Code Ann. §§ 27-74-203,204 (1994 & Supp. 2003). The supreme court denied the motion on September 4,2003. | [
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Andree Layton Roaf, Judge.
Gregory Fisher was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver by a jury and sentenced to forty years and fifteen years, respectively, to be served consecutively. Fisher was also fined $150,000. Fisher appeals both convictions, arguing (1) that the trial court erred in allowing extraneous material, an atlas that was not introduced at trial to be presented to the jury during deliberations, (2) that the sentence imposed was excessive, and the terms for repayment of his fine unreasonable, and (3) that there was insufficient evidence to support the verdict. Fisher’s arguments regarding the sufficiency of the evidence and the length and terms of his sentence are not preserved for appeal, and he has failed to demonstrate prejudice in the presentation to the jury of the extraneous, non-evidentiary material. We affirm.
Because Fisher’s sufficiency challenge is not preserved for appeal, it is not necessary to recite at length the testimony and evidence presented at his trial. Fisher was the passenger in a commercial truck operated by co-defendant Kevin McKenzie that was stopped at a truck weigh station in Alma, Arkansas. An officer at the weigh station in Arkansas noted that the truck’s refrigerated unit was operating at an unusually high temperature, and a search of the truck revealed pallets of produce and several backpacks containing approximately 300 pounds of marijuana and two kilos of cocaine. The truck was en route from California with a load of refrigerated produce. McKenzie testified that he was originally from Jamaica and that he had worked as a driver for the owner of the truck for several months. McKenzie stated that on this trip he left from Anaheim and made stops at three other cities in California; Riverside, Oxnard, and Fowler, to pick up produce to be delivered to Maryland. McKenzie stated that he did not have access to the refrigerated unit, and received a key to the refrigerated unit only at the last pickup. He testified that Fisher rode along with him because he had not been in the country very long and wanted to “see what California is like.” The evidence with regard to Fisher’s involvement came through his testimony and the testimony of McKenzie and the officers involved, and reflects that he was related to the owner of the truck, was also from Jamaica, claimed to have come to California “just to see California,” and had two IDs when arrested, in the names of Gregory Anton Fisher and Patrick Henry. Fisher denied that his name was Gregory Fisher during his testimony, and claimed that was his cousin’s name and ID.
The trial concluded, and at 10:15 a.m. the jury retired to deliberate. At 1:20 p.m., the jury returned to the courtroom with two questions. After a sidebar with counsel for Fisher and the State in which defense counsel objected to the court answering the questions posed by the jury, the trial judge instructed the jury to base its decision on the evidence presented. At 3:25 p.m. the jury again returned to the courtroom. This time the foreperson requested a map of California. Counsel for the defendant again objected, arguing that a map was not admitted into evidence, and the court should not furnish one. The trial judge asked the foreman why the jury requested a map. The foreman explained that the jury wanted to see the proximity of the three pickup cities to each other. The trial court responded that the jury’s request was a simple one, overruled defense counsel’s objection, and permitted the jury to view an atlas. The jury returned with a guilty verdict one hour and twenty-two minutes later.
Fisher was sentenced to forty years’ imprisonment and a $150,000 fine for the possession of cocaine conviction. He was sentenced to fifteen years’ imprisonment for the possession of marijuana conviction. The jury recommended that the sentences ran consecutively, and the judge, stating that he was following the recommendation of the jury, ordered Fisher to serve the sentences consecutively. The court also ordered Fisher to begin paying the $150,000 fine at a rate of $100 per month, beginning sixty days following his release from the Arkansas Department of Correction.
We first note that Fisher’s challenges to the sufficiency of the evidence and to his sentence are not preserved for appellate review. Fisher relies on the “plain error doctrine.” However, as the State points out, Arkansas only recognizes the plain error doctrine in four limited circumstances, see Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), none of which apply to this case.
Fisher challenges the sufficiency of the evidence. The abstract and record show that Fisher did not move for a directed verdict during the trial. Arkansas Rules of Criminal Procedure 33.1 governs the procedure for challenging the sufficiency of the evidence at a jury trial and provides that a motion for directed verdict must be made at the close of the State’s case, and renewed at the close of all of the evidence. Fisher’s arguments are not preserved for appellate review because he failed to make a directed verdict motion at the close of the State’s evidence and again at the close of all of the evidence as required by Ark. R. Crim. P. 33.1. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003).
Fisher also challenges his sentence, arguing that it is excessive. Fisher also argues that it was unreasonable for the trial court to order him to commence payment of $100 per month toward his fine just sixty days after his release from a lengthy prison sentence. He did not object to either the sentence or terms of payment of the fine below and this court does n'ot consider arguments raised for the first time on appeal. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997).
Fisher’s third argument is that the trial court erred in allowing a document that was neither introduced at trial nor entered by the court to be presented to the jury during deliberations. He contends that to allow the jury to view any document, regardless of what it is, that was not in evidence is a clear violation of the rules of evidence. He argues that in allowing the jury access to extraneous information at a very crucial time during the trial, when the jury had been in deliberation for several hours, violated his right to a fair trial.
Arkansas Code Annotated section 16-89-125(e) (1987) provides that trial courts must call juries into open court in order to communicate with them when they have a query during deliberations. It is well-settled that noncompliance with this statutory provision gives rise to a presumption of prejudice, and the State has the burden of overcoming the presumption. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995); Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986). The failure of a defendant and his counsel to be present when a substantial step occurs, such as the judge’s answering questions of the jury, violates the defendant’s fundamental right to be present at any stage of the criminal proceeding that is critical to the outcome. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Here, however, the procedural requirements of the statute were followed, and Fisher’s argument goes to the propriety of the trial court’s decision to allow the jury to have information not introduced into evidence during the trial.
We have found no Arkansas case addressing the issue of whether, when the statutory procedure is followed, it is error to allow a jury to have extraneous new information during jury deliberations in a criminal trial. In Dickerson Construction Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979), a bailiff provided the jury with one of two charts used by appellee to display damage computations, without the trial court or the appellant’s knowledge. The jury returned a verdict for appellee ten minutes later, and appellant moved for new trial after learning what happened. The supreme court held that the trial court abused its discretion in denying the motion, and reversed and remanded for new trial because the statutory procedure was not followed, stating:
The procedure to be followed when a jury, which has retired for deliberation, requests additional information or clarification of some point is established by Ark. Stat. Ann. 27-1734 (R.epl. 1962). The statute reads:
Further instruction. After the jury has retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of or after notice to the parties or their counsel.
An identical procedure to be followed in criminal trials has been held to be mandatory. The considerations in those cases are just as relevant in this case. The appellant’s attorneys had no opportunity to object to the jury receiving a chart which, in essence, summarized the appellee’s closing argument relating to damages. There was no opportunity for the appellant’s attorneys to request that an instruction be given which would limit the effect of the chart upon the jury’s deliberation or remind the jury that the chart was not evidence. The fact that the chart had not been admitted into evidence is itself of no small significance. Ark. Stat. Ann. § 43-2138 (Repl. 1977) provides: “(u)pon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.” We decline, however, to hold that allowing the jury to have access to something which has not been admitted into evidence will necessarily, without more, constitute an abuse of discretion. Other jurisdictions prohibit the jury access to anything which has not been introduced into evidence. Although the amount of time spent in deliberations is not in and of itself indicative ofpossible prejudice or lack of fair trial, the fact that the jury returned its verdict only ten minutes after receiving the chart, is a factor to consider in a determination of whether the appellant’s cause may have been prejudiced. (Citations omitted.) (Emphasis added.)
Id. at 356, 584 S.W.2d at 42.
In Williams v. First Security Bank of Searcy, 293 Ark. 388, 738 S.W.2d 99 (1987), the trial court, over appellant’s objection, allowed the jury to have a tablet on which appellee’s expert wrote certain figures during his testimony. In holding that no prejudice resulted and affirming the judgment, the court stated:
While we have made a distinction between evidence admitted and not admitted which is taken into deliberation by the jury, that is not the determining factor. Rather, if the item is an accurate reflection of the testimony that will b e a legitimate memory aid to the j ury and affords no prejudice to the opposing party, we have found it within the discretion of the trial court to allow it.
* * *
In determining that no prejudice resulted from this incident, we note that the matter dealt with an issue which was not in testimonial dispute, as with the issue of liability for example. Here there was no contention that the figures given to the jury were not exactly what the witness had testified to, nor had the appellant even objected to or contested the accuracy of any of the figures when they were presented by the witness. The figures were a legitimate memory aid for the jury and there was no abuse of discretion by the court in allowing the jury to review the figures. (Citations omitted.)
Id. at 393, 394, 738 S.W.2d at 102, 102-103.
Thus, our supreme court has held that if the statutory procedure is followed, it is within the discretion of the trial court to allow material not admitted into evidence, if the item is an accurate reflection of testimony that will serve as a legitimate memory aid for the jury. Williams, supra. The civil and criminal statutory procedures are identical, as noted by the supreme court in Dozier. Consequently, it was not error as a matter of law for the trial court to allow the jury to have the atlas during deliberation in Fisher’s trial. However, there was no testimony or evidence presented concerning the proximity of the three California cities in question, and the jury’s request for the map was thus a request for extraneous information not introduced during the trial. It was neither a legitimate memory aid nor an aid, such as a magnifying lens or calculator, to examine or assemble evidence presented at trial. While the supreme court has held that there is a presumption of prejudice when the statutory procedure for such jury requests is not followed, Atkinson, supra, the court declined to hold that allowing the jury to have access to material not introduced into evidence will necessarily, without more, constitute an abuse of discretion. Dozier, supra. Here, the trial court complied with the statutory procedure and prejudice is not presumed, even if the court abused its discretion in allowing the jury to have the extraneous information. In this case, unlike in Dozier, where the jury deliberated only ten minutes after receiving a chart it requested, Fisher’s jury continued to deliberate at some length after receiving the atlas before reaching a verdict. Fisher contends only that he suffered prejudice because the extraneous information came at a “crucial time” in his trial. However, there was no inquiry to see how or even whether the map was used by the jury, and we cannot see, nor does Fisher say, given the evidence presented in this case, how he may have suffered prejudice by allowing the jury to have it.
Affirmed.
Gladwin and Griffen, JJ., agree.
Kevin McKenzie was also charged and tried in the same trial for possession of cocaine and marijuana with intent to deliver; however, the jury was unable to reach a verdict as to McKenzie.
A number of other jurisdictions have addressed the issue of whether it is error to allow the jury to use material not admitted into evidence. See State v. Lihosit, 131 N.M. 426, 38 P.3d 194 (2002) (holding that the trial court did not abuse its discretion by granting jury’s request for calculator to use during deliberations in complicated embezzlement prosecution involving multiple pieces of evidence and where calculator was merely a substitute for pencil and paper and not used to perform independent tests or create evidence); State v. McCarty, 271 Kan. 510, 23 P.3d 829 (2001) (holding that it was an abuse of discretion, but not prejudicial to allow the jury to use a piece of string not introduced as evidence during deliberation to examine the trajectory of bullets); Worcester v. State, 30 P.3d 47, 2001 Wy. 82 (2001) (holding that trial court should not have allowed jury to have demonstrative evidence of watercraft models during deliberation when models were not admitted into evidence); Com v. Lilliock, 740 A. 2d 237, 1999 PA Super. 244 (1999) (holding that jury was properly allowed to use magnifying glass not admitted into evidence to examine photographic evidence because use of the magnifying lens was merely to view the evidence presented during trial); State v. Pichay, 72 Haw. 475, 823 P.2d 152 (1992) (holding that allowing jury permission to use two dolls and a calculator brought in by a juror, over objections by the State and the defense, was egregious error for which the presumption of prejudice was not rebutted by the State); Grooms v. Com., 756 S.W.2d 131 (Ky. 1988) (holding that jury should not be allowed to take Bibles into jury room with them). | [
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JOHN B. ROBBINS, Judge.
On March 6, 1995, the Sharp County Chancery Court entered a paternity order establishing custody and setting child support pursuant to an agreement between appellant Terri Scott Shroyer (now Corey) and appellee Paul David Kauffman. In the order, Ms. Corey was given custody of the parties’ minor child, and Mr. Kauffman was ordered to pay the greater of $300.00 or thirteen percent of his net income as weekly child support. On June 26, 1995, Mr. Kauffman filed a petition requesting a change in custody or, alternatively, a reduction in child support. The chancery court entered an order of dismissal on January 26, 1998, for want of prosecution.
On November 5, 1999, Ms. Corey filed a “petition for a show cause hearing and other equitable relief,” and in her petition prayed for $40,685.00 in delinquent child support. In his answer, Mr. Kauffinan asserted that “the parties entered into an agreement in March 1996, whereby [appellant] would not pursue custody of the minor child of the parties, visitation would be more liberal, and child support would be reduced to the sum of $150.00 per week.” After a hearing, the chancery court entered an order stating, in pertinent part:
3. The Order setting the amount of child support at $300.00 per week remained effective until March 18, 1996, whereupon the parties agreed that child support should be reduced to the amount of $150.00 per week. . . .
4. An Order was signed by the Chancery Judge reducing the amount of child support to $150.00 per week. The Plaintiff decided that she was not in agreement with the Order reducing the child support amount and the Chancery Clerk was instructed by the Chancery Judge that the Order should not be entered into the record.
5. The Defendant was without notice that the agreement had been canceled by the Plaintiff, and relied on the agreement until served with notice that an Agreed Order had not been entered, with said notice being served upon Defendant by Plaintiffs attorney on November 19, 1999.
6. The amount of child support owed to Plaintiff for the support of the minor child should be as set forth in the Order entered March 2, 1995 [filed March 6, 1995] except for the period from March 18, 1996 until November 19, 1999, which is the period excluded by the agreement. Child support due for the period of the agreement should have been paid at the rate of $150.00 per week.
Pursuant to the above findings, the chancery court calculated the child-support arrearage to be only $16,195.00, and ordered Mr. Kauffman to pay that amount and to continue making child-support installments at a rate of $300.00 per week.
Ms. Corey now appeals from the order of the chancery court, arguing that the chancery court erred by retroactively reducing child support for the period from March 18, 1996, through November 19, 1999. Ms. Corey asserts that the original order setting child support at $300.00 per week remained in effect because there was no agreement as to reduction and no order was entered reducing support.
We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Stewart v. Stewart, 72 Ark. App. 405, 37 S.W.3d 667 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000).
Dick Jarboe testified at the hearing. He stated that he is an attorney and represented Ms. Corey in 1996. Mr. Jarboe indicated that during a deposition in February 1996 a tentative settlement agreement was reached between the parties. Thereafter, opposing counsel sent Mr. Jarboe a copy of the proposed order, and he submitted it to Ms. Corey for approval. Ms. Corey never approved the order, so Mr. Jarboe also refused to approve it. Mr. Jarboe stated that after July 1996, he expressed to opposing counsel that Ms. Corey had not approved the order.
Tommy Estes, Sharp County Chancery Clerk, determined that, according to his records, the child-support arrearage in this case is $43,435.00. Mr. Estes indicated that in 1996 he received an order from Mr. Kauffman’s counsel that purported to reduce the child-support obligation to $150.00 per week, and that the order was signed by the chancery judge. However, prior to this time Mr. Estes had been contacted by Ms. Corey, who told him that she did not agree with the order and not to file it. Upon receiving the order, Mr. Estes called Mr. Kauffman’s counsel and informed her that there was an objection to the order and that he was not going to file it before consulting with the judge. On September 24, 1996, the judge instructed Mr. Estes to send the order back to Mr. Kauffman’s counsel, and while he did not send it back he called her that same day and gave notification that the order was not being filed pursuant to the judge’s direction. The order was never filed.
Ms. Corey testified on her own behalf, and asserted that she has not received child support on a consistent basis since entry of the original order. She acknowledged that during a deposition she agreed to give Mr. Kauffman increased visitation rights, but could not recall agreeing to a reduction in child support. She remembered receiving the order showing a reduction in support and refusing to approve it. Ms. Corey indicated that she assumed that the payments received from Mr. Kauffman represented $300.00 per week because most of them were amounts that were multiples of three hundred. On September 15, 1999, she received a $1200.00 check from Mr. Kauffman with the notation “from 8/15 to 9/15.” Ms. Corey maintained that she was not aware that Mr. Kauffman was claiming that there was an agreement to reduce child support to $150.00 per week until after she filed her petition requesting arrearages.
Mr. Kauffman testified that, during lunch break on the day of the deposition in February 1996, Ms. Corey told him that if he would drop his petition for changing custody, she would liberalize visitation and agree to a reduction in child support. After the agreement, visitation was liberalized and, according to Mr. Kauff-man, Ms. Corey visited him in March 1996 and showed him the proposed order. She allegedly told him “if it was okay” the chancery judge would sign it that day. He testified that his attorney never contacted him and informed him that nothing had been filed. Mr. Kauffman stated that he believed the order had been filed until being informed otherwise when Ms. Corey filed her petition for support arrearages in November 1999.
For reversal, Ms. Corey argues that the chancery court erred in reducing Mr. Kauffman’s child-support obligation to $150.00 from March 18, 1996, through November 19, 1999. She contends that, although there was evidence of some verbal agreement between the parties, the terms of the agreement remain unclear. While an order was reduced to writing, it is undisputed that neither Ms. Corey nor her counsel signed it, it was never filed of record, and Mr. Kauff-man’s attorney was made aware that the order was not filed. Ms. Corey submits that Mr. Kauffman is charged with the knowledge of his attorney and was thus on notice that the disputed order reducing child support was not entered. Ms. Corey asserts that Mr. Kauffman could not have detrimentally relied on the provisions of the disputed order because he was on notice that it was not filed, and further could not demonstrate reliance because he undisputedly failed to stay current on his payments even under his alleged misunderstanding that he pay only $150.00 per week.
Chancery courts are not supposed to recognize private agreements modifying the amount of child support because of the mandate of Ark. Code Ann. §§ 9-12-314(b) (Repl. 1998) and 9-14-234(b) (Repl. 1998), which provide:
(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court or the Arkansas child support clearinghouse shall be final judgment subject to writ of garnishment or execution as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order.
See Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993); Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). In Burnett v. Burnett, supra, the appellee was ordered to pay $140.00 in weekly child support, but later decided to reduce his payments due to a decrease in his earnings. The appellee testified that, although no order modifying support had been entered, the appellant had agreed to accept the reduced payments, and did so without complaint for a period of several months. The chancery court retroactively modified the appellee’s child-support obligation due to material changes, but the supreme court reversed, holding that the actions of the appellant did not justify the application of estoppel to prevent the collection of past-due child-support payments.
In the case at bar, Mr. Kauffman did not rely on decreased income as grounds to reduce his child-support obligation, but did allege that a verbal agreement was reached to reduce weekly child support to $150.00. However, his testimony was contradictory in that he stated that, after Ms. Corey showed him the proposed order, “I continued to pay two hundred dollars a week.” The payments made by Mr. Kauffman were so sporadic in frequency and amount that they provide no guidance as to what weekly amount he intended to pay. However, it is significant that in September 1999, a payment of $1200.00 was accompanied by a notation that it covered a one-month period, which indicates an acknowledgment that the prior order remained in effect.
Even if a verbal agreement reducing child support was made by the parties, it is undisputed that Mr. Kauffman’s attorney drafted and attempted to reduce the agreement to a written order, but none was ever entered because Ms. Corey refused to approve it. Mr. Kauffman testified that he was never informed by his counsel that the order had not been filed; however, on July 29, 1996, his counsel mailed a letter to the chancery judge acknowledging that the order had not been approved, and the letter reflects that a copy was sent to Mr. Kauffman. But even if Mr. Kauffman received no formal notice from his counsel, as he alleges, his counsel’s knowledge is imputed to him. See Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 73 (1959). It is not disputed that Mr. Kauff-man’s counsel knew that the proposed order was being contested and was not filed of record.
Nothwithstanding the clarity of the statutory language prohibiting retroactive modification of child support, we have recognized an exception to enforcement in the collection of child support arrearage. See Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991) (custodial parent had unclean hands because she interfered with visitation); Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993) (noncustodial parent resided with custodian and children after divorce and provided direct support to family); State Office of Child Supp. Enforcen’t v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998) (alleged that custodial parent was less than candid in identifying defendant as child’s father in paternity proceeding).
In the present case, however, while the trial court observed that appellee had relied on the agreement between March 18, 1996, and November 19, 1999, there was no specific finding of an equitable defense. Equitable promissory estoppel requires the innocent party to rely to his detriment on an oral agreement. See Taylor v. Eagle Ridge Developers, LLC, 71 Ark. App. 309, 29 S.W.3d 767 (2000). Even if appellee relied on the agreement, as found by the trial court, there is no evidence that he did so to his detriment. The consequence of his reliance was all to his benefit, without any corresponding detriment.
Under these facts, there is no equitable defense to the enforcement of Mr. Kauffman’s support obligation; therefore, the chancery court’s failure to enforce its original support order was clearly erroneous. We reverse and remand for the chancery court to calculate Mr. Kauffman’s arrearages pursuant to the provisions of the original order setting child support.
Reversed and remanded.
Baker and Roaf, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
The parties in this child-custody case were divorced in December 1999. They were awarded joint and shared custody of their two minor children, a four-year-old girl and a two-year-old boy. Neither party was ordered to pay child support. Appellee filed a petition for change of custody in August 2000. Appellant filed a counterclaim, also seeking sole custody of the children. After a hearing, the chancellor found that there had been a material change in circumstances and that it would be in the children’s best interest to award custody to the appellee. From that decision, comes this appeal.
For reversal, appellant contends that the chancellor erred in finding that there had been a material change of circumstances warranting a change of custody; that appellee was barred under the clean-hands doctrine from asserting that there had been a change of the custodial arrangement from “joint” custody to “split” custody because that change was solely the result of appellee’s improper conduct; and that the chancellor erred in basing his finding that it would be in the children’s best interest to award custody to the appellee solely on the fact that appellee was the first to quit living in a sexually illicit relationship. We affirm.
The principles governing the modification of custodial orders are well-settled and require no citation. The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Although the chancery court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof 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. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986).
The role of the appellate court in appeals from modification of custody orders is also well settled. We review chancery cases de novo on the record, but the chancellor’s findings will not be disturbed unless clearly against the preponderance of the evidence. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the chancellor. Because a chancellor charged with deciding a question of child custody must utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child’s best interest, there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as in those involving child custody. Our deference to the chancellor is correspondingly greater in such cases. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989).
The parties in the present case had a four-year-old girl and a two-year-old boy when they divorced in December 1999. The decree provided for joint and shared custody of the children. The parties resided in the same town, within a few blocks of one another, and this arrangement initially worked well. Appellee worked nights and appellant worked days. One party kept the children while the other party was at work, and they alternated custody on weekends.
Appellee later remarried and was assigned to a day shift. The original arrangement was no longer workable, so the parties arranged for custody of the children to alternate between them every week. This arrangement was not successful. The parties could not agree on a regular routine. Disputes over day-to-day custodial issues escalated from heated arguments to physical altercations between appellant and appellee’s new wife. Appellee filed a petition to change custody. After the petition was filed, custody of the children was split between the parties, with each party having custody of one child. Appellee testified that he did not trust the appellant to return the children following visitation; he stated that appellant threatened to withhold them from him. Consequently, although they were exchanged between the parents at intervals, the children were never together.
We first address appellant’s contention that the chancellor erred in finding that there had been a material change of circumstances warranting a change of custody. With reference to evidence of appellee’s remarriage and generally improved circumstances since the original custodial order was entered, appellant argues that a change of circumstances of the noncustodial parent is an insufficient basis to justify modification of a child-custody award. This question is academic. Appellee was not a noncustodial parent. He was, instead, a custodial parent by virtue of the order of joint and shared custody in the parties’ divorce decree.
Appellant also argues that we should reverse because appellee failed to enumerate specific instances of changed circumstances in his pleadings, and because the chancellor’s order failed to mention any specific change to support his finding of a material change in circumstances. We find no error on this point. There was no objection below to the lack of specificity of appellee’s pleadings, and when issues not raised in the pleadings are tried by the express or implied consent of the parties, Ark. R. Civ. P. 15(b) requires that the pleadings be treated as amended to conform to the proof. Here, appellant was also seeking sole custody of the children, and both parties put on extensive evidence to show that there was a material change of circumstances. Furthermore, in the absence of a request for specific findings under Ark. R. Civ. P. 52(b), the chancellor was not required to expressly detail the facts supporting his finding of a material change in circumstances, and our review is directed toward determining whether there was sufficient evidence from which the chancellor could have found such a change in circumstances. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).
There was unquestionably such evidence in the present case. Joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error where cooperation between the parents is lacking. See Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984). In the case at bar, it is undisputed that the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the children, and this constitutes a material change in circumstances affecting the children’s best interest. See Thompson, supra.
Appellant next asserts that it was solely the fault of appellee that the parties were unable to cooperate and exercise joint custody of the children, and contends that the appellee therefore was barred under the clean hands doctrine from relying on that fact. We do not agree.
The maxim, “He who comes into equity must come with clean hands,” bars relief to those guilty of improper conduct in the matter as to which they seek relief because equity will not intervene on behalf of a plaintiff whose conduct in connection with the same matter has been unconscientious or unjust. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). This maxim is not applied to favor a defendant, and has nothing to do with the rights or liabilities of the parties, but instead is invoked in the interest of the public on grounds of public policy and for the protection of the integrity of the court. Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991). Whether the parties are within the application of the maxim is primarily a question of fact. Id. In the present case, the evidence was in sharp dispute concerning which of the parties was primarily at fault for the breakdown of the joint custody arrangement, and we cannot say that the chancellor was required to find that appellee was the responsible party.
Finally, appellant contends that the chancellor erred in basing his finding that it would be in the children’s best interests to award custody to the appellee solely on the fact that appellee was the first to quit living in a sexually illicit relationship. The immediate answer to this argument is that the record demonstrates that this was not the sole factor relied upon by the chancellor, who also took note of appellee’s increased maturity, responsibility, and superior initiative on behalf of the children’s best interests. In any event, extramarital cohabitation in the presence of the children has never been condoned in Arkansas, is contrary to. the public policy of promoting a stable environment for children, and may of itself constitute a material change of circumstances warranting a change of custody. Hamilton v. Barrett, supra. It goes without saying that this is a significant factor in determining where the best interests of the children require them to be placed.
There was evidence that both parties in the present case engaged in extramarital cohabitation following their divorce. Appellee admitted that his fiancee lived with him briefly but stated that he came on his own to believe this was harmful to the children, and he and his fiancee were married soon thereafter. Appellant admitted that she cohabited with her boyfriend in the presence of the children for over ten months, that she had an illegitimate child by her boyfriend, and that she and her boyfriend were married at the courthouse the day before the custody hearing took place. She explained that, although she believed cohabitation in the presence of the children was harmful to them, she had simply been too busy to marry her boyfriend any sooner. On this record, we cannot say that the chancellor erred in considering appellee’s more timely and uncoerced self-correction to be indicative of superior maturity, initiative, and dedication to the best interest of the children.
Affirmed.
Neal and VAUGHT, JJ., agree.
The case relied upon by appellant for this proposition, Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), has been limited to its own facts by the Arkansas Supreme Court in an opinion that expressly states that the interpretation urged by appellant is too narrow. Hamilton it Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Although the Supreme Court recently restated the proposition in Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001), it did so without overruling or even mentioning its prior contrary decision in Hamilton v. Barrett, supra. Although the holdings regarding this issue are less than clear, it appears that, while a non-custodial parent’s changed circumstances may not, standing alone, constitute a material change in circumstances warranting modification of a custody order, a non-custodial parent’s changed circumstances nevertheless may properly be considered as a factor in determining whether such a material change in circumstances has occurred. Compare Hamilton v. Barrett, supra, and Lloyd v. Butts, supra. In the present case, in addition to the evidence that appellee’s circumstances had changed for the better, there was evidence that the joint and shared custody decree had become unworkable because of appellant’s intiansigence. See infra.
Appellant testified that the marriage ceremony took approximately fifteen minutes. | [
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Baker, Judge.
Appellant, Larry Ballard, was convicted of terroristic threatening in the first degree, a Class D felony. Following a bench trial, he was sentenced to three years’ probation, a fine of $300, and court costs. Appellant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We reverse and dismiss.
A felony information was filed on April 9, 1999, alleging that appellant had committed the act of terroristic threatening in violation of Ark. Code Ann. § 5-13-301 (Repl. 1997). Appellant was arrested and taken into custody on October 27, 1998, and released on bond. He was granted a motion for continuance on December 27, 1999; a continuance was also granted on a joint motion by appellant and the State on May 22, 2000. A bench trial was held on July 10, 2000. On that date, appellant moved to dismiss the charges against him, alleging a violation of his right to a speedy trial pursuant to Ark. R. Crim. P. 28.2(a) and (c). Specifically, appellant argued that he did not appear at his arraignment on April 26, 1999, because he was not given notice of his plea and arraignment. Therefore, the time period between April 26, 1999, and September 20, 1999, when appellant appeared for his plea and arraignment, should not be excluded from the one-year statutory requirement for a speedy trial. The trial court denied his motion.
Sandra Gaisbauer, case coordinator, testified as to the procedure for notifying a defendant to appear for plea and arraignment. She stated that once a felony information is filed in circuit court, a card is sent to the circuit court clerk’s office stating the defendant’s name and address, and a computer generated form letter is created from the information on the card. Gaisbauer then places the letter in the mailbox, and the bailiff is responsible for taking the mail. Gaisbauer testified that appellant’s card stated that appellant’s address was 3212 Whitfield in Little Rock, and that in accordance with general procedure, a letter would have been sent to appellant at that address. Because the letter was not returned, she presumed it was received. According to Gaisbauer, although it was not her practice to keep a copy of the letter, a copy of the letter should have been placed in the defendant’s file. However, there was no copy of the letter in appellant’s file. Appellant and his mother both testified that appellant was living at 3212 Whitfield in Little Rock in April 1999, and that appellant never received notice to appear at his plea and arraignment on April 26, 1999.
Appellant argues that he was denied a speedy trial in violation of Ark. R. Crim. P. 28.1. He claims that his right to a speedy trial was violated because he never received notice of his plea-and-arraignment date, and as a result, he failed to appear. Thus, the trial court erred by denying his motion to dismiss. The State contends that appellant’s right to a speedy trial was not violated because evidence was provided that proved that the letter notifying appellant of the plea and arraignment was sent to him, and that the trial court did not err by denying appellant’s motion to dismiss. We disagree.
The right to a speedy trial is expressed in the Bill of Rights, U.S. Const, amend. 6, and guaranteed to state criminal defendants by the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967). Arkansas Rules of Criminal Procedure 28.1(c) and 28.2(a) require the State to bring a defendant to trial within twelve months from the date the charge is filed in circuit court or, if the defendant has been lawfully set at liberty pending trial, from the date of arrest. See also Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). We have placed responsibility on the defendant to be available for trial; therefore, such time delays which result from a failure to appear for trial are excluded. Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992); see also Ark. R. Crim. P. 28.3(e). However, the State has the burden to show that any delay was the result of the defendant’s conduct or was otherwise justified. Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). The State also has the duty to show that it made diligent, good-faith effort to bring the accused to trial. Brown v. State, 330 Ark. 239, 952 S.W.2d 673 (1997); Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994); Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).
Appellant challenges only the time period from April 26, 1999, to September 20, 1999. In support of his assertion that this time period should not be excluded, he contends that the State has failed to demonstrate that notice of his plea and arraignment was actually sent. Testimony from Gaisbauer showed that it is standard policy to send a letter to appear for plea and arraignment; however, the State’s case lacked any independent evidence that notice was actually sent to appellant. Without a copy of the letter in appellant’s file, it was impossible to determine whether a mistake was made in the contents of the letter, the date and address of the letter, or whether a letter was actually sent. Appellant asserts that the State has failed to meet its burden of proof in this case. We agree.
Appellant relies on the case of Glover v. State, 287 Ark. 19, 695 S.W.2d 829 (1985). In Glover, our supreme court held that the State failed to meet its burden of proving that it did not know the whereabouts of Glover, for purposes of justifying untimely delay under speedy-trial rules. The State in Glover provided testimony that a deputy sheriff mailed a letter to Glover at the address Glover had given, and the letter was never returned. Id. at 20-21, S.W.2d at 380.
Glover is similar to the case at hand. Appellant and his mother both testified that in April 1999, at the time the notice was allegedly sent, appellant was living at 3212 Whitfield in Litde Rock. This fact is undisputed. Appellant and his mother both testified that appellant never received a letter at 3212 Whitfield in Litde Rock regarding his plea-and-arraignment date. The State relied solely on the testimony of Gaisbauer that it was her standard policy to send a notice to appellant, but as in Glover, the State’s reliance on Gaisbauer’s testimony that a letter was sent and not returned is simply insufficient. At a minimum, a copy of the notice should remain in appellant’s file in order to demonstrate that a letter was actually sent. Furthermore, it is troublesome that no further effort was made to contact appellant in the five months following his failure to appear on April 26, 1999. Here, the State has not met its burden of proof that notice of the plea-and-arraignment date was sent to appellant. Instead, the State has only proven that it is standard procedure to send such notices. Likewise, the State has failed to prove that the delay was the result of appellant’s conduct, and that the State made a diligent, good-faith effort to bring appellant to trial.
Accordingly, we hold that the trial court erred by denying appellant’s motion to dismiss.
Reversed and dismissed.
BIRD and Roaf, JJ., agree. | [
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BIRD, Judge.
Randy and Linda Ellis separated after twenty-eight years of marriage. Randy Ellis worked for Great Lakes Chemical Company and Linda Ellis, at the time of divorce, was working for a flower shop, sitting with an elderly lady, and operating her own florist business. At the time of divorce, Linda Ellis was earning less money than her husband, though there had been times in the past when she had earned as much as he did. Marital debts totaled $75,000, which included the marital home mortgage. In the August 20, 2000, divorce decree, ordered that Randy Ellis was to pay seventy percent and Linda Ellis was to pay thirty percent of the marital debts acquired between the date of marriage, April 27, 1973, and the date of separation, September 1, 1999. The decree awarded $100 per week permanent alimony to Linda Ellis, as well as attorney’s fees and costs. The chancellor stated that the reason for the unequal allocation of debt and the grant of alimony was the disparity in the parties’ income. The chancellor ordered the parties to divide the marital assets equally in kind and that, if they were unable to do so, that the assets were to be sold and the proceeds divided equally. Randy Ellis now appeals the chancellor’s grant of alimony and the division of the debts.
Alimony
The decision whether to award alimony is a matter that lies within the chancellor’s sound discretion, and on appeal we will not reverse a chancellor’s decision to award alimony absent an abuse of that discretion. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). A chancery court has authority to consider the allocation of debt in a divorce case. A chancery court’s decision to allocate debt to a particular party in a divorce case is a question of fact and will not be reversed on appeal unless clearly erroneous. Id.
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; the primary factors that a chancery 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. A chancery court may also consider other factors including, among other things: (1) the parties’ financial circumstances; (2) the amount and nature of the parties’ income, both current and anticipated; (3) the extent and nature of the parties’ resources and assets; (4) the parties’ earning ability and capacity. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).
Randy Ellis argues that the trial judge abused his discretion by awarding Linda EUis permanent alimony because Linda had the ability to earn as much money as Randy, and she had done so in the past. Randy Ellis argues that Linda EUis has the ability to earn as much money as he does because she has completed a two-semester course in dietary management. He further argues that the record is void of any proof of her financial need and that financial need is the main consideration in determining alimony.
Linda Ellis, on the date of her Affidavit of Financial Means, was earning a net income of $378.60 per week. Randy Ellis was earning a net income of $764.74 per week. Linda EUis had completed the course in dietary management but failed the certification test. She testified that she had been in a car wreck and out of work for a year and that Randy Ellis did not help her pay her medical bills. She admitted that her income had not always been lower than his, and stated that it was higher than his when she was working for one particular elderly patient twenty hours a day. However, she also testified that her florist business has never made a profit. She also alleged in her testimony that it was her husband who blew up her mobile home and that its contents were worth only $250.
This evidence is sufficient to show Linda Ellis’s financial need and Randy Ellis’s ability to pay; thus, the awarding of alimony to Ms. Ellis was not an abuse of the chancellor’s discretion.
Division of Marital Debt
Randy EUis argues that the chancellor erred by dividing the marital debt unequally for three reasons: (1) the chancellor stated the division was due to the disparity in income between the parties, thus Randy Ellis contends that the chancellor did not consider the earning power of both parties and that this was error; (2) not specifying whether Randy Ellis was responsible for seventy percent of the debt before or after the sale of the assets should such sale occur; (3) by not considering that $20,450 of the marital debt was in Linda Ellis’s name only.
Randy EUis contends that Ark. Code Ann. § 9-12-315 (Repl. 1998), which mandates that marital property be divided equaUy unless the court finds that such a division is inequitable, applies to the division of debts. Linda EUis, on the other hand, contends that by its own words, section 9-12-315 cannot apply to the division of debts, thus there is no presumption of an equal division. In Warren v. Warren, 33 Ark. App. 63, 800 S.W.2d 730 (1990), this court resolved this argument when it stated that “the code does not expressly give the chancellor the power to allocate marital debts as between the parties.” The court further stated, however, that this power is implied and that to ignore the debts would “nullify divorce effectiveness” and leave “an essential item of divorce dispute . . . unresolved.” Id. (quoting Srock v. Srock, 11 Ariz. App. 483, 466 P. 2d 34 (1970)).
A chancery court’s decision to allocate debt to a particular party in a divorce case is a question of fact and will not be reversed on appeal unless clearly erroneous. Anderson, supra. A chancery court’s determination that debt should be allocated between the parties in a divorce case on the basis of their relative ability to pay is not a decision that is clearly erroneous. Anderson, supra.
Randy Ellis’s Affidavit of Financial Means states that his biweekly net pay as $1,529.48. His share of the total marital debt monthly payment will be $952.70. Randy Ellis states in the affidavit that his monthly expenses total $1,575.35. Thus, after paying monthly debt payments and providing for monthly expenses, Randy Ellis will have $530.91 discretionary income per month. Linda Ellis earns $757.20 biweekly. Her share of the marital debts will be $408.30 per month and her monthly expenses total $1,305.00. Thus, even with the present allocation, Linda Ellis, if her income and expenses remain constant, will avoid a deficiency only because of the receipt of alimony.
In Richardson v. Richardson, 280 Ark 498, 659 S.W.2d 510 (1983), the chancellor held that each party was liable for their separate debts. Mr. Richardson contended that certain of his separate debts should be divided equally. The supreme court stated that:
[h]owever, [Mr. Richardson] has a high income while [Mrs. Richardson] has a modest income. [Mr. Richardson] will be able to pay the debt from income without materially changing his style of life. [Mrs. Richardson] could not pay the debts from her income. She would find it necessary to dispose of assets to pay part of the debt. Under the circumstances, we cannot say the ruling of the chancellor is clearly erroneous. Id.
Linda Ellis’s income was lower than that of Randy Ellis. It is only as a result of the chancellor’s allocation of debt and award of alimony that Linda Ellis will have slightly more discretionary income per month than Randy Ellis. If debts were divided equally, there is no doubt that Linda Ellis would have to sell assets to pay her half of the debts. Linda Ellis’s educational background appears to be limited to a two-semester dietary management course, a trade for which she failed to receive certification. Additionally, she stated that her florist business is operating at a net loss.
The chancellor did not clearly err in unequally dividing the martial debt due to the disparity in income and the parties’ relative abilities to pay the debt.
Randy Ellis further argues that the chancellor erred in the division of debt because the decision does not specify if he is responsible for seventy percent of the debt before or after the sale of assets and because some of the marital debt is in Linda Ellis’s name only. Randy Ellis does not cite authority nor make a convincing argument in support of these contentions. We do not address unconvincing arguments. See Harrison v. Benton State Bank, 6 Ark. App. 642 S.W.2d (1982).
Additionally, Randy Ellis argues that the chancellor erred by not allocating those debts that were incurred after September 1, 1999. The chancellor is not required to allocate debt. See Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); see also Anderson, supra. Because the chancellor is not required to allocate debt, there can be no error for allocating some but not all debt.
The chancellor stated in the decree that the allocation was due to the disparity in income, and the facts support a finding of disparity of income. Randy Ellis’s other two arguments are unconvincing. Therefore, we affirm the chancellor’s division of marital debt.
Affirmed.
GRIFFEN, J., and HAYS, Special Judge, agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from a decision of the Workers’ Compensation Commission which adopted an administrative law judge’s finding that appellant had failed to prove by a preponderance of the evidence that he was entitled to permanent partial disability and rehabilitation benefits.
Appellant was injured when the bridge he was working on partially collapsed and he fell about 35 feet to the ground. He was unable to work for four months during which time he was paid compensation. His appeal for additional compensation is based on the contention that he has an extreme fear of heights due to his fall and, therefore, is no longer able to pursue his occupation of iron worker because it requires climbing.
The appellant relies on the testimony of Dr. John Ewing Harris, an independent witness selected by the law judge, that claimant’s psychological injury and subconscious fear of heights and falling was as close to a permanent disability as he had seen; that the accident was the overriding factor in this condition; and that this fear was ingrained and permanent. There was other evidence, however, that appellant was earning more at the time of the hearing, nearly two years after the accident, than he had been when he fell. Appellant admitted this was true but testified that, although he had been making this wage for more than a year, he did not think this would continue much longer because his supervisor was just doing him a favor. Also there was evidence that appellant had taken a welding course while working for another employer and had done some construction welding; that after the accident he had worked at heights of 10 to 15 feet; and that he was a good hand both before and after the accident.
Ark. Stat. Ann. § 81-1302 (e) (Repl. 1976) defines disability as being the “incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.” In discussing what is meant by this language, the Arkansas Supreme Court in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), quoted extensively from Larson, Workmen’s Compensation Law as follows:
The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.
And the court concluded by holding that “consideration should have been given, along with the medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”
In Abbott v. C. J. Leavell & Co., 244 Ark. 544, 549, 426 S.W.2d 166 (1968), the court said “because appellant is making as much money now as he did before does not necessarily mean he has the ‘capacity’ to earn that much,” and that it was also proper to consider how long he would be able to make that much. The concurring opinion enlarges on these matters as follows:
Compensation is paid to those suffering a com-pensable disability. In order to give the term disability substance and meaning it is keyed to the capacity to earn wages.- Larson, Workmen’s Compensation Law, §§ 57.22 and 57.34 discusses the problem similar to the case at bar. “If the employee, as often happens, returns to his former work for the same employer after his injury, or is offered it, at a wage at least as high as before, there is a strong presumption against loss of earning capacity. . . . Wages paid an injured employee out of sympathy, or in consideration of his long service with the employer, clearly do not reflect his actual earning capacity, and, for purposes of determining permanent disability, are to be discounted accordingly. The same is true if the injured man’s friends help him to hold his job by doing much of his work for him, or if he manages to continue only by delegating his more onerous tasks to a helper.”
“The ultimate objective of the disability test is, by discounting these variables, to determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured, taking wage levels, hours of work, and claimant’s age and state of training as of exactly the same period used for calculating actual wages earned before the injury. Only by the elimination of all variables except the injury itself can a reasonably accurate estimate be made of the impairment of earning capacity to be attributed to that injury.” Larson, Workmen’s Compensation Law, § 57.21.
244 Ark. at 552 and 553.
From the above, we think it clear that a person injured on the job may suffer disability because of a physical loss or because of an inability to earn as much as he was earning when he was hurt and that a person can be disabled who has lost either or both. Also in Owens v. National Health Laboratories, 8 Ark. App. 92, 648 S.W.2d 829 (1983), we held that some psychological injuries might be compensable under our law. In the instant case, appellant was earning higher wages at the time of the hearing than he was at the time of the accident. Whether he had a compensable disability, however, was a question for the Commission to determine under the law we have discussed. We must affirm that decision unless we are convinced that fair-minded men could not have reached the same conclusion. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Guided by that standard, we affirm.
Cooper and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Walter W. Brown, and appellee, Kathey M. Brown, were divorced on December 5, 1979, by decree of the chancery court of Union County, Arkansas. Custody of the minor children was awarded to appellee with certain visitation rights to appellant. On June 23, 1982, appellant filed a motion to amend child visitation. Appellee had moved to Ohio shortly after the divorce taking the children with her after posting a $1,000.00 bond. The chancellor ruled that in accordance with Ark. Stat. Ann. § 34-2703 (Supp. 1983), the chancery court of Union County, Arkansas, no longer had proper subject matter jurisdiction to hear or enter any order affecting the custody rights or visitation rights with regard to the minor children and dismissed appellant’s motion. We reverse and remand.
The issue on appeal is whether the chancellor erred in dismissing appellant’s motion to amend child visitation for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2701 et seq.
Custody determination as used in the Uniform Child Custody Jurisdiction Act “means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person.” Ark. Stat. Ann. § 34-2702(2) (Supp. 1983) (emphasis ours). In the case at bar appellant seeks a modification of his visitation rights which determination is governed by our Uniform Child Custody Jurisdiction Act. The original decree of divorce awarded appellant reasonable visitation which included one week during Christmas and Christmas Day, reasonable weekend visitations upon five days’ notice and two weeks of visitation during the summer each year upon reasonable notice to appellee. Appellant’s motion requested that the original decree of divorce be amended and that he be granted eight weeks of visitation each summer, as well as one week during Christmas and Christmas Day and that all child support be abated during the requested periods of visitation.
Both Arkansas and Ohio have adopted the Uniform Child Custody Jurisdiction Act. Our Act was approved February 9,1979, and became effective July 20, 1979 (90 days after the legislature recessed on April 20, 1979). The purpose of the Act is to promote cooperation between the courts of various states so the state that can best serve the interests of the child will decide the matter. It is designed to discourage continuing controversies and avoid competition and conflict between the courts of the various states. Ark. Stat. Ann. § 34-2701 (Supp. 1983).
The trial court had the discretion in the instant case to take jurisdiction under the alternative situation set forth in Ark. Stat. Ann. § 34-2703(a)(2) which provides:
(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
... (2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one [1] contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or. . .
Pursuant to the above authority, Arkansas undoubtedly had jurisdiction to hear the evidence on the issue of whether or not a modification of appellant’s visitation rights was in order. We hold that the trial court erred in finding that it no longer had proper subject matter jurisdiction in regard to the visitation rights of appellant. The minor children and appellant have a significant connection in Arkansas and there is available in Arkansas substantial evidence concerning the minor children’s present or future care, protection, training and personal relationships in regard to the visitation rights of appellant. Such evidence would include, but is not limited to, the suitability of appellant’s home and the ability of appellant to supervise the children while visiting with him in Arkansas. The Arkansas court is in a much better position to obtain the facts which bear on the fitness of appellant and the best interest of the minor children in regard to any change in visitation.
Accordingly, we reverse and remand for a hearing on the merits of appellant’s motion to amend child visitation.
Reversed and remanded.
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Melvin Mayfield, Chief Judge.
Appellant seeks review of a decision which allowed the Employment Security Division to recoup from current unemployment benefits an overpayment previously made.
In the summer of 1981, the agency denied appellant’s claim for benefits because it found he had quit his job without good cause in connection with the work. However, he was inadvertently paid benefits for eight weeks which resulted in a total overpayment of $1,088.00. By notice dated October 21, 1981, appellant was informed of the amount of this overpayment and of his liability for repayment. That determination was appealed to the Appeal Tribunal and on November 25, 1981, the tribunal issued a decision affirming the agency determination. Ark. Stat. Ann. § 81-1107 (f) (2) (Supp. 1983) provides such overpayment may be recovered by deduction from future benefits unless it is found that it was made without fault on the part of the recipient and that its recovery would be against equity and good conscience. The decision issued by the tribunal was not appealed, but it made no finding as to whether recovery would be against equity and good conscience.
Appellant applied for unemployment benefits again in June of 1982 and the Employment Security Division notified him that those benefits would be withheld until the 1981 overpayment had been recovered. By a series of letters to the Appeal Tribunal and Board of Review, counsel for appel lant requested a hearing on the question of whether repayment would be against equity and good conscience. The tribunal and the board both refused to grant such a hearing because they contended the decision of November 23, 1981, became final and binding when the time for its appeal expired.
Appellant has filed a petition for review in this court and makes various arguments to support his contention that we should direct the Board of Review to afford him a hearing on whether recoupment of the overpayment would be against equity and good conscience. We find, however, that the petition should be denied.
In Pritchett v. Director of Labor, 5 Ark. App. 194, 634 S.W.2d 397 (1982), we affirmed the Board of Review’s decision that the claimant had left her job without good cause in connection with the work, but we reversed the board’s finding of liability to repay benefits already received and said:
If appellant has been paid benefits to which she was not entitled, due process requires that her liability to repay the amount so received must be determined after she has been afforded the opportunity of a hearing, after proper notice, upon all the issues set out in Ark. Stat. Ann. § 81-1107(f) (2)(Supp. 1981). Whitford v. Daniels, 263 Ark. 222, 563 S.W.2d 469 (1978); Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980).
It should be noted that Pritchett was in this court on a direct and timely appeal from a decision holding the appellant liable to repay benefits received. But that is not the situation here. In this case there was no appeal from the decision of liability to repay benefits and that decision was final and is not before us.
Pritchett and the Paulino case cited therein are relied upon by appellant for the proposition that the right to be heard is a fundamental requirement of due process. In Paulino the appellant attempted to appeal from the Appeal Tribunal to the Board of Review after the 15 days allowed by the Employment Security Act had elapsed and the board dismissed her appeal. This court reversed and remanded for the board to consider the appellant’s contention that her late filing was due to circumstances beyond her control — a statutory excuse which allowed the appeal to be considered as timely filed. Again, that case was before this court on appeal, but in the present case the issue of repaying benefits has been decided and has not been appealed to us.
In Stover v. Deere, 249 Ark. 334, 461 S.W.2d 393 (1971), an unemployment benefit case, the court was unwilling to allow an issue to be raised that should have been decided in the first instance. To grant appellant’s petition for remand in the present case would result in piecemeal adjudication and in light of the nature and volume of unemployment claims is not a desirable method of handling those matters. Res judicata applies to the decisions of boards and commissions as well as courts. Wells v. Ark. Public Service Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981); Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976). In Smith v. Smith, 241 Ark. 465, 409 S.W.2d 317 (1966), thecourtquoted from an earlier decision as follows:
The true reason for holding an issue res judicata is not necessarily for the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy.... Further, res judicata is applicable not only to an issue actually litigated, but also governs as to matters within the issue that might have been litigated.
We think the appellant was afforded a reasonable and meaningful opportunity to present the issue of equity and good conscience before the Appeal Tribunal and to appeal from its decision. This meets the requirements of due process, Mathews v. Eldridge, 424 U.S. 319 (1976), and is in accordance with our statutory and case law. Therefore, his petition for review is denied.
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Olly Neal, Judge.
This is an appeal from the Saline County Chancery Court’s order granting appellee’s motion for summary judgment. On appeal, the appellant argues the court erred in granting summary judgment because its decision was not based upon the record as required by Arkansas law, but upon a trial in probate court, which is not a part of this record; and because the record reflects genuine issues of material fact. In the alternative appellant argues that even if the trial court did not err in granting appellee’s motion for summary judgment in finding a constructive trust, its finding that $738,000 was the proper amount of damages is clearly erroneous. We affirm.
Appellant, Melba Laird is Don McMann’s sister. Appellee, Sandra Shelnutt is his stepdaughter from his marriage to Dixie McMann. On June 23, 1995, Don McMann and his wife Dixie executed reciprocal wills that were prepared by John Lovell, a Benton attorney. Their wills appointed Sandra Shelnutt executrix. After the death of the survivor, the residue of their estate was left to Sandra Shelnutt. The wills contained a clause stating “they agreed that neither would alter, amend, or change their wills or do any act or suffer any omission which would defeat the testamentary plan outlined in their wills ‘except by mutual agreement at the time when both of us are alive.’ ”
On January 29, 1998, $900,000 in funds from an investment account in the name of Don McMann, his wife, Dixie, and Sandra Shelnutt as joint tenants with rights of survivorship, were evenly split as between Sandra Shelnutt and Don McMann. Dixie McMann died February 2, 1998, and following her death, Don added appellant to his account as a joint tenant with right of survivorship. Don also executed a new will on July 14, 1998, naming appellant as his executrix and heir.
Don died June 5, 1999, and appellee was appointed executrix of his estate pursuant to the June 23, 1995, will. Appellant contested the will and sought to probate the 1998 will; however the probate court gave effect to the 1995 will. Appellant appealed arguing the probate court lacked subject-matter jurisdiction to enforce the will contract. We recently held in an unpublished opinion, that the probate court lacked subject-matter jurisdiction to enforce the contract and reversed and remanded the case. Laird v. Shelnutt, CA 00-1226 (Ark. App., Sept. 5, 2001).
Appellee brought an action to impose a constructive trust against the property that was once in the joint account held by Don and appellant, which can be traced to two separate trusts, the Melba Laird Trust and the Max Laird Trust. Appellee argued that Don and Dixie had an agreement that Don would leave property to be transferred by will. Appellee moved for summary judgment, alleging all questions of fact were resolved in probate court. Appellee supported her motion with the transcript of the probate court proceeding. The chancery court issued an order granting appellee’s motion for summary judgment, ordering a constructive trust to be placed on a $738,000 investment account owned by appellant.
A trial court’s grant of summary judgment is proper when it is clear there are no issues of material fact to be tried. Tackett v. McDonald’s Corp., 68 Ark. App. 41, 3 S.W.3d 340 (1999). Once the moving party makes a prima facie showing of entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001) (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)). On appellate review, we determine if the grant of summary judgment was proper based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Holytrent Prop. v. Valley Park Ltd., 71 Ark. App. 336, 32 S.W.3d 27 (2000). We view pleadings, affidavits, documents, and exhibits filed in support of a motion for summary judgment in the light most favorable to the nonmoving party. Tackett v. McDonald’s Corp., supra. After reviewing the undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Plant v. Wilbur, supra, (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)).
Appellant argues the trial court erred in granting summary judgment because its decision was not based upon the record required by Arkansas law, but on a trial in probate court, which is not part of the record and because the record reflects genuine issues of fact. We must point out that appellant failed to abstract the disputed transcript, and appellee corrected the deficiency in her brief. We hold that the probate transcripts were a part of the record because the trial court stated in its order that it relied on the transcripts from the probate proceeding in rendering its decision and because the probate transcripts are part of the certified record filed with our clerk’s office.
Matters to be considered in summary-judgment proceedings include affidavits, depositions, admissions, and answers to interrogatories. UMLIC 2 Funding Corp. v. Butcher, 333 Ark. 442, 970 S.W.2d 211 (1998). We have not addressed the issue of whether a transcript may be used to support a motion for summary judgment. The Maryland Court of Appeals has stated that a transcript of former testimony possesses the same indicia of reliability as an affidavit in the summary-judgment context. Imbraguglio v. Great Atlantic & Pacific Tea, 747 A.2d 662 (Md. 1999). The Maryland Court reasoned that a transcript indicates matters the witness would testify to if called in the present case, and like an affiant, the witness gave the former testimony under oath. See id. The Maryland Court did note that other courts have decided a transcript of former testimony may not be considered by the trial judge when ruling on a motion for summary judgment. See id.; Copeland v. Sanford Univ., 686 So.2d 190 (Ala. 1996); Gatton v. A.P. Green Servs. Inc., 64 Cal.App.4th 688 (1998). However, the Court found those cases distinguishable because the transcript testimony was being offered against a plaintiff or defendant who was not a party to the previous case. See Imbraguglio, 747 A.2d at 670. The Maryland Court held that in regard to summary judgment, a court may consider transcript testimony from a prior proceeding involving the same parties. See id.
Affidavits submitted in support of, or opposing, summary judgment are never subject to cross-examination. Farmers Union Oil Company of Williston v. Harp, 462 N.W.2d 152 (1990). A transcript is superior to an affidavit in that it is subject to cross-examination and conducted under the supervision of a trial judge. We hold that the transcript in the present case possesses all the indica of reliability and that a court may consider a transcript in summary judgment proceedings.
It was proper for the trial court to rely on the transcripts in rendering its decision to grant summary judgment. After reviewing the pleadings, affidavits, documents and exhibits filed in support of the motion for summary judgment in a fight favorable to appellant, we hold there were no issues of material fact to litigate; therefore, the trial court’s grant of summary judgment was proper.
Appellant argues, in the alternative, that even if the trial court did not err in granting appellee’s motion for summary judgment in finding a constructive trust, its finding that $738,000 is the proper amount of damages is clearly erroneous. Appellee presented the testimony of Martin Northern, a stock broker and registered investment advisor. He testified that he was able to trace $493,249.18 originally in Don McMann’s account to trust accounts in the names of appellant and her husband. He also testified that appellant never contributed to the accounts. Northern further testified that the accounts contained $737,791.96 that formerly belonged to Don McMann. Appellant challenges this calculation; however, she failed to offer any proof that this calculation was in error. We hold that the trial court’s valuation of the trust at $738,000 was proper.
Appellant failed to abstract the probate transcript. Appellee’s attorney filed a motion for attorney’s fees because he corrected the deficiency. We believe he is entitled to attorney’s fees in the amount of $1,500.
Accordingly, we affirm.
Pittman and Vaught, JJ., agree. | [
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JOHN B. ROBBINS, Judge.
Appellant Paul Towery brought a workers’ compensation claim against appellee Hi-Speed Electrical Company, alleging that he sustained a compensable injury on November 7, 1997, which ultimately resulted in surgery to repair a herniated disc at C6-7 on June 10, 1999. Mr. Towery sought medical expenses, temporary total disability benefits from May 24, 1999, through October 25, 1999, and benefits for a seven-percent permanent partial impairment. After a hearing, the Workers’ Compensation Commission found that Mr. Towery failed to prove that his neck problems were causally related to his work, and denied his claim.
Mr. Towery appeals from the decision of the Commission, arguing that it is not supported by substantial evidence. On cross- appeal, Hi-Speed Electrical argues that the Commission lacked jurisdiction because Mr. Towery elected a remedy by filing his workers’ compensation claim in Tennessee. We affirm on direct appeal and on cross-appeal.
We first address the appellee’s cross-appeal challenging the propriety of the Commission’s exercise of jurisdiction over Mr. Tow-ery’s claim. The record shows that appellee is a Tennessee corporation, but Mr. Towery’s residence and the site of the alleged compensable injury are in Arkansas. In a correspondence dated November 18, 1999, the Tennessee Department of Labor acknowledged receipt of a “First Report of Injury” form. However, this form is not in the record and testimony showed that it was apparently filed by Hi-Speed Electrical on June 24, 1999. The only other document in the Tennessee file is a notice indicating that the appellee was denying the compensation claim as of June 29, 1999. Nothing in the Tennessee file bore Mr. Towery’s signature. Mr. Towery filed his claim with the Arkansas Workers’ Compensation Commission on August 18, 1999.
Len Atkins, an employee of appellee’s insurance carrier, testified that he had a telephone conversation with Mr. Towery on June 29, 1999, and that he explained to Mr. Towery that he could elect to bring a workers’ compensation claim in either Arkansas or Tennessee. According to Mr. Atkins, Mr. Towery inquired about the difference in potential benefits, and Mr. Atkins told him that he could recover a higher amount if he filed in Tennessee. Mr. Atkins testified that he informed Mr. Towery that the limitations periods differed in that his claim was barred one year after the date of injury in Tennessee, as opposed to two years in Arkansas. Mr. Atkins testified that Mr. Towery told him that he preferred to file his claim in Tennessee, and stated that “I could only assume he was under the assumption that we were going to deny his claim” because the statute of limitations had already expired in that State.
For its argument that Mr. Towery’s claim in Arkansas was barred because he elected a remedy in Tennessee, appellee cites Biddle v. Smith & Campbell, Inc., 28 Ark. App. 46, 773 S.W.2d 840 (1989), where we held that the determination as to whether an election of remedies was made depends on whether the claimant actively initiated proceedings or knowingly received benefits pursuant to the laws of another state. We disagree with appellee and hold that the Commission correctly ruled that Mr. Towery’s claim was not barred by the election-of-remedies doctrine.
It is undisputed that, unlike the situation in Biddle, supra, the appellant in the instant case received no benefits from another state. Nor are we persuaded that Mr. Towery “actively initiated” the Tennessee proceedings. After Mr. Towery informed the appellee that he was bringing a workers’ compensation claim, the appellee elected to file a “First Report of Injury” in Tennessee. Shordy thereafter, a representative of appellee’s insurer advised Mr. Towery that benefits might be slightly higher if he filed his claim in Tennessee, knowing full well that any action in that state was completely barred by the applicable statute of limitations. Although the insurer’s agent testified that he explained the. statute of limitations provisions to Mr. Towery, Mr. Towery denied this and it is evident that he did not understand them or he would not have agreed to file the claim in Tennessee. At any rate, the only document filed in response to Mr. Towery’s verbal representation that he preferred to proceed in Tennessee was the appellee’s notice that it was denying the claim. Mr. Towery filed nothing in Tennessee, and his verbal preference made in response to the advice of the insurance representative falls well short of actively initiating Tennessee proceedings and electing a remedy in that state, and for these reasons the Commission committed no error in ruling that his claim in Arkansas was not barred by the election-of-remedies doctrine.
We now turn to the merits of Mr. Towery’s point on direct appeal that the Commission’s decision denying compensability was not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). The Commission’s decision will be affirmed unless fair-minded persons with the same facts before them could not have arrived at the same conclusion. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). In cases where a claim is denied because a claimant failed to show entidement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999).
At the hearing, Mr. Towery testified that he has worked for the appellee from August 1997 through the present. He was attempting to load a 500 or 600-pound “jenny lift” onto a truck when it flipped. At that time, a pull bar at the bottom of the heavy equipment struck him in the chin, busted his lip, and almost knocked him out. Mr. Towery continued to work that day, but he reported the accident to his supervisor and an investigative report was filed.
Mr. Towery testified that, two or three days after the accident, he had a swollen and irritated place on the back of his neck, although “it didn’t really hurt that bad at the time.” He stated that four or five months later he began experiencing numbness in his left shoulder. He first sought medical treatment when he visited Dr. Grady Collum in September 1998, about ten months after the accident.
When he visited Dr. Collum, Mr. Towery did not know what was causing his problems, and he was diagnosed with bursitis. He was eventually referred to Dr. Guy L’Heureux, who continued conservative treatment without success. An MRI was conducted on May 28, 1999, which revealed a disc herniation at C6-7. Drs. John Lindermuth and Rommel Childress performed fusion surgery to repair the herniation on June 10, 1999, and Dr. Lindermuth subsequently assigned a seven-percent permanent impairment rating.
On direct examination, Mr. Towery testified that he suffered no other accidents that could have caused his neck injury, and he also asserted that he had no medical or physical problems when he began working for the appellee. However, on cross examination Mr. Towery acknowledged that he experienced back pain while working for a former employer and also experienced neck pain. He also acknowledged that he had been seeking treatment for back pain and pain in his right shoulder since as early as July 1996.
The medical evidence in this case documents a history of back and neck problems that predates the November 7, 1997, accident. A July 11, 1996, medical report by Dr. James Merritt references radiating shoulder pain and back and neck discomfort. A medical report from Dr. Shakeb Hashni, dated March 17, 1997, indicates that Mr. Towery was complaining of lower and upper back pain. Dr. Thrash, a chiropractor, reported on March 31, 1997, that Mr. Towery was complaining of back and neck pain. As a result of his diagnosis on that day, Dr. Thrash took Mr. Towery off of work from that date through May 1, 1997.
The only medical report directly addressing the compensability of Mr. Towery’s injury was filed by Dr. Childress on June 18, 1999. In that report, Dr. Childress stated, “I have advised him that with the history that he has given, that [the accident] is the likely source of the disc rupture [.]”
For reversal of the Commission’s decision, Mr. Towery argues that the Commission erred in failing to credit the opinion of Dr. Childress and that there was no medical evidence or testimony suggesting any cause for the herniation other than the work-related accident. While acknowledging that he had some medical problems that pre-existed the accident, Mr. Towery submits that these problems were different than his subsequent problems in that they generally affected his back and not his neck. Mr. Towery notes that he passed a pre-employment physical examination, and asserts, “There is simply no evidence that the disc herniation was caused in any manner other than the November 7, 1997, blow to the face.”
We hold that the Commission’s opinion displays a substantial basis for its finding that Mr. Towery failed to prove a causal connection between his disc herniation and the November 7, 1997, accident. Contrary to Mr. Towery’s argument, the medical evidence showed that he was suffering from both back and neck problems prior to the accident. Indeed, when Dr. Thrash took Towery off work for the month of April 1997, his report indicated both back and neck complaints, and his primary diagnosis on a disability claim form was cervicalgia. The Commission gave little weight to Dr. Childress’s opinion that the neck condition was likely compensable, noting that his opinion was in part based on an inaccurate history given by Mr. Towery, who told Dr. Childress that he experienced no pain or difficulty prior to the incident at work. It is well settled that the weight to be given medical testimony is for the Commission to determine. See Wal-Mart Stores, Inc. v. VanWagner, 63 Ark. App. 235, 977 S.W.2d 487 (1998). Moreover, the evidence showed that Mr. Towery continued to work after the accident and experienced no symptoms of numbness for four or five months, and that he failed to seek medical treatment until more than ten months later. Under these facts, fair-minded persons could have come to the Commission’s conclusion that Mr. Towery failed to establish a compensable injury.
Affirmed on direct appeal and on cross-appeal.
Baker and roaf, JJ., agree.
Although appellee sometimes refers to a lack of jurisdiction of the Arkansas Workers’ Compensation Commission to entertain Mr. Towery’s claim, appellee does not actually argue that the presumption ofjurisdiction created in Ark. Code Ann. § 11-9-707(1) was rebutted. Appellee’s argument is based upon the election of forum or remedies doctrine.
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Terry Crabtree, Judge.
The appellant, Sharon Johnson, brings this appeal from a decision of the Board of Review denying her claim for unemployment benefits based on a finding that she was discharged for misconduct in connection with the work. On appeal, she contends that the Board’s decision is not supported by substantial evidence. We disagree and affirm.
Arkansas Code Annotated section ll-10-514(a)(l)(Repl. 2002) provides that an individual shall be disqualified for benefits if she is discharged for misconduct in connection with the work. Subsection (b) of the statute provides that, -if the claimant is discharged for misconduct in connection with the work on account of a willful violation of bona fide rules or customs of the employer pertaining to the safety of fellow employees, persons, or company property, the claimant shall be disqualified from the date of filing the claim until the claimant shall have ten weeks of employment in each of which the claimant shall have earned wages equal to at least his weekly benefit amount.
“Misconduct,” for purposes of unemployment compensation, involves: (l)disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect; and (4) disregard of the employee’s duties and obligations to his employer. Rossini v. Director, 81 Ark. App. 286, 101 S.W.3d 266 (2003). To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. Instead, there is an element of intent associated with a determination of misconduct. Blackford v. Director, 55 Ark. App. 418, 935 S.W.2d 311 (1996). There must be an intentional and deliberate violation, a willful and wanton disregard, or carelessness or negligence of such a degree or recurrence as to manifest wrongful intent or evil design. Rossini v. Director, supra. Misconduct contemplates a willful or wanton disregard of an employer’s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer-has a right to expect from its employees. Blackford v. Director, supra.
Whether an employee’s actions constitute misconduct in connection with the work sufficient to deny unemployment benefits is a question of fact for the Board. Thomas v. Director, 55 Ark. App. 101, 931 S.W.2d 146 (1996). Our standard of review of the Board’s findings of fact is well-settled:
We do not conduct a de novo review in appeals from the Board of Review. In appeals of unemployment compensation cases we instead review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board of Review’s findings. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; 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 have reasonably reached its decision based on the evidence before it. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.
Snyder v. Director, 81 Ark. App. 262, 263, 101 S.W.3d 270, 271 (2003). Additionally, the credibility of witnesses and the weight to be accorded their' testimony are matters to be resolved by the Board of Review. Williams v. Director, 79 Ark. App. 407, 88 S.W.2d 427 (2002).
The appellant in this case had worked for appellee Beverly Health in Camden, Arkansas, as an LPN since 1986 until she was terminated on October 16, 2002. Glenn Clark, the executive director of the nursing-home facility, testified that appellant was fired for violating Rule 1.1 of Beverly’s progressive disciplinary system for resident “neglect” because of her failure to intervene on behalf of a resident. Mr. Clark explained that appellant had worked the 11:00 p.m. to 7:00 a.m. shift on October 13-14 when at around 5:00 a.m. she made an entry into a resident’s medical chart that she was unable to obtain bowel sounds. Clark said that, when bowel sounds are not detected, standard protocol called for an LPN to locate another nurse to listen for bowel sounds, and that if none were heard, a physician was to be alerted immediately and the resident’s family and the director of nursing were to be notified. Appellant, however, took no further steps after making the entry in the resident’s chart. Another nurse was not called in, and a doctor was not notified. Clark said that, when he asked appellant why she had not intervened on behalf of the resident, appellant responded that she “just didn’t.” Clark testified that listening for bowel sounds was a basic part of the physical assessment LPN’s were required to perform and that employees were notified through in-service training of the proper procedure to follow when bowel sounds are not heard. Clark further testified that appellant had a history of not attending in-service training sessions. He said that appellant’s failure to follow protocol in this instance was a category-one violation and that employees are advised that they could be discharged for a single category-one violation. Clark also testified that appellant’s infraction was required by law to be reported to the Office of Long-Term Care and that the Office of Long-Term Care had reported the incident to the State Board of Nursing. Additionally, Clark testified that the absence of bowel sounds was an indication that something was wrong internally, such as renal failure, and that the resident in question was admitted into the hospital later that day with renal failure.
Appellant testified that the resident in question had been complaining for a week. She said that she heard the patient moaning that morning and that she took her vital signs which were within normal limits. She said that the resident told her that she was fine but that she also said that “I just don’t feel good.” Appellant denied that her training and experience required her to do anything after being unable to detect bowel sounds. She said that, based on experience, she knew when to call a doctor and that she did not feel that the resident in question was in such distress as to be in need of a doctor. Appellant testified that her immediate supervisor had only given her verbal counseling over this incident but that her supervisor had also told her that she should have called a doctor. She admitted that she had not attended the last in-service training and that she had been written up in the past for not attending training sessions.
On this evidence, the Board determined that appellant was discharged for misconduct, finding that appellant had willfully violated the employer’s rules pertaining to the safety of persons. Appellant contends on appeal that this finding is not supported by substantial evidence.
In St. Vincent Infirmary v. Daniels, 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980), two employees who worked at the hospital’s day-care center were discharged for leaving the workplace one afternoon to attend to personal business. We concluded that this single incident of leaving work amounted to misconduct because the employees had left without permission and without clocking out; because they were absent during a busy time of day at a time that did not correspond to their lunch hour; and, most significantly, because their absence placed the day care in violation of regulations concerning the ratio of adult employees to the number of children present. We held that the employees’ acts were intentional and displayed a substantial disregard for their employer’s interests and their own duties and obligations.
In Beck v. Director, 65 Ark. App. 8, 987 S.W.2d 733 (1999), a nurse violated the hospital’s policy regarding the dispensation of narcotics. The hospital’s procedure for dispensing narcotics required the nurse to sign out the medication in the narcotics book, noting both the date and the time, and then to give the medicine to the patient. The nurse admittedly violated this rule one day by not documenting the medication as it was given. Instead, she waited until the end of her shift and attempted to complete the necessary documentation from memory. Several days before, the nurse had also failed to consult a patient’s chart prior to dispensing a dose of Darvocet, which resulted in the patient’s receiving the medication at the wrong time. On this record, we rejected the nurse’s contention that her conduct was nothing more than a good-faith error in judgment and held that her actions were not only in violation of the employer’s rules, but that her conduct constituted a disregard of the employer’s interests and the standard of behavior the employer had a right to expect, and a disregard of her duties and the obligations that she owed to her employer.
In this case, the sole issue before us is whether the Board could reasonably conclude that appellant’s actions rose to the level of misconduct. When the evidence is viewed in the appropriate light, we are unable to say that there is no substantial evidence to support the Board’s finding. The testimony reflects that listening for bowel sounds was a basic component of the physical assessment nurses were required to perform. The nursing home had established a procedure that was to be followed in the event a nurse was unable to detect bowel sounds in order to ensure the protection of its residents’ health and well-being. This procedure reflects that the absence of bowel sounds was deemed serious enough to warrant immediate attention and the notification of a physician. The procedure does not allow for the exercise of independent judgment or discretion on the part of nurses to depart from its requirements. When asked soon after the incident why she did not follow protocol, appellant offered no explanation other than to say that she “just didn’t.” We think the Board could reasonably conclude that appellant’s failure to follow protocol was a dereliction of duty that was wanton and willful and that her inaction amounted to a violation of the employer’s rules, a disregard of the employer’s interest, a disregard of the standards of behavior the employer had a right to expect, as well as a disregard of the appellant’s duties and obligations to her employer. Although appellant suggests that Mr. Clark’s testimony was entitled to little weight and that we should accept her testimony that she did not neglect the resident, it is not our function to determine the weight and credibility of the testimony, as those matters are for the Board to assess. See Williams v. Director, supra. The Board chose to lend more credence to Clark’s testimony than that of the appellant, which was its prerogative.
Affirmed.
Stroud, C.J., and Pittman, Robbins, and Neal, JJ., agree.
Griffen, Gladwin, Baker, and Roaf, JJ., dissent. | [
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James R. Cooper, Judge.
This is an eminent domain case. The appellant condemned a seventy foot right-of-way which encompassed 1.17 acres for the installation of a gas line, and .114 acre for a temporary construction easement. From a jury award finding just compensation to be $13,500.00 comes this appeal.
On appeal, the appellant argues that the trial court erred in permitting the landowner and his witnesses to testify as to damages incurred to the Hill’s ten acre tract’s value as a subdivision. The landowner, appellee Delbert Hill, testified that he had intended to sell lots off his tract of land; that he believed he could have gotten $5,000.00 per lot; and that some of, if not all, of the planned lots were no longer marketable. The landowner’s testimony as to value per acre, both before and after the taking, was based on his planned subdivision of the raw acreage. He did not testify as to his estimated costs to develop the property, but he stated that he thought he could do it “reasonable.” Mr. Hill estimated the damage to the tract to be $18,000.00.
Mr. James Patterson, President of the Citizens Bank of Lavaca and Barling testified on behalf of the appellees. He testified that the highest and best use of the tract was as a small acreage subdivision. He had appraised the property for the bank at $ 18,000.00 and he valued it after the taking at $10,000.00. He testified that he was knowledgeable about subdivisions and the value of land in the vicinity, but admitted he had no comparable sales which formed the basis for his opinions as to value. His after value figure was apparently based on the belief that any kind of land was worth $1,000.00 per acre.
Mr. Lewis Ballard, an independent appraiser, prepared a detailed schedule showing the land cost per 2.5 acre lot, the development cost per lot, the estimated market price per lot after development, and the profit which he estimated at $14,400.00 before the easement and $2,799.00 after the easement, leaving a loss of $11,600.00. To that figure he added his estimate of the value of the .84 acre actually taken, which, when multiplied by his per acre figure, $2,000.00, equaled $1,680.00 totalling$13,280.00 as his estimate of the total damage caused by the easement. Mr. Ballard’s estimates as to development costs were based on his experience as an appraiser, but that estimate did not take into account any real estate commissions or interest.
Mr. Q. A. Mabrey, a witness for the appellant, testified that in his opinion the highest and best use of the tract was for a rural homesite and acreage. He appraised the property at $1,500.00 per acre before the taking; that the highest and best use of the property had not changed; and that the damage sustained as a result of the easement was $1,850.00 which represented 1.23 acres (the total land taken, both temporarily and permanently) times $1,500.00 per acre. He found no damage to the remaining land.
The Hills had taken no steps to subdivide their 10 acres. The property had not been surveyed for a subdivision, no plot had been prepared, no lots had been sold or offered for sale, nor was there any evidence of any other steps having been taken to create a subdivision. The testimony of Mr. Hill, Mr. Patterson, and Mr. Ballard, is precisely the type of testimony, based on a mythical subdivision, which has been held speculative and based on conjecture by the Arkansas Supreme Court. In Ark. State Highway Comm. v. Watkins, 229 Ark. 27, 313 S.W.2d 86 (1958), the Court quoted with approval the following language from City of Philadelphia v. United States, 53 Fed. Supp. 492 (1943):
“Equally improper is evidence showing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted; but it is the tract, and not the lots into which it might be divided, that is to be valued.”
See also Arkla Gas v. Howard, 240 Ark. 511, 400 S.W.2d 488 (1966).
The appellee argues that the witnesses were only testifying as to the value of the entire tract, considering its highest and best use as a subdivision. It is difficult to discern the basis for Mr. Patterson’s after value, but it is obvious to us that both Mr. Hill and Mr. Ballard based their estimates of damage on the loss of potential lots in a non-existent subdivision. It is true, as appellee asserts, that the landowner may show all the advantages his property possesses, and that is what proper testimony by witnesses would accomplish, since both Mr. Hill and Mr. Ballard could have testified as to the value of the entire tract, considering its suitability for a subdivision rather than a rural homestead. Therefore, because the testimony of Mr. Hill and Mr. Ballard should have been stricken, we reverse and remand for a new trial.
The appellant also argues that the trial court erred in rulings concerning the admissibility of evidence concerning special damages, i.e. damages to a pond. This issue is tied to the trial court’s refusal to grant a continuance so that the contrator, who had agreed to indemnify the appellant for damages arising from its negligence, could be joined as a party to the suit. Since the case is being remanded for a new trial, we find it unnecessary to address this point.
Finally, the appellant argues that the trial court erred in its instruction to the j ury regarding the measure of damages. The appellant argues that, since the taking was by an entity authorized to condemn land by federal law [under the Federal Energy Regulatory Commission, pursuant to 15 U.S.C. 717f (h) (1976)], the measure of damages should be the federal standard, that is, the difference in the fair market value of the land with and without the easement. Nichols on Eminent Domain, Vol. 4, § 12.41.[2].
We disagree. The measure of damages in Arkansas in a utility easement case is well settled. The landowner may recover compensation for the full market value of the land taken for the easement, plus the damage, if any, to the remainder. Arkla Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968). As stated in Ozark Gas Transmission Systems v. Barclay, 10 Ark. App. 152, 662 S.W.2d 188 (1983).
We find nothing in the language of this enactment which requires in either court the application of rules of substantive law differing from those in similar proceedings under State law. . . .
We reverse and remand for a new trial.
Reversed and remanded.
Mayfield, C.J., and Cracraft, J., agree. | [
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Wendell L. Griffen, Judge.
Appellants David and Margaret Statler petitioned the Randolph County Circuit Court to reform their deed and the deed of their neighbors, appellees Bobby and Rose Painter, to correct the deeds’ description of the parties’ common border. The trial court refused to reform the deeds, and appellants appeal. We affirm in part and remand in part.
Appellants acquired their property in 1997 from the Hufst-edler family, who owned nearly seventy acres of land in Randolph County. That year, Darren Hufstedler informed appellant David Statler that he would like to sell some of the family’s land. Statler told Hufstedler that he wanted approximately ten acres. Hufstedler testified that whichever ten acres Statler chose was fine with him. Statler staked out the particular area he wanted, showed the area to Hufstedler, and contacted Terry Throesch to survey the area and provide a description for the deed. The chosen tract was irregularly-shaped but resembled a triangle with a wide base on the south, two fairly even sides on the west and east, and a jagged top on the north.
Throesch observed the area Statler had staked out, set the corners, and proceeded to conduct the survey. From that survey, he prepared a legal description that would appear in the deed from the Hufstedlers to appellants. However, as Throesch would later admit, he made a mistake in surveying appellants’ eastern border; his line was not far enough east and, as a result, the description did not include a .29-acre strip that appellants had staked out. Throe-sch’s description follows, with the mistaken portion emphasized:
A part of the Northwest Quarter of the Northwest Quarter (NW1/4 NW1/4) of Section Five (5), Township Eighteen (18) North, Range One (1) West, Randolph County, Arkansas, more particularly described as follows: Commencing at the Northwest corner of the said Northwest Quarter of the Northwest Quarter (NW1/4 NW1/4); thence South 00° 13' 06" West along the West line of said...NWl/4 NW1/4, 224.76 feet to the point of beginning; thence S. 89° 13' 35" East parallel with the North line of said...NWl/4 NW1/4,255.00 feet; thence North 00° 13' 05" East parallel with the West line of said.. .NW 1/4 NW 1/4170 feet; thence South 89° 13' 35" East 297.00 feet; thence South 40° 50' 22" East 150.00 feet; thence South 49° 46' 17" East 326.35 feet to the Northwesterly right of way line of U.S. Highway #62; thence in a Southwesterly direction along said right of way line the following meanders: a nontangent curve to the left, 276.83 feet, said curve having a central angle of 02° 49' 36" and a radius of 5611.06 feet; North 26° 27' 51" West 10.00 feet; a nontangent curve to the left, 404.32 feet, said curve having a central angle of 04° 07' 16" and a radius of 5621.06 feet; South 30° 35' 07" East 10.00 feet; a nontan-gent curve to the left, 351.83 feet, said curve having a central angle of 03° 35' 33" and a radius of5611.06 feet; thence leaving said right of way line, North 00° 13' 06" East along the West line of said...NWl/4 NW1/4, 660.00 feet to the. point of beginning, containing 9.054 acres, and subject to an easement for road purpose along the West side thereof.
The error would not be discovered for several years; it was not apparent to appellants merely by looking at the survey.
Meanwhile, the Hufstedlers sold their remaining land to the Walton family in 1998. Some of the land conveyed to the Waltons abutted appellants’ eastern border. The Walton deed described that common border in a manner that corresponded precisely to the erroneous description in appellants’ deed:
thence leaving said right-of-way line, North 49° 46' 17" West 326.35feet; thence North 40° 50' 22" West 150feet. . .
The record does not reveal who prepared this description, but in any event, the error in appellants’ survey carried over into the Walton deed.
In 1999, Throesch was hired to divide the Walton land into three equal tracts of 19.08 acres each. He did so and prepared legal descriptions of each tract. He did not go into the field to create these descriptions. In describing the border line that Tract II shared with appellants, Throesch used the same erroneous description that appeared in appellants’ deed. On April 3, 2000, the Waltons deeded Tract II to appellees. Appellees’ deed contained the following description of the border line that they shared with appellants:
thence leaving said right-of-way, N. 49° 46' 16"W. 326.35feet; thence N. 40° 50' 22"W. 139.60feet.
Except for a slight variation, this description of the boundary line in appellees’ deed corresponds to the erroneous description of it in appellants’ deed. Thus, Throesch’s original mistake carried over into appellees’ deed.
The end result of Throesch’s mistake is that appellees’ deed contains the .29-acre disputed strip that should have been included in appellants’ deed.
In 2001, in the course of setting appellees’ corners on an unrelated matter, Throesch realized his mistake. He informed appellants and appellees and tried to help them resolve the situation, but his efforts were not successful; both parties wanted the strip. Thereafter, appellees began clearing the strip to erect a fence. On August 23, 2002, appellants filed suit, seeking a declaration that they owned the strip and seeking monetary damages from appellees for the destruction of trees. At trial, without objection from appellees, appellants changed their claim to seek reformation of their deed and appellees’ deed on the ground of mutual mistake. The trial court declined to grant reformation, and this appeal followed.
Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. Lambert v. Quinn, 32 Ark..App. 184, 798 S.W.2d 448 (1990). A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980). A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. See Lambert v. Quinn, supra. Whether a mutual mistake warranting reformation occurred is a question of fact. Id.
Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial judge to evaluate the evidence, Akin v. First National Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988), and the proof need not be undisputed. Lambert v. Quinn, supra. Although we review traditional equity cases de novo, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial judge’s findings but whether we can say that the trial judge’s findings are clearly erroneous. Id.
The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is an adequate ground for reformation if the writing fails to reflect the parties’ true understanding. See Jones v. Jones, 27 Ark. App. 297, 770 S.W.2d 174 (1989). A court may, through reformation, correct the description in a deed where the deed incorrectly reflects the property that the parties intended to be conveyed. See, e.g., Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984); Galyen v. Gillenwater, 247 Ark. 701, 447 S.W.2d 137 (1969); Lambert v. Quinn, supra.
In the case at bar, it is undisputed that the Hufstedlers intended to sell and appellants intended to buy the disputed strip of land. Darren Hufstedler allowed appellant David Statler to choose the property he wanted. Statler staked out the area that contained the strip. Throesch testified that Statler showed Hufstedler what he wanted to buy. Throesch then completed the survey that resulted in the incorrect description of the eastern border. Thus, through the mistake of the person who wrote the land description, the strip was not contained in appellants’ deed, even though both buyer and seller intended that it would be.
Ordinarily, appellants would be entitled to reformation of their deed for such a mistake. However, a party cannot obtain reformation if reformation would prejudice a subsequent bona fide purchaser. Maurice v. Schmidt, 214 Ark. 725, 218 S.W.2d 356 (1949); 76 C.J.S. Reformation of Instruments § 58 (1994); 66 Am. Jur. 2D Reformation of Instruments § 62 (2d ed. 2001); 14 Richard Powell, Powell on Real Property § 81A.07[3][d] (2000); 2 Dobbs Law of Remedies § 11.6(1) at 743, 754 (2d ed. 1993); Annot., Right to Reformation of Contract or Instrument as Affected by Intervening Rights of Third Persons, 79 A.L.R. 2d 1180 (1961 & Supp. 2000). The reason behind such a rule is that, when a bona fide purchaser acquires an interest in land and makes an investment in the land, that party is entitled to have his expectations protected. Powell on Real Property, supra.
We hold that appellees were bona fide purchasers, such that they should not be divested of the disputed strip through reformation of the deeds. If reformation were allowed in this case, appellees would lose ownership of the strip, even though the strip is contained in their deed description, they purchased the strip, and they bought their land with no notice of the mistake in the deed descriptions. Although there was some evidence that, after appellees purchased their property, they were unsure about where the common boundary line was located and they later recognized appellants’ ownership of the strip, there is nothing to show that, at the time of purchase or before, they had notice of any claim on the land they were purchasing. See Grasby v. Findley, 198 Ark. 1015, 132 S.W.2d 379 (1939). Therefore, appellees should be regarded as bona fide purchasers whose interests cannot be prejudiced by reformation. The trial court’s denial of reformation is therefore affirmed.
Despite our affirmance of this case, we remand to the trial court to consider what appears to be an error in the order appealed from. The order sets out each parties’ ownership by reciting the legal descriptions of each party’s land. Because the deeds were not reformed, those descriptions should read the same as the descriptions in the parties’ deeds. However, the trial court’s recitation of appellants’ description appears to us to read as though it were reformed. Lines 13 and 14 contain the call lines “South 61° 31' 40" East 142.15 feet, thence South 40° 26' 39" East 332.16 feet.” We believe that this may be the description of the border as it would have read if the deed had been reformed, not as it was actually deeded. We therefore remand to the trial court for the sole purpose of considering whether a mistake occurred in drafting the order and, if so, to rectify it.
Affirmed in part; remanded in part.
Neal and Crabtree, JJ., agree.
While we cannot be sure of the trialjudge’s reason for denying reformation, because he announced no reason, we may affirm the court’s decision if it was correct for any reason. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003). | [
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George K. Cracraft, Judge.
Thomas Gwin appeals from a determination of the Arkansas Workers’ Compensation Commission that his attorney is not entitled to have the remaining attorney’s fees allowed him by the Commission in one lump sum because an order filed on November 30, 1981 regarding the manner in which attorney’s fees were to be paid had become res judicata. We agree with the Commission.
On March 27, 1978 the Commission found that Thomas Gwin was permanently and totally disabled and awarded him full benefits as provided in the Act. It also awarded his attorney the maximum attorney’s fees allowable on the controverted portions of the claim. The award made no provision for the manner in which the attorney’s fees would be paid but the carrier made these payments in quarterly installments. A subsequent petition filed by Gwin for allowance of mileage expense incurred for medical treatment also included a petition that his attorney’s fees be paid biweekly. On November 31, 1981 the Administrative Law Judge entered an order allowing the mileage expense and directing that the attorney’s fees be paid “on a biweekly basis as accrued.” Although Ark. Stat. Ann. § 81-1532.1 (Supp. 1983) authorizing the Commission to approve lump sum attorney’s fees for legal services was then in effect, no request for lump sum payment of attorney’s fees was made. In this respect this case is distinguished from Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982) where we approved an order authorizing lump sum payment of fees awarded on a weekly basis prior to the effective date of the Act. There the issue of the manner of payment could not have been raised in the prior hearing.
Almost a year later a petition was filed asking that the balance of attorney’s fees be paid in one lump sum as provided in § 81-1332.1. The Commission affirmed the Administrative Law Judge’s determination that the order of November 30,1981 was a bar to the relief requested under the doctrine of res judicata. The appellant contends that the Commission erred in that ruling. We disagree.
Generally speaking res j udicata applies where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Wells v. Ark. Public Service Commission, 272 Ark. 481, 616 S.W.2d 718 (1981). Although the Compensation Commission is not a court, its awards are in the nature of judgments. In Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W.2d 386 (1948) and Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976), the court declared that the doctrine of res judicata, which forbids the reopening of matters once judicially determined by competent authority, applies to decisions of the Arkansas Workers’ Compensation Commission.
The appellant argues that the issue of the lump sum attorney’s fee was not “necessarily within the issue considered below and therefore not one which might have been litigated in it.” He argues that the issue of lump sum fee was not mentioned in the previous proceeding and had no bearing on a decision that the controverted fee previously awarded be paid in biweekly installments. He contends that he was not required to raise that issue and that his failure to do so does not foreclose his present request.
At the time the petition seeking biweekly payments was filed the claimant had a right to ask that his attorney be paid in one lump sum. He did not do so and the Administrative Law Judge entered an award directing that the attorney’s fees be paid on a biweekly basis, as they accrue. The order of the Administrative Law Judge became final after a period of thirty days had expired and no petition for a review by the Full Commission was made. Ark. Stat. Ann. § 81-1325 (a) (Supp. 1983). We agree with the Commission that at the end of thirty days the award became final, not only as to the amount of compensation but also as to the manner in which it was to be paid, and that a reopening of the matter is barred by the doctrine of res judicata.
Affirmed.
Glaze and Cooper, JJ., agree. | [
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Layton Roaf, Judge.
Robert Izell, Jr., appeals from a conviction for possession of methamphetamine with intent to deliver following his conditional plea of nolo con-tendere to the offense. On appeal, Izell argues that the trial court erred in 1) denying his motion to suppress the evidence seized during an illegal search of his vehicle; and 2) denying his motion to suppress a statement he subsequently made about the evidence at the Sheriffs Office. We agree that the trial court erred in refusing to suppress the evidence, and reverse and remand.
Robert Izell, Jr., was arrested on January 17, 2000, by Deputy Brandon McCaslin and State Trooper Billy Joe Gatlin on a misdemeanor warrant for violation of a chancery court order prohibiting him from associating with his former girlfriend. Izell was at his parents’ home in Midland, Arkansas, had parked his vehicle in the circular drive of the residence, and had been inside for some time when the officers arrived, knocked on the front door, and were allowed inside.
Deputy McCaslin advised Izell that he was placing him under arrest because he had broken his peace bond. Izell was then handcuffed, searched, and arrested. Both officers led Izell outside where Izell was taken toward his own vehicle, although McCaslin’s vehicle was parked at the opposite end of the lot. McCaslin asked Izell if there was anything in the vehicle that he needed to know about, and Izell answered, “No.” Izell then repeatedly stated, “You can’t search my vehicle.” McCaslin responded, “Robert, I am going to anyway.” Izell objected when McCaslin stuck his head and arms into the vehicle, claimed that he was planting something in the vehicle, and attempted to run away. Izell fell and was placed in McCaslin’s vehicle, while both officers continued the search of the vehicle. McCaslin immediately found a packet of drugs under the front seat.
Izell was transported to the Sebastian County Sheriff s Office, where Captain William Hollenbeck completed a seizure report and interview of Izell. Hollenbeck was briefed by McCaslin about the arrest and was advised that McCaslin planned on “seizing a vehicle that was used in the offense.” Hollenbeck verbally advised Izell of his Miranda rights. According to Hollenbeck, Izell observed that he was having difficulty weighing the methamphetamine, and began “making fun” of Hollenbeck, by telling him “you can’t even turn grams into ounces.” Hollenbeck then asked Izell how much the methamphetamine weighed, and Izell responded that it weighed four ounces. After Hollenbeck got the scale to work properly, the methamphetamine weighed 4.13 ounces. This is the “statement” that Izell sought to suppress.
The trial court denied Izell’s motion to suppress the evidence; however, Izell’s abstract does not contain a ruling on the motion to suppress his statement. Izell subsequently entered into a conditional plea agreement based on a plea of nolo contendere and was sentenced to six years’ imprisonment with an additional ten years’ suspended imposition of sentence.
On appeal, Izell first argues that the trial court erred in denying his motion to suppress the evidence because it was found during an illegal search of his vehicle. When the appellate court reviews a trial court’s denial of a motion to suppress evidence, it views the evidence in the light most favorable to the State, makes an independent determination based on the totality of the circumstances, and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). When the validity of a warrantless search is in issue, this court will make an independent determination, based on the totality of the circumstances, and determine whether the evidence obtained by means of a warrantless search should be suppressed. Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989).
Izell claims that his arrest at his parent’s home was a pretext to conduct an illegal, warrantless search of his vehicle that was lawfully parked outside in the circular driveway of the home. Izell contends that this case turns upon this court’s interpretation of Ark. R. Crim. P. 12.4, which addresses the circumstances under which a vehicle may be searched incident to arrest, and states:
(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.
In contrast, the State contends that Officer McCaslin’s search was authorized pursuant to Ark. R. Crim. P. 12.6(b) because he inventoried the truck to prevent loss and protect himself pursuant to police procedure. Ark. R. Crim. P. 12.6(b) deals with custodial taking of property pursuant to arrest, otherwise referred to as an inventory search, and states:
A vehicle which is impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times, and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.
We find that Izell’s arguments regarding the search of his vehicle have merit and hold that the search cannot be upheld pursuant to either Rule 12.4 or 12.6.
Izell was arrested at his parents’ home for a misdemeanor violation of a chancery court order. Testimony established that Izell had been there approximately thirty to forty-five minutes before he was arrested, and that his vehicle was parked on a private lot in a circular driveway behind the home. Of utmost importance, Izell was not in the vehicle or its immediate vicinity at the time of the arrest. See Chimel v. California, 395 U.S. 752 (1969) (discussing area within immediate control).
As a general rule, searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment. Fultz, supra. This rule is subject to a few specifically established exceptions, and those who seek to prove an exception must demonstrate that the exigencies of the situation made that course imperative. Id. The burden is on the party claiming the exception, the State, to establish an exception to the warrant requirement and to show its need. Id.
In Fultz, supra, officers obtained a warrant for Fultz’s arrest, went to his home, and arrested him somewhere in the vicinity of his carport kitchen door. His car was in “plain view” at the time of the arrest. The officers had knowledge that Fultz had used the car to transport drugs and had bought the car with drug money. After Fultz informed the officers that there might be a gun in the car, the officers seized and searched it pursuant to the department’s vehicle inventory policy. The supreme court determined that, under these circumstances, the officers were entitled to perform an inventory search of the car after having legally seized it, pursuant to the plain-view exception.
Fultz is clearly distinguishable from the facts of Izell’s case. Here, Izell’s vehicle was not in plain view at the time of his arrest, but instead was parked outside while Izell was arrested inside the home. Additionally, there is no indication that the vehicle contained any objects that were evidence of a crime or that the officers had probable cause to believe the vehicle contained any evidence of a crime, fruit of a crime, or an instrumentality of a crime.
When Izell was arrested, he was neither in the vehicle nor in its immediate vicinity as required by Ark. R. Crim. P. 12.4. No evidence was presented by the State to indicate that the vehicle contained any objects which were connected with the offense for which the arrest was made, misdemeanor violation of a chancery court order, or to establish any connection between the misdemeanor offense and any reason to search the vehicle incident to that arrest. The officers admitted that Izell strongly objected to the search before it was conducted. An arrest may not be used as a pretext to search for evidence of other crimes. Folly, supra; see also Long v. State, 256 Ark. 417, 508 S.W.2d 47 (1974). Therefore, there was not a legal search of Izell’s vehicle incident to his arrest.
We further consider the State’s argument that Officer McCaslin’s search of Izell’s vehicle was authorized pursuant to police department policy and Ark. R. Crim. P. 12.6(b). Arkansas appellate courts recognize the “inventory search” as a well-defined exception to the warrant requirement of the Fourth Amendment as codified in Ark. R. Crim. P. 12.6(b). Folly, supra. The State contends that Izell’s attempt to flee provides “additional evidence of guilt” and cites Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). The State also relies upon Folly v. State, supra, for the proposition that “the fact that a vehicle is .legally parked does not necessarily negate the need to • take the vehicle into protective custody.”
A police officer may conduct a warrantless inventory search of a vehicle that is being impounded to insure against claims of lost, stolen, or vandalized property and to guard the police from danger. Thompson, supra. The police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures. Id. However, we do not agree that Folly v. State provides authority for upholding the search of Izell’s car in this instance. In Folly, after receiving phone calls indicating that the appellant had threatened a woman and her sister, the police approached him in his vehicle in a Holiday Inn parking lot, searched him for weapons, and found a plastic bag containing contraband and a six-inch lock-blade knife. After the appellant was taken into custody, but prior to having his vehicle towed, the police conducted an inventory search of the vehicle during which they found additional contraband.
This court upheld the denial of the motion to suppress, first noting that where the search and not the arrest is the officer’s true objective, the search is not a reasonable one within the meaning of the Constitution. However, the court further observed that the fact that a vehicle is legally parked does not negate the need to take the vehicle into protective custody, and that factors such as hazard to public safety, possibility of vandalism, and the risk of theft are to be considered when determining whether protective custody is necessary. In upholding the inventory search of Folly’s vehicle, the court noted that the police had followed standard procedures in impounding and inventorying the vehicle and were acting in good faith, where the vehicle was to be left in a motel parking lot, the appellant was taken into custody on a serious charge, and the likelihood existed that the vehicle would be vandalized if not taken into protective custody.
In Thompson v. State, supra, also clearly distinguishable from the present case, the appellant was stopped in his vehicle because the tail fights were not working, and was cited for not having a valid driver’s license or proof of insurance, but was not placed under arrest. The officer attempted to contact friends and family members of the appellant to find someone to drive his vehicle. Since no one could be located, the officer informed the appellant that his car would have to be impounded and its contents inventoried. In the course of the inventory, the officer found several plastic bags containing methamphetamine. The supreme court stated that it is well settled that police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to protect an owner’s property, to insure against claims of loss, theft, or vandalism, and to guard the police from danger. The court held that since the appellant was unable to legally drive his car, the officer acted in good faith and in accordance with standard police procedures in impounding and taking an inventory of the appellant’s vehicle.
In the present case, Izell was arrested, handcuffed, and patted down inside his parents’ home. Officer McCaslin then took Izell out the back door and towards his truck instead of going straight to Officer McCaslin’s vehicle. Although there was testimony that Izell had asked for his wallet from the truck, Trooper Gatlin testified that he had retrieved it from the seat of the vehicle through an open window and had given it to Izell’s father before the search. Indeed, McCaslin stated that although the vehicle was off the road and no danger to anybody, he was going to tow it so “[he] wouldn’t be responsible for it.” Officer McCaslin testified that he inventoried Izell’s truck pursuant to department policy and that his purpose in inventorying the truck was to prevent loss and protect himself. Officer McCaslin further stated that pursuant to policy “any time you make an arrest or you take a person out of their vehicle, that vehicle becomes my responsibility . . . [e]ven though it was parked where it was. ...”
Although we agree that this court has stated that the fact that a vehicle is legally parked does not necessarily negate the need to take the vehicle into protective custody, we set forth factors that must be examined to determine the need for protective custody, such as the risk of theft, vandalism, or the hazards to public safety. None of the factors noted by this court in Folly are present in this case. Here, Izell was parked on private property behind his parents’ home, and therefore, there was no hazard or risk to public safety or any apparent risk of vandalism. Izell was not arrested for a serious offense and had already been restrained and patted down, thus he posed no danger to the officers or to any evidence in the vehicle. Of particular import is the fact that Izell was not arrested in or within the immediate vicinity of his vehicle. Therefore, McCaslin’s testimony concerning the sheriff department’s policy of inventorying vehicles when someone is arrested and removed from a vehicle is of no import since the circumstances necessary to trigger the policy were nonexistent.
There appears to be no legitimate basis for Officer McCaslin’s decision to inventory and tow Izell’s vehicle over his objections. No probable cause existed to assume the vehicle was related to any criminal activity, and the vehicle was, in fact, unrelated to the violation of the chancery court order. The vehicle was not likely to be in danger of tampering, theft, vandalism, or serve as a hazard to public safety. Izell’s attempted “flight” after McCaslin announced his intent to search the vehicle has no relevance whatsoever to our analysis, but would instead pertain to a challenge based on sufficiency of the evidence. See Chapman, supra. Accordingly, viewing the evidence in a light most favorable to the State and making our own independent determination based on the totality of the circumstances, we conclude that the trial court’s denial of Izell’s motion to suppress the evidence must be reversed.
Izell also argues that the trial court erred in denying his motion to suppress the statement he made at the sheriffs office, as derivative evidence that is fruit of the poisonous tree. The State asserts that this argument is not preserved for appeal because Izell did not raise this argument to the trial court. Moreover, although Izell filed a separate motion to suppress the statement, and the trial court conducted a separate hearing on this motion several months after the earlier suppression hearing concerning the evidence, Izell’s abstract contains neither an oral nor written ruling by the trial court on this motion. Nevertheless, the only statement at issue concerns the weight of the methamphetamine found in the illegal search of Izell’s vehicle, evidence that we have held must be suppressed. The statement was obtained as a direct result of the illegal search, and must also be suppressed. See Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). In sum, there will be no evidence to testify about, with respect to its weight or anything else.
Reversed and remanded.
Robbins and Baker, JJ., agree. | [
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Terry Crabtree, Judge.
On March 4, 1997, George Wood was electrocuted by a downed power line. Mr. Wood was an employee of West Tree Service and was cleaning up debris that was left by a recent tornado. The coroner’s report stated that the decedent was struck in the face as an energized wire fell off the tree branch he had picked up.
Mr. Wood’s body was taken to Southwest Regional Medical Center where the Coroner’s office inspected the body and took blood and urine samples. A bag of marijuana and a package of ZigZag cigarette rolling papers were found in the pockets of Mr. Wood’s pants. Tests performed on the samples by the State Crime Lab revealed that marijuana metabolites were present in the samples taken from Mr. Wood’s body. These findings were confirmed by the UAMS Toxicology Department.
Appellee, West Tree Service, disputed compensability of the claim of appellant Felicia Wood for dependency benefits, but stipulated that should Mr. Wood’s death be ruled compensable, appellant Felicia Wood, Mr. Wood’s daughter by a previous marriage, should qualify as a dependent child.
The Workers’ Compensation Commission found that the presence of marijuana metabolites in Mr. Wood’s system constituted the presence of an illegal drug and therefore invoked the rebut-table presumption found in Ark. Code Ann. § 11 — 9— 102(5)(B)(iv)(b)(Repl. 1996) that Mr. Wood’s death was substan tially occasioned by the use of marijuana. The full Commission denied benefits on that basis. Appellant asserts three points on appeal: (1) whether the Commission properly performed its function of determining the credibility of the witnesses and the proper weight to be given their testimony; (2) whether the Commission correctly interpreted the testimony of Jimmie Valentine, Ph.D.; and (3) whether substantial evidence exists to support the findings and decision of the Commission. We affirm.
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion: Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). 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. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
It is now clear that testing positive for marijuana metabolites is sufficient to establish a rebuttable presumption that Mr. Wood’s injury was substantially occasioned by the use of marijuana. Brown v. Alabama Electric Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998); Weaver v. Whitaker Furniture Co., Inc., 55 Ark. App. 400, 935 S.W.2d 584 (1996). This court has addressed Ark. Code Ann. §11-9-102(5)(B)(iv) a number of times. It has found that when the urine sample is tested for delta-9-tetrahydrocannabinol, if the result is positive, this evidence establishes the rebuttable presumption.
In both Brown, supra, and Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), this court affirmed the Commission’s decision denying compensability because metabolites were found in the appellants’ urine samples.
The appellants argue on appeal that the Commission erred by finding that the testimony of two witnesses, both related to the decedent, did not sufficiendy rebut the presumption of intoxication. This argument is without merit. The question of whether the testimony of an interested party is sufficient to rebut the presump tion remains a question for the trier of fact. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). We cannot find that the Commission erred in its decision.
For her second point on appeal, the appellants argue that the Commission misinterpreted the testimony of Jimmie Valentine, Ph.D. It is the function of the Commission to determine the credibility and weight due a witness and his testimony, and its findings as to the inferences to be drawn from the testimony, once made, have the force and effect of a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). Dr. Valentine was the only expert who testified, and his opinion was that the decedent was impaired at the time of his accident. The appellants did not carry their burden of proving by a preponderance of the evidence that the decedents death was not substantially occasioned by the use of marijuana.
For their third point on appeal, the appellants argue that the Commission’s decision was not supported by substantial evidence. Substantial evidence was presented through the toxicology reports and the doctor’s testimony. A decision by the Workers’ Compensation Commission is not reversed unless it is clear that fair-minded persons could not have reached the conclusion if presented with the same facts. Golden v. Westark Comm. College, 333 Ark. 41, 969 S.W.2d 154 (1998). We cannot find that the Commission erred.
Affirmed.
Pittman, Jennings, Bird, and Neal, JJ., agree.
ROAF, J., dissents. | [
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OLLY NEAL, Judge.
The Office of Child Support Enforcement (OCSE) appeals the Bradley County Chancery Court’s order terminating appellee Joe Morris Calbert’s child-support obligation. For reversal, OCSE contends that the trial court erred in terminating appellee’s child-support obligation for his eigh teen-year-old son, Cedric, because Cedric is still in high school and will not graduate until May 2000.
Appellee Joe Calbert and Denise Calbert were divorced on June 25, 1984. Denise Calbert was awarded custody of the parties’ minor children, and appellee was ordered to pay $40 in weekly child support. On May 13, 1999, appellee filed a notice to terminate income withholding for child support pursuant to Arkansas Code Annotated section 9-14-237(a)(l). OCSE filed an objection to appellee’s notice, and countered that appellee’s child-support obligation should extend beyond Cedric’s eighteenth birthday, because he would not graduate from high school until May 2000. The chancellor found that the parties’ son should have graduated in May 1999; that his eighteenth birthday was June 2, 1999; and that appellee’s child-support obligation would terminate as of that date. This appeal followed.
There is no factual dispute in this case. It was tried largely on stipulations. The parties stipulated that appellee and his ex-wife agreed that the child would repeat the second grade, that he had completed twelve years of public school, and that he would reach his eighteenth birthday before graduating from high school. The parties also stipulated that the child spends about seventy-five percent of his time in homes other than that of his mother. That time is spent at his girlfriend’s home and at the appellee’s home. The only issue at trial was whether the appellee’s obligation to pay child support would terminate when the child reached eighteen years of age.
OCSE points out that appellee and his ex-wife mutually agreed to have Cedric repeat the second grade, and were it not for that decision, Cedric would have graduated prior to his eighteenth birthday. OCSE contends that the chancellor’s order should be reversed because the facts in evidence show that although Cedric Calbert is eighteen, he remains a high school student and will not graduate until he is nineteen years old.
Arkansas Code Annotated section 9-14-237(a)(l) (Repl. 1998) provides:
(a)(1) An obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later, or when the child is emancipated by a court of competent jurisdiction, marries, or dies, unless the court order for child support specifically extends child support after such circumstances.
OCSE cites McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994), and Matthews v. Matthews, 245 Ark. 1, 430 S.W.2d 864 (1968), in which the appellate courts have affirmed an award of child support beyond a child’s eighteenth birthday where the child has remained in school. Indeed, Arkansas Code Annotated section 9-12-312(a)(5)(A) provides:
The court may provide for the payment of support beyond the eighteenth birthday of the child to address the educational needs of a child whose eighteenth birthday falls prior to graduation from high school so long as such support is conditional on the child remaining in school.
This court reviews chancery cases de novo, and “when we can plainly see where the equities lie, we may enter an order that the chancellor should have entered, or we may decline to do so if justice will be better served by remand.” See McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999). Here, we affirm the order terminating child support for a different reason than that given by the chancellor.
The parties stipulated the following facts: 1) Denise and Joe Calbert divorced on June 25, 1984; 2) Denise and Joe Calbert agreed that the child would repeat the second grade; 3) Denise and Joe Calbert agreed that the child had completed twelve years of public school education beginning with the first grade; 4) Denise and Joe Calbert agreed that the child would be eighteen years old on June 2, 1999; 5) Denise agreed that the child spends seventy-five percent of the time outside of her home and that time is spent with his girlfriend and the appellee.
The chancellor seemed to base his decision on the fact that Cedric should have graduated from high school by his eighteenth birthday. That decision, however, ignores the fact that appellee was instrumental in delaying Cedric’s graduation by one year in agreeing that he should repeat the second grade.
The language of Arkansas Code Annotated section 9-14-237(a)(1) provides that “[a]n obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later....” (emphasis supplied). Appellee’s position that the child should have graduated from high school disregards his central role in changing when the child should have graduated. A parent cannot prevent a child from graduating and then complain about the result of his own conduct.
We affirm the order, even though Cedric has not graduated high school, because the evidence shows that the majority of his time is spent outside of the custodial parent’s home. This court is bound by the stipulations of the parties. See Turner v. Eubanks, 26 Ark. App. 22, 759 S.W.2d 37 (1988). The stipulations of the parties indicate that Cedric spends only twenty-five percent of his time in Denise Calbert’s home. The overwhelming majority of the child’s time is spent at the home of appellee or the child’s girlfriend. Based on this evidence we conclude that the trial court’s decision to terminate child support was not clearly wrong.
Affirmed.
Jennings, J., agrees.
Stroud and Roaf, JJ., concur.
Robbins, C.J. and Hart, J., dissent. | [
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JOHN F. STROUD, Jr., Judge.
This case involves conflicting hen claims with respect to objects of personal property. The chancellor found that the lien of appellee, First National Bank of DeWitt, had priority over the Hen of appellant, J-M Manufacturing Company, Inc. We affirm.
The case was decided on a motion for summary judgment, and the following sequence of events is helpful in understanding the issue on appeal:
1. Appellee, First National Bank of DeWitt, perfected its security interest in items of personal property owned by Thomas M. and Betty J. Howe by filing U.C.C. financing statements on December 6, 1989, and December 8, 1989, with the circuit clerk and the Secretary of State, respectively.
2. On February 10, 1993, appellant, J-M Manufacturing Company, Inc., obtained a judgment against Thomas Howe d/b/a Howe Company. The judgment was filed on March 5, 1993.
3. On December 6, 1994, the period of perfected filing of appellee’s security interest expired (after five years), and no continuation statement was filed.
4. On April 27, 1995, the Howes filed for bankruptcy.
5. On December 30, 1995, a foreclosure decree was entered in favor of appellee and a public sale was subsequently held.
Appellant’s sole point of appeal contends that the chancery court erred in finding that appellee’s lien had priority over appellant’s judgment lien so as to entitle appellee to receive the proceeds from the judicial sale of the personalty. In making its argument, appellant primarily relies upon Arkansas Code Annotated section 4-9-403(2) (Supp. 1999), which provides:
(2) Except as provided in subsection (6) a filed financing statement is effective for a period of five (5) years from the date of filing. The effectiveness of a filed financing statement lapses on the expiration of the five-year period unless a continuation statement is filed prior to the lapse. If a security interest perfected by filing exists at the time insolvency proceedings are commenced by or against the debtor, the security interest remains perfected until termination of the insolvency proceedings and thereafter for a period of sixty (60) days or until expiration of the five-year period, whichever occurs later. Upon lapse the security interest becomes unperfected, unless it is perfected without filing. If the security interest becomes unperfected upon lapse, it is deemed to have been unperfected as against a person who became a purchaser or lien creditor before the lapse.
(Emphasis added.)
For purposes of this case, the key sentence of this code section is the last one. There is no dispute that appellee’s perfected security interest lapsed on December 6, 1994, when no continuation statement was filed. Moreover, there is no dispute that appellant became a “judgment creditor” before the lapse. With respect to the protections afforded by this code section, however, the question is not whether appellant was a “judgment creditor,” but whether appellant was a “purchaser” or “lien creditor” before the lapse, so as to take priority under the terms of this code section. Appellant has not established that it was either.
A “lien creditor” is defined as a “creditor who has acquired a fien on the property involved by attachment, levy, or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment.” Ark. Code Ann. § 4-9-301(3) (Supp. 1999). The problem with appellant’s reliance upon its purported status as a “lien creditor,” is that there is nothing in the abstract to establish that fact. Appellant contends in its brief that:
[appellant] caused a Writ of Execution to be issued as filed on April 21, 1995, by the Clerk of the Circuit Court in which the Judgment in favor of Appellant was entered pursuant to the provisions of Ark. Code Ann. (1987) § 16-66-104 directed to the Sheriff of Arkansas County for service upon the Debtor, Thomas Howe, but that service thereof was not made as the result of the filing six (6) days later by Thomas M. Howe and Betty J. Howe on April 27, 1995, of their Petition seeking relief under Chapter 13 of the United States Bankruptcy Code and the prohibition thereunder against taking action against such Debtors to collect money owed or to take property of the Debtor. However, at the time such Petition in Bankruptcy was filed, the Writ of Execution had already been filed with the Clerk and delivered to the Sheriff of Arkansas County, to whom such Writ had been directed, for service upon said Debtor.
Arkansas Code Annotated section 16-66-112 (1987), provides that:
An execution shall be a lien on the property in any goods or chattels, or the rights or shares in any stock, or on any real estate, to which the lien of the judgment, order, or decree extends or has been determined, from the time the writ shall be delivered to the officer in the proper county to be executed.
Our review of the abstract, however, does not reveal anything that establishes this critical fact that is relied upon by appellant. Consequently, appellant has not established its status as a “lien creditor.”
Without the priority status of a lien creditor, Arkansas Code Annotated section 4-9-312(5)(b) (Supp. 1999) comes into play: “So long as conflicting security interests are unperfected, the first to attach has priority.” Here, as far as we are able to determine from the abstract, both security interests were unperfected at the critical time, and therefore appellee’s security interest has priority because it was the first to attach.
Affirmed.
Pittman and Hart, JJ., agree. | [
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